The Validity of the Summons
29 The applicant challenges the validity of the summons on the basis that it does not comply with s 28(3) of the ACC Act.
30 It may be accepted that the validity of the summons is dependent upon the fulfilment of the essential conditions governing its issue. Failure to do so invalidates the summons: Ousley v R (1997) 192 CLR 69 at 88-89. Section 28(3) specifies the condition which, the applicant contends, was not complied with in relation to the summons. It provides:
'(3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/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 operation/investigation.'
31 The summons contained only the following information which might satisfy s 28(3), namely that the applicant was required to give evidence in relation to his -
' … knowledge of and involvement in illegal activities since 1 January 1990 and (his) knowledge of and involvement in the illegal activities of any other person since 1 January 1990.'
32 The examiner by affidavit sworn on 4 July 2005 has deposed to the fact that, before issuing the summons, he considered the particular circumstances of the relevant special ACC investigation. He decided that the terms of the summons set out, so far as was reasonably practicable, the general nature of the matters in relation to which he intended to examine the applicant. He further decided that it would prejudice the effectiveness of the special ACC investigation for the summons to set out any further details of the matters about which he intended to question the applicant. That affidavit simply adopts the wording of s 28(3). It does not descend to provide any information about why the examiner formed those views. The examiner was not cross-examined.
33 In my judgment, the summons does not set out the general nature of the matters in relation to which the examiner intends to question the applicant. The only limiting expression is the time period. It is barely limiting. It covers a period of some 15 years up to the present time. The balance of the description in the summons is not, in any meaningful way, descriptive of the general nature of the matters the subject of the proposed examination. It covers 'illegal activities', but the examination power can only arise when there has been a determination of the Board that the ACC should investigate federally relevant criminal activities and that the investigation is a special one. The context of s 28(3) is the necessary existence of relevant criminal activity of a particular character. Moreover, s 28(2) requires the relevant determination of the Board to accompany the summons. The requirement in s 28(3), if it were simply to set out the general nature of the matters the subject of the proposed examination, would obviously require something more specific than could be discerned from the fact that there was power to issue the summons and from a reading of the accompanying determination. It does not do so.
34 However, that is not the obligation imposed by s 28(3). It is a conditional obligation. Firstly, the obligation arises to give the general nature of the matters upon which it is intended to question a proposed examinee unless the examiner is satisfied, in the particular circumstances, that to do so would prejudice the effectiveness of the special ACC investigation. Secondly, the obligation to provide such information extends only so far as it is reasonably practicable to do so. Counsel for the ACC also pointed out that the examiner is empowered to question an examinee in relation to any matter that relates to a special ACC investigation, even if the summons has not put the examinee on notice that the topic of such questions is not described in that part of the summons setting out the general nature of the matters about which it was proposed to ask questions.
35 Finn J in P v Australian Crime Commission [2005] FCA 55 at [16] explained that the two requirements of s 28(2) and s 28(3) -
' … 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.'
In that case, as his Honour pointed out at [11], it was not suggested that the summons did not set out, so far as reasonably practicable, the general nature of the matters in relation to which the examiner intended to examine the witness. He also found at [16] that the summons clearly satisfied the requirement of s 28(3). The contention, which his Honour rejected, was that the summons did not adequately disclose the jurisdictional basis for its issue.
36 There are obvious reasons why s 28(3) is expressed in the way it is. It is part of the process available to an examiner to pursue a special ACC investigation. The investigation does not involve determining issues between parties. It concerns the investigation of serious and organised crime. It is clearly the legislative intention that such an investigation should not be frustrated by compulsory disclosure to a witness of the topics or matters upon which questioning is intended, where such disclosure might affect the efficacy of the proposed examination. In National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 Mason, Wilson and Dawson JJ said at 323-324:
'There is considerable force in the Commission's claim that to comply with the directions of the Federal Court would frustrate the purpose of the hearing. It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment. Having regard to the express statutory injunction of s 38(1)(d) of the N.C.S.C. Act, it would clearly be a denial of natural justice if the Commission in the present hearing received evidence adverse to News Corporation without providing an opportunity to News Corporation to be heard. An effective examination of such persons would require that the substance of the adverse information received during the investigation be disclosed to them. Legal representation would be permitted to such witnesses with the opportunity for their further examination by counsel and for submissions to be made touching matters covered by the examination. There is no reason why the Commission should not welcome, time permitting, any request by News Corporation that further persons be called to give evidence. A hearing conducted along these lines, subject to what we have to say in a moment about the publication of the Commission's views, would in our opinion be fair in all the circumstances.'
See also the observations of Morling J in Harper v Costigan at 154.
37 Section 28(3) recognises the desirability of a witness being notified in advance of the matters upon which questions should be anticipated. But it does so in qualified terms. It prescribes the circumstances in which such notice should be given. There are obvious considerations of fairness to a proposed witness by being so notified. The examination itself may be more efficiently conducted if such notification is given. But s 28(3) prescribes when that notification is to be given, and the extent of the notification if it is to be given, having regard to the respective interests of the witness and of the effective conduct of the special ACC investigation of which the examination is a part.
