Identification by a head of agency
120 It does not appear that the applicant's contention about nomination of a class by the head of agency, rather than individuals, has been addressed in any detail in the authorities. It is apparent from at least one case that the practice employed by the Commissioner, reflected in the Participants Instrument, may accord with the practice of other heads of agencies where the instruments with which they were concerned directed that they identify persons by reference to their class or membership within a particular division.
121 In R v Will [2017] ACTSC 356; (2017) 13 ACTLR 81, Mr Will was examined before the ACIC. He was then charged with aiding, abetting, counselling or procuring the offence of aggravated robbery. Having been examined, Mr Will contended that he could no longer receive a fair trial and sought orders for a permanent stay of proceedings against him.
122 The evidence established that some 20 people were present for the examination, a number of whom were listening to the examination from a monitoring room and so were not visible to Mr Will. All of the persons present were described as members of the staff of the ACC. Only two of the persons had an employment relationship with the ACIC. All others were AFP officers, 16 of them from ACT Policing.
123 Refshauge J said the following:
[121] Documents provided to Mr Will's lawyers and annexed to Mr Perkins's second affidavit showed how these persons became, relevantly, staff of the Commission. As set out above (at [36]), s 4 of the Australian Crime Commission Act defines members of staff of the Commission to include 'a person participating in a ACC operation/investigation'. Paragraph 10 of the Second Determination makes, for the purposes of s 7C(1)(c) of that Act (for which, see [24] above), certain classes of persons are those who are to participate in the investigation under it. They are the classes set out in sch 2 and include persons identified in writing as a person whose duties include providing services in relation to ACC operations or investigations by the head of an agency, whose head is a Board member of the Commission and who is a member or officer of that agency.
[122] On 2 June 2009, the Commissioner of the AFP and Chair of the Board of the Commission, identified in writing a very large number of members or officers of the AFP as such persons. A copy was one of the documents annexed to Mr Perkins' second affidavit.
[123] On 26 June 2009, the Chief Police Officer of the AFP, a member of the Board of the Commission, identified in writing the Chief Police Officer, each Deputy Chief Police Officer and members or appointees of ACT Policing attached, assigned or seconded to the Territory Investigation Group and ACT Policing Intelligence as such persons. A copy was also annexed to the affidavit.
[124] In his evidence, Detective Sergeant Laverty explained the structure of the Territory Investigation Group. Operation Galvanic was, the documents produced in answer to subpoena showed, an operation of the Territory Investigations Group. Senior Constable Williams and Detective Sergeant Laverty were members of that Group which later changed its name to Criminal Investigations. Thus, they were members of staff of the Commission.
124 It can be inferred from the affidavit evidence as to the role of Senior Constable Williams and Detective Sergeant Laverty that those persons were not specifically named in the identification in writing by the Chief Police Officer of the AFP referred to at [123] of Refshauge J's reasons. Rather, what was included, relevantly, was a reference to members of the Territory Investigation Group and ACT Policing Intelligence.
125 I accept that the validity of the head of agency's method of identification by reference to a team was not addressed in R v Will.
126 Similarly, in Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334, whilst it is not entirely clear, it appears that identification may have been by reference to members of a group, rather than to named individuals: see [566]-[575].
127 The applicant refers to Mansfield J's statement in D v ACC and being part of [58] in those reasons that:
The step which the determination required under pars 2 and 3 of Sch 2 of designation by the heads of the nominated agencies serves to confine those within the class or classes specified by the Board. Such designation does not itself alter the class or classes as specified by the Board. As the respondents pointed out, the designation by the heads of the nominated agencies or their subordinates of the individuals from their agencies who would participate in the special investigation would be done in any event.
128 However, it appears to have been assumed by Mansfield J that the head of agency had identified or would identify individuals in that case: whether that was the only manner by which identification by a head of agency (or delegate) could occur was not apparently discussed. Therefore I do not understand D v ACC to be authority that a head of agency must identify individuals rather than a class of persons.
129 Whilst the applicant's argument about the breadth of the identification under the Participants Instrument at first blush may have some attraction, I am not persuaded that the method of identification by the Commissioner was invalid.
130 There is no doubt that the scope of the Participants Instrument is broad, and in two regards. First, by the Participants Instrument the Commissioner has purported to make an identification that extends to persons whose duties include providing services in relation not only to the HRED3 operation, but to other intelligence operations that, on their face, cover a wide range of matters for investigation (see [42] above).
131 Second, the categories of persons identified by the Commissioner are also, at least on their face, broad, and likely to include a large number of WAPOL members. For example, the Participants Instrument includes the category of members or employees appointed to the Metropolitan Region and to Regional Western Australia. There was no evidence before me as to the organisational structure of WAPOL and so I am not able to discern whether those categories cover a significant proportion of all WAPOL members, or the extent to which the identified categories confine the number of members to a smaller subset. However, it is safe to assume that a potentially large number of members would fall within the category of members or employees appointed to the Metropolitan Region and Regional Western Australia.
132 It is perhaps not surprising that many members of WAPOL from a range of teams might have a role to play over time in providing services in relation to ACIC operations and investigations. In the case of the HRED3 determination, as noted above, the specified criminal activity being investigated includes activity that may have occurred, or may occur in the future, relating to high risk and emerging drugs and connected offences and so extends to a broad range of past and prospective offending. The identification of WAPOL members who qualify as falling within a class to participate in an intelligence operation by their membership of a subset, rather than by seeking to name each and every one of those persons, is understandable in such circumstances. But the question is whether it is valid.
