LX v Commonwealth of Australia

The Issues on the Application 24 The Board of the ACC has a statutory power to authorise the ACC to investigate matters relating to federally relevant criminal activity. The investigation must be limited to matters relating to federally relevant criminal activity. The Board then has the statutory power to determine that an investigation relating to federally relevant criminal activity is a special investigation. Before it takes this latter step, it must be satisfied that ordinary police methods of investigation into the matters (relating to federally relevant criminal activity) are not likely to be effective to permit the laying of charges against offenders. As a convenient form of shorthand, I will call this the ordinary police methods of investigation issue. The determination of the issue is a pre-condition to the exercise of the statutory power to determine that an investigation is a special investigation. 25 The composition of the Board of the ACC suggests a body well-placed in terms of experience and expertise to address the ordinary police methods of investigation issue. The assessment to be made by the Board of the ACC is an assessment of likelihood not of certainty. 26 With these opening remarks in mind, I turn to identify the applicant's submissions. The applicant's first submission is that the 2013 Determination is invalid because it is too broad. In other words, it did not satisfy the statutory requirements for an authorised investigation which has been determined to be a special investigation. The applicant's principal contention in support of this submission is that the ordinary police methods of investigation issue provides a limitation on the breadth of a permissible investigation. In other words, "the matters relating to federally relevant criminal activity" must be identified with sufficient particularity to permit of an answer to the ordinary police methods of investigation issue. I think that the applicant also advanced a more general contention that the 2013 Determination is too broad irrespective of the ordinary police methods of investigation issue. The submission seemed to be that the ambulatory nature of the investigation is fatal to its validity. The ambulatory nature of the investigation was said to arise from the fact that the matters to be investigated could not be identified at the outset (i.e., at the time the 2013 Determination was made), but only from time to time as the authorised ACC officer formed the reasonable suspicion identified in the definition of HRCTs in the 2013 Determination. 27 The applicant's alternative submission is that the 2013 Determination is invalid because the decision by the Board of the ACC with respect to the ordinary police methods of investigation issue was legally unreasonable. 28 In one sense, this is another way of approaching the same issue. If the ordinary police methods of investigation issue does not operate directly on the permissible breadth of an investigation, nevertheless, the issue must be addressed by the Board of the ACC and if the 2013 Determination is so broad that that cannot be done, then a decision purporting to do so, is legally unreasonable. The applicant's submission is that the decision of the Board of the ACC on the ordinary police methods of investigation issue lacked an evident and intelligible justification and was legally unreasonable (Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332 at 367 [76] per Hayne, Kiefel and Bell JJ; see also Minister for Immigration and Border Protection v Singh and Another (2014) 231 FCR 437 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11). 29 In National Crime Authority v A1 (1997) 75 FCR 274 ("A1") and AB v National Crime Authority (1998) 85 FCR 538 ("AB"), the Full Court of this Court considered the validity of a reference of a matter relating to a relevant criminal activity to the National Crime Authority for investigation. The relevant Act was the National Crime Authority Act 1984 (Cth). 30 The applicant submitted that authorities under that Act were of very limited relevance to the Act. It seems to me that the general principles identified in A1 and AB are relevant to special investigations under the Act. The general principles about the nature of investigations under the National Crime Authority Act identified by von Doussa and Sundberg JJ in A1 apply with equal force to special investigations under the Act. Their Honours said (at 294): … An NCA investigation starts with no specific issues or charges. It has only its terms of reference, which may be extremely wide. Its function is inquisitorial, not adversarial. It must pursue lines of inquiry, and in doing so may find that other lines of inquiry appear profitable (cf Douglas v Pindling at 901). The NCA should not be regarded as outside its charter so long as it bona fide seeks to establish a relevant connection between certain facts and the subject matter of the reference, and that connection is one that is reasonably capable of being related to the purpose for which the power is conferred (cf Ross v Costigan at 200-201; 334, Melbourne Home of Ford at 175 at Douglas v Pindling at 905). Because the NCA is an investigative body, it must necessarily embark on a fishing expedition (cf McGuinness v Attorney-General (Vic) at 92 and Douglas v Pindling at 904). Given the nature of an NCA investigation, to say that it is a function of the notice of reference to enable the NCA to ascertain the extent or limits of its powers does not mean that a notice must possess the particularity insisted upon by the primary judge. 31 Furthermore, the similarities between a key section in the National Crime Authority Act, s 13(2), and s 7C(4) are obvious. Section 13(2) of the National Crime Authority Act was in the following terms: A notice under subsection (1) referring a matter to the Authority for investigation: (a) shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity; (b) shall state that the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or a law of a Territory but need not specify the particular offence or offences; and (c) shall set out the purpose of the investigation. 32 In A1, von Doussa and Sundberg JJ considered whether, in order to be valid, a reference under s 13 of the National Crime Authority Act needed to identify four matters and held that a reference did not need to do so. Those matters were as follows: (1) the criminal activities in precise terms; (2) a precise time-frame in which it is said that the criminal activities occurred; (3) the persons or entities who were said to be or may be engaged in the criminal activities; and (4) the conduct of any persons or any transactions the subject of the allegations. Their Honours referred to a case wherein the Minister became aware of a vast increase in the amount of heroin being trafficked in Sydney. He could refer to the National Crime Authority for investigation the question whether the offence of heroin importation has been or is being committed, and if so by whom because this would be "a matter relating to a relevant criminal activity". The reference would be valid even though the identity of the offenders was unknown and even though "no particular conduct or precise transaction is known" (at 290). 33 In AB, there was a reference by the Minister under s 13 of the National Crime Authority Act and a claim that the notices of reference were invalid. The Full Court followed the decision in A1 (see 551-553 especially at 553). 