P v Australian Crime Commission [2005] FCA 55 | Case summary

The Alleged Invalidity of the Summons 11 I should note at the outset that it has not been suggested (a) that the examiner was not, or could not properly have been, satisfied that it was reasonable in all the circumstances to issue this summons: cf s 28(1A) of the ACC Act; (b) that the summons was issued otherwise than for the purposes of the special investigation: cf s 28(7) of the Act; or (c) that the summons was not accompanied by a copy of the Board's Determination: s 28(2); or did not set out, so far as reasonably practicable, the general nature of the matters in relation to which the examiner intended to question P: cf s 28(3). 12 In these circumstances it might well be said - properly in my view - that the application should be dismissed as (i) the power to issue the summons was an administrative power; (ii) all of the express jurisdictional or formal requirements have been complied with and (iii) the summons is to be "presumed valid until the … decision [to issue it] is set aside in appropriate proceedings": Ousley v R (1997) 192 CLR 69 at 130; X v Australian Crime Commission, at [22]. 13 Despite the above, it has been contended that the summons is invalid, not because the examiner was without power to issue a summons to P, but because it did not adequately disclose the jurisdictional basis for its issue. It is contended that the Determination authorised an investigation of a circumscribed character. That circumscription is to be found in cl 3 of Schedule 1 and it was the stipulation that "certain persons, in concert with one another or with other persons, may be engaged in 1 or more of the [specified] activities". While the summons to P indicated it was intended to question him in relation to "his knowledge of and involvement in the illegal activities" of named and unnamed members and associates of a club, because of his alleged participation in those illegal activities and because of the circumscribed nature of the investigation, it failed to identify whether he was a "certain person" or an "other person". In so doing, it is said, it failed adequately to state its jurisdictional basis and it is to be inferred from the statute that such was required. The Act abrogates a witness' privilege against self-incrimination: A v Boulton (2004) 207 ALR 342. Given that the summon relates to P's own involvement in illegal activities, and because of that abrogation, he is entitled, it is said, to know the jurisdictional basis on which he has been summonsed. The summons is sufficiently analogous to a search warrant as to make the case law on warrants appropriate sources of principle in this matter. As the above contention reflects, reliance is placed in this regard on R v Romeo (1982) 30 SASR 243 at 245; George v Rockett (1990) 170 CLR 104 at 110-111; Ousley v R (1997) 192 CLR 69 at 88-99; and Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361. I should also add that the principles of natural justice were invoked, albeit increasingly mutedly, to support the requirement that the jurisdictional basis of the summons be disclosed. 14 I mean no disrespect to counsel in setting out the applicant's contention in short form. The primary answer to it lies in the construction of the ACC Act itself and can be equally shortly stated. 15 The issuing of a summons under the ACC Act is an administrative action which, in appropriate proceedings, is subject to judicial review: Ousley v R, at 130-131. The only jurisdictional precondition prescribed in the Act for the issue of a summons is that the examiner is satisfied that it is reasonable in all the circumstances to do so: s 28(1A). Though the examiner is obliged to record in writing the reasons for the issue of a summons, the person summonsed is not given a right to be provided with those reasons: Barnes v Boulton [2004] FCA 1219 at [22]-[29]. As I earlier noted, it is not alleged in this proceeding that the examiner did not have the satisfaction required by s 28(1A). 16 While the Act does not prescribe a form for summonses it imposes two stipulations in respect of them. The first is that it must be accompanied by a copy of the Board's special investigation determination: s 28(2). This occurred in the instant case. The second is that, subject to a proviso relating to prejudicing the effectiveness of the investigation, the summons shall set out so far as is reasonably practicable "the general nature of the matters in relation to which the examiner intends to question the persons [summonsed]:" s 28(3). The present summons clearly satisfied this requirement. Together these requirements serve in a general way to inform a witness of the general nature of the investigation being undertaken and, though not exhaustively, of what that witness might expect by way of questioning. As such they serve in some degree natural justice purposes. While the former specifies the scope of the investigation for the purposes of which the summons has been issued, neither, in my view, is intended to serve the purpose of stating the actual jurisdictional basis of a summons as such. 17 Importantly, the s 28(3) requirement has a purpose far removed from what is implicit in the applicant's challenge to the summons. Its function is to inform a witness as to the general matters on which it was intended he or she be questioned. In the present case it clearly informed P of this. In so doing it fulfilled its statutory purpose. And it had no other. 18 The summons disclosed on its face the matter it was required to disclose and it had appended to it what was required to be appended. The Act has not gone on to require further disclosure on the face of the summons. I can see no reason for the implication that any other matter must be disclosed as a prerequisite to the validity of the summons: Ousley v R at 82-83; 110-111; 128. There is a clear policy manifest in the Act to ensure the effectiveness of special investigations and to use generalised descriptions (s 7C(4)(a)), non-disclosure (s 28(3)) and imposed secrecy obligations to that end. Given the functions of the ACC, it is unsurprising that this is the case. However, it is that policy which tells strongly against any such implication as the applicant propounds. 19 I do not underestimate the significance that the statutory abrogation of the privilege against self incrimination may have, potentially, in erecting procedural fairness requirements for the conduct of an examination of a person where the relevant Act itself is silent about such requirements. For the reasons I have given, the text and structure of the ACC Act leave no part for that abrogation to play in prescribing requirements under the Act. 20 I would dismiss the application. 21 I should also indicate, though, that I do not agree with the circumscribed construction the applicant has sought to place upon the "allegations clause" (cl 3) of Schedule 1 to the Determination. That clause must be construed in the context both of the Determination to which it is scheduled and of clause 2. It is clear that the concern of the Determination and of the Schedules is with the activities of "Established Criminal Networks", a term defined in the Determination as I have earlier noted. The "certain persons/other persons" description in clause 3 is, in my view, properly to be construed as a reference to such networks. Its reference to "certain persons" in this context is not a limiting stipulation of particular named persons who have been the subject of allegations. Rather it is a statement of allegation that persons constituting an established criminal network have together, or in concert with another or other persons, been engaged in, etc., in one or more of the criminal activities tabulated in the clause. So seen it delimits the types of person who are subject to investigation, i.e. persons in established criminal networks. It does not name any of them (though the names of some might well be known to the ACC), nor does it need to name them: National Crime Authority v A1 (1997) 75 FCR 274 at 289-290. Rather, the purpose of the investigation as revealed in the Determination is "to identify and apprehend persons" who have been or are involved in the federally relevant activities specified in clause 3. 22 I will order that the application be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn .

P v Australian Crime Commission

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