38 Importantly, s 28(3) places the responsibility for deciding whether setting out the general nature of the matters in relation to which the examiner intends to question the witness would prejudice the effectiveness of the examination upon the examiner. It is the satisfaction of the examiner which is the criterion for whether notification should be given of the matters for questioning. The starting point of s 28(3) is that the summons should, so far as is reasonably practicable, set out the general nature of the matters in relation to which the examiner proposes to question the witness. It recognises that, in the public interest the effectiveness of the investigation would be prejudiced if such notice is given in particular circumstances. It then places the satisfaction of the examiner on that question as the meter by which is measured the existence of prejudice to the effectiveness of the special ACC investigation by the giving of such notice. Importantly, also s 28(1A) requires the examiner to be satisfied that the issue of a summons is reasonable in all the circumstances and it requires the examiner to record in writing the reasons for the issue of the summons (although those reasons are not available to the person summonsed: Barnes v Boulton [2004] FCA 1219).
39 In my judgment, the examiner has shown that he was satisfied that setting out in any detail beyond that specified the general nature of the matters in relation to which he proposed to question the applicant would prejudice the effectiveness of the special ACC investigation. That was a responsibility with which he was charged. He is not shown to have misunderstood it. Indeed, in the exercise of a judgment on that matter, there is good reason for the examiner to be the person making that decision. The examiner is part of the ACC and would have a significant awareness of the nature and progress of the special ACC investigation. He is the person who has been obliged to comply with s 28(1A).
40 No particular criticism of the examiner's affidavit was made by senior counsel for the applicant, other than that it should have been more detailed. What is apparent is that the examiner was first satisfied that the disclosure of the general nature of the matters the subject of his proposed questioning would prejudice the effectiveness of the special ACC investigation. He also suggests that he then decided that the very general information in the summons was all that was reasonably practicable to disclose. The latter step is the first one referred to in the affidavit. It is not clear to me that the limiting expression about the nature of the general matters to be set out, namely that is be set out 'so far as reasonably practicable', is itself also intended to permit the withholding of detail about the general nature of the matters about which questioning is planned in the particular circumstances. That expression may simply be to address and limit, in a practical sense, the material required in the summons. That matter was not specifically the subject of submissions on behalf of the applicant and I do not need to further address it.
41 The applicant submitted in the alternative that if the examiner was satisfied that setting out the general nature of the matters in relation to which he proposed to question the applicant would prejudice the special ACC investigation, it was misleading to state in the summons that the examiner wished to question him about 'illegal activities' when the examiner must have known that the questions were to be confined to certain areas of activity. The contention is that to express the summons in that way was not a proper exercise of the power conferred upon the examiner by s 28(3). It was argued that it was necessary for the summons expressly to state that notice of the general topics for examination are not provided because the examiner is satisfied that to do so would prejudice the effectiveness of the investigation.
42 Neither s 28(3) nor any other provision in Div 2 of Part II of the ACC Act requires the summons to be so expressed. By s 28(3), the summons need not set out the general nature of matters in relation to which the witness is to be questioned if the examiner reaches the requisite state of satisfaction regarding possible prejudice to the investigation. Once the examiner has reached that state of satisfaction, the summons need not set out the general nature of the matters in relation to which the person is to be examined. The form of the summons is not prescribed. In P v ACC Finn J said at [16]-[18]:
'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: s28(2). . . .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]:" 28(3). . . 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. (original emphasis)
Importantly, the s28(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 doing so it fulfilled its statutory purpose. And it had no other.
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 (s7C(4)(a)), non-disclosure (s28(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.'
43 The ACC Act does not require the summons to record on its face that the examiner has reached the view that to disclose the general matters the subject of questioning would prejudice the special ACC investigation. There is also no reason to imply such a prerequisite for the validity of the summons from the ACC Act itself. Section 28 addresses what the summons is required to contain. Natural justice also does not necessitate, nor is it better served by, such a disclosure on the face of the summons. The obligation to give natural justice under s 28(3) is confined. So much is evident from the text of s 28(3) itself. It provides that:
'nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.'
Nothing prevents the examiner from questioning the person summonsed about any matters not stated in the summons. The person is not entitled to be given notice of all of those topics about which he or she might be questioned. As Finn J pointed out in the passage referred to above, the requirements of both s 28(2) and s 28(3) 'together serve only in a general way to inform the person summonsed of the general nature of the investigation being undertaken and, though not exhaustively, of what that the person summonsed might expect by way of questioning.' In that context, a right to be expressly informed of the examiner's decision to withhold particulars and to have disclosed that he considers that such disclosure would prejudice the effectiveness of the investigation cannot be implied. Such a right could only possibly be implied.
44 In my judgment, for the reasons given, the applicant has not shown that the summons did not comply with the requirements of s 28(3) in the particular circumstances.