34 Wigney J in XCIV considered the approach taken by von Doussa and Sundberg JJ in A1 to be relevant to the approach to be taken under the Act (at [105]-[113]). 35 It is true that the subject of the 2013 Determination are the activities of HRCTs and that they may be identified from time to time during the life of the Determination. That comes about because it is the reasonable suspicion of an authorised ACC officer about the attributes of an entity that bring it within the definition of a HRCT. In that sense, the scope of the investigation may vary over the life of the Determination. However, I would think that that would be a feature of almost all investigations and I do not think it means that the 2013 Determination itself is ambulatory in an impermissible way. The relevant parameters of the investigation authorised by the 2013 Determination are fixed by reference to the terms of the power. 36 I note that the applicant in this case did not advance the argument advanced in XCIV that the 2013 Determination impermissibly delegated power to an officer or officers of the ACC. That argument was rejected by Wigney J (at [135]-[139]. I also note that at least some aspects of the argument now advanced were considered by Wigney J and rejected by him. His Honour said (at [123]): It is unclear exactly how or why this is said to mean that the description of the circumstances or allegations in the Determination fails to satisfy the requirement in s 7C(4)(a) of the Act. As already indicated, a determination under s 7C can be valid even if it does not identify any suspected offenders at all, or only identifies them in a very general way: NCA v A1 at 289-290. If follows that a determination that describes suspected offenders in a limited way, for example that they possess certain specified characteristics or attributes, is not invalid. That is the case even if the question whether persons or entities possess those attributes is left up to the judgment of officers of the ACC. That is all the more so when that judgment is required to be on objectively reasonable grounds. 37 I come now to the main arguments advanced by the applicant. The applicant pointed to the list of offences in clause 3 of Schedule 1 to the 2013 Determination and highlighted, by way of example, offences involving violence punishable by imprisonment for a period of three years or more (cl 3(d)) and theft (cl 3(h)). As I understood the submission, it was that there was nothing about the nature of these offences which suggested that ordinary police methods of investigation were not likely to be effective in the relevant sense. That had to be found elsewhere and that could only be in the description of HRCTs. When one then considered the definition of HRCTs, what was notable (so the applicant submitted) was that the group was defined by reference to a reasonable suspicion of an authorised ACC officer that the entity may have the attributes identified in paragraphs (a), (b) and (c). The applicant submitted that even if it is assumed that the group whose activities are the subject of the investigation can be defined by reference to attributes which in themselves indicate that ordinary police methods of investigation are not likely to be effective and even if it is assumed that that is what has been done in the definition of HRCTs, nevertheless the use of the word "may" means that some entities may not, in fact, have the relevant attributes and so it cannot be said that ordinary police methods of investigation were not likely to be effective in the relevant sense with respect to such entities. I reject this submission. 38 I think that a Determination could define the group to be investigated by reference to attributes or characteristics which in themselves justify a conclusion that ordinary police methods of investigation are not likely to be effective in the relevant sense. In my opinion, this Determination does just that. It is not only paragraph (c) in the definition of HRCT's which is relevant in this respect, but also paragraphs (a) and (b). For example, paragraph (b) refers to a high level of ability to commit specified criminal activity. Another aspect of the definition which is important is that the authorised ACC officer must not only have a suspicion, but must also have reasonable grounds for that suspicion. In other words, there must be circumstances which would create in the mind of a reasonable person a suspicion that the entity may have the relevant attributes or characteristics (Queensland Bacon Proprietary Ltd v Rees (1966) 115 CLR 266 at 303 per Kitto J; George v Rockett and Another (1990) 170 CLR 104 at 115-116). 39 There are two obvious matters to be noted about the requirement that the Board of the ACC be satisfied that ordinary police methods of investigation are not likely to effective in the relevant sense. First, it is not necessary that the Board of the ACC be satisfied that ordinary police methods of investigation will not be effective. Secondly, the issue will not always be an easy one to answer and there are questions of degree involved. 40 Considering all of these matters together, I do not think that the 2013 Determination is invalid because the definition of HRCTs means that the Board of the ACC could not address and answer the ordinary police methods of investigation issue. 41 The applicant put a further argument in support of the submission that the 2013 Determination was invalid because the Board of the ACC could not answer the ordinary police methods of investigation issue. It concerned State offences having a federal aspect. In XCIV, Wigney J decided that the offences identified in clauses 3(d) and 3(h) of Schedule 1 to the 2013 Determination were Commonwealth offences or State offences having a federal aspect (at [131]). State offences having a federal aspect are also covered when they fall within the circumstances identified in clause 3(m) of Schedule 1. As I understood the applicant's argument, it was that with respect to some State offences having a federal aspect, it will not become apparent that it is within the investigation until the circumstances in which the offence was committed are ascertained and, in those circumstances, it is difficult to see how the ordinary police methods of investigation issue could be addressed at the time of the 2013 Determination. I would make the observation that if that is a difficulty it appears to be a difficulty within the Act, rather than the Determination. In any event, I do not think the point succeeds because the circumstances relate to HRCTs and the Board of the ACC is able to address the ordinary police methods of investigation issue in relation to them. 42 The other way the applicant put his argument about the ordinary police methods of investigation issue was that the decision of the Board of the ACC was legally unreasonable. In XCIV, Wigney J rejected an argument that the Board of the ACC had not determined the issue (at [91]-[98]) and he said that the Board of the ACC had stated in clause 6 of the 2013 Determination that it had determined the issue. The applicant submitted that, assuming it had done so, nevertheless its decision was legally unreasonable. This submission focused on the breadth of the 2013 Determination. For the reasons I have given, I think it was open to the Board of the ACC to conclude (as it did) that, with respect to the specified criminal activity identified in the 2013 Determination, ordinary police methods of investigation were not likely to be effective in the relevant sense.

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