P v Australian Crime Commission

REASONS FOR JUDGMENT 1 This is yet another application testing the limits of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The hearing has been expedited. The applicant, to whom I will refer as "P", has been summoned under s 28(1) of the Act by an examiner to give evidence, to quote the summons, "in relation to your knowledge of and involvement in the illegal activities of [AB], [CD] and other members and associates of the [EF Club]". 2 The summons was issued for the purposes of a special Australian Crime Commission ("ACC") investigation which was authorised and determined by the Board of the ACC: see s 7C(1)(c) and (d) of the ACC Act; on 15 May 2003 for a period which was extended by a further authorisation and determination of 28 April 2004. The validity of the latter authorisation and determination is formally challenged in this proceeding, though it is conceded that the grounds of that challenge were rejected in my decision in X v Australian Crime Commission [2004] FCA 1475. For the reasons I gave in X,I uphold the validity of the amending authorisation and determination in this matter as well. 3 The burden of the present application is to have the summons that has been issued declared invalid. To appreciate the basis upon which invalidity is asserted it is necessary to refer both to the structure of the ACC Act and to the terms of the 2003 Authorisation and Determination.

The ACC Act 4 The ACC is a statutory corporation one of the functions of which is to investigate matters relating to "federally relevant criminal activities" when authorised so to do by the Board of the ACC. The Board, apart from authorising an investigation may determine that that investigation is a "special investigation": s 7C(1)(d). The significance of such a determination is that it triggers the ACC's access to a range of statutorily conferred coercive powers one of which is to conduct an examination under s 24A of the Act. The Act provides for the appointment of examiners: see Part II, Division 3, Subdivision B; who may conduct an examination for the purposes of a special investigation. 5 Section 28 of the Act, which is of central importance in this proceeding, provides insofar as presently relevant that: "(1) An examiner may summon a person to appear before the examiner at an examination to give evidence … (1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. (2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board … or that the investigation into matters relating to federally relevant criminal activity is a special investigation. (3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC … investigation to which the examination relates, it would prejudice the effectiveness of the special ACC … investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person, but nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC … investigation. … (7) The powers conferred by this section are not exercisable except for the purposes of a special ACC … investigation." 6 No particular form is specified in or under the Act with which a summons is required to comply. 7 When the Board of the ACC determines that an investigation is a special investigation, its determination must, as required by s 7C(4): "(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and (b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and (c) set out the purpose of the operation or investigation."