133 The terms of para 10 of the HRED3 determination refer to 'the classes of persons to participate': it does not purport to require that the identity of those particular persons who are authorised to participate be fixed and recorded by name. The emphasis is on identifying classes. How that is to be done is not prescribed by para 3(b) of Schedule 2, other than by the requirement that it be in writing. That para 10 of the HRED3 determination requires that classes (not persons) be prescribed tells against the construction preferred by the applicant. It may be, particularly where a class is small, that the head of an agency might be in a position to name identified persons. But in my view the failure to name does not invalidate the identification process performed by the Commissioner. The ACC Act does not exclude identification by reference to other factors such as qualifications, status or job description.
134 The Commissioner has refined the general class referred to in para 3(a)(i) of Schedule 2, by the identification task referred to in para 3(b), from any officer or member of the staff of WAPOL to those officers or members of WAPOL who hold certain offices or positions, including being assigned to named teams. In this manner the Commissioner has identified those persons whose duties include providing services in relation to the intelligence operation under the HRED3 determination and so had identified the class of persons to participate in the intelligence operation. That is not to say that the identification might not have been more precise or done in a different manner. It might be feasible for heads of other agencies listed in para 3 of Schedule 2 to identify particular persons by name: whether that is so may depend on the role of the agency and the number of employees working in a particular area. However, as I have indicated, against the backdrop of the scope of the HRED3 determination, the potential involvement of members of WAPOL from a large number of teams and locations is hardly surprising.
135 The respondents submit that arguments about operational reality as referred to by Mansfield J apply equally to the heads of agencies. I am prepared to accept that there must be some regard paid to the practicalities of the head of an agency of the size of WAPOL repeatedly attending to changing staffing needs (both as to number and expertise). If the Commissioner (even by a delegate) were obliged to identify each and every person by name across the relevant positions within WAPOL, then the process might be unworkable. As a matter of construction, a broader understanding of how the Commissioner may 'identify' a person, being an understanding that permits reference to category or attributes rather than names, is to be preferred.
136 The applicant submits that the effect of upholding the validity of the Participants Instrument is that an enormous number of WAPOL officers are participants in the HRED3 operation, a result that has the potential to threaten the integrity of the examination and trial process. Indeed, it is said that 'thousands of law enforcement officers would be able to be present at an examination without informing the examinee'.
137 In my view the concerns expressed by the applicant as to the potentially enormous number of persons who may be 'members of staff of the ACC' if the Participants Instrument is valid is tempered by reference to the statutory terms.
138 First, the statute provides a range of protections, as discussed at [206]-[217] below (including s 51, s 25A(3) and s 25A(9)).
139 Second, the power to direct those who may be present at an examination is constrained. As an examination may be conducted under s 24A for the purposes of the special ACC operation/investigation, it follows that the power to direct those who may be present at an examination is similarly constrained: LHRC at [202] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J).
140 Third, close attention should be paid to the text of the s 4 definition of 'member of the staff of the ACC'. The person referred to in para (b) in the s 4 definition of 'member of the staff of the ACC' is not simply any person who falls within the class or classes of persons 'to participate' in a relevant operation (s 7C) or 'a person whose duties include providing services in relation to' the relevant operation (Schedule 2). It is a person 'participating' in an ACC operation/investigation. The form of the verb, modifying 'persons', must not be overlooked. I consider the definition requires that in order to be a member of the staff of the ACC, not only must the relevant WAPOL member fall within the categories of persons identified by the Commissioner and so be a person who can participate, but they must also be participating in the relevant operation.
141 This construction of the definition, one that is supported by the applicant, means that the references in s 25A(3) and s 25A(7) to a member of the staff of the ACC is a reference to a smaller subset of the people included in the Participants Instrument. The risk, suggested by the applicant, of 'thousands of law enforcement officers' or even a large group of otherwise interested or uninterested WAPOL members attending an examination may be managed.
142 Some support for this construction may be found in Brady, where Hollingworth J was prepared to accept, having regard to the nominated AFP teams that were running the investigation, that particular AFP officers present at the examinations were persons 'whose duties include providing services in relation to the relevant determination', but considered that was not necessarily synonymous with 'participating in an ACC operation/investigation' for the purpose of para (b) of the definition of member of the staff of the ACC (at [550]). It was not necessary for Hollingworth J to determine the issue. However her Honour also noted that the concept of a person 'participating in an ACC operation/investigation' is very broad.
143 I note that there are other references to a 'member of the staff of the ACC' in the ACC Act (s 20(2)(a), s 21A(1)(a), s 25B(3)). The manner in which the phrase is used elsewhere does not direct that it should be given any meaning different to that I have preferred, and gives rise to no inconsistency.
144 Whilst not determinative of the scope of the meaning of the s 4 definition, I also note that Mr Lusty in this case did not proceed on the basis that the question as to who was a member of the staff of the ACC was answered by reference to the Participants Instrument. Indeed, he said he had not seen it. It is not a public document. Rather Mr Lusty proceeded on the basis that Officer Masterson's conduct and position, in part as explained to him by others, was determinative.