114 Paragraph 6 of the examiner's record of reasons states as follows:
6) I was satisfied that this was an appropriate Summons for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, in the terms approved by me, because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation and that a failure to do so might be contrary to the public interest.
115 The summons contains a notation as follows:
And take notice that:
Pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, disclosure of information about this summons, or any official matter connected with it, is prohibited except to the Federal Court of Australia and the Attorneys-General of the Commonwealth and the States for the purposes of any application challenging the validity of the summons, in which case the applicant's name is to be suppressed and replaced by a letter and/or number pseudonym, and where section 29B of the Act does not prevent such disclosure.
116 Against this background SS submitted that the statement of facts and circumstances disclosed that the examiner had erred. SS observed that, in common with the examiner's reasons, the statement of facts and circumstances contains two references to the pseudonym "SS" even though the purported date of the document is 13 January 2009. In accordance with my conclusions at [98] - [109] above about the examiner's reasons, the subsequent amendment of the statement of facts and circumstances is probably a result of the order made under s 50 of the Federal Court of Australia Act (which the notation in the summons anticipated if the validity of the summons were challenged). Nevertheless, such speculation is unnecessary because there is no basis in the legislation for concluding that a subsequent amendment of the statement of facts and circumstances to replace the name of the recipient with the pseudonym "SS" would have the effect of invalidating the summons.
117 SS submitted that there was an inconsistency between the statement of facts and circumstances (which said that a notation may, not must, be included in reliance on s 29A(2(B)) and the examiner's reasons (which said that if such a notation were not included it "would" reasonably be expected to prejudice the effectiveness of the operation in apparent reliance on s 29A(2)(a)). According to SS this demonstrated that the examiner failed to appreciate the obligations imposed by s 29A of the ACC Act. The examiner, in his reasons, said he had regard to the statement of facts and circumstances and his conclusion that a summons should be issued was "based upon" that consideration. Yet the former said a notation may but need not be included whereas the latter asserted, in effect, that the notation had to be included.
118 There is a short answer to these submissions. Section 29A(1) imposes an obligation on the examiner. It is the examiner who must turn his or her mind to the questions posed by s 29A(2). The examiner may or may not accept the answer to those questions given in the statement of facts and circumstances (which is a document addressed to, rather than created by, the examiner). In this case, the fact that the examiner may be inferred to have reached a different view from that of the author of the statement of facts and circumstances tends to confirm, rather than undermine, the conclusion that the examiner discharged his statutory function under s 29A. Again, SS's submissions did not explain in any meaningful way why an inconsistency between a document which has the apparent function of a report for the examiner and the examiner's own record of reasons would affect the validity of the summons issued by the examiner. The ACC Act does not require the creation of a statement of facts and circumstances. It is presumably created to assist an examiner in the discharge of his or her functions. An examiner is not bound by a statement of facts and circumstances. Indeed, that would be contrary to the statutory scheme. Accordingly, inconsistency between a statement of facts and circumstances and an examiner's reasons, without more, does not establish any contravention of the ACC Act.
119 SS submitted that there was no evidence that the examiner had turned his mind to or approved the terms of the notation that appears in the summons. In support of this submission SS observed that in AB Pty Ltd (at [53]) an examiner's statement of reasons contained a statement that "I was satisfied that it was also appropriate that the notation pursuant to subsection 29A(1) of the Australian Crimes Commission Act 2002 be in the terms approved by me". However, there was no such statement, said SS, in the examiner's reasons in the present case, which SS described as "significant".
120 In fact, the examiner's reasons in the present case include a reference to the examiner's approval of the terms of the notation; the words are included in the third line of paragraph 6 ("in the terms approved by me"). In any event, I do not consider the alleged difference (even if it existed) bears the weight that SS sought to place upon it. The evidence in the present case should be assessed on its own terms. Reliance on the differences between documents in the present case and other cases is a flimsy basis upon which to found inferences of the nature SS advocated. The summons says it is issued by, and is signed by, the examiner. In these circumstances the submission that there is no evidence that the examiner turned his mind to, or approved the terms of the notation that appears in the summons, is unsustainable.
121 SS acknowledged that the summons notes the obligation in s 29A(3) of the ACC Act (namely, that if a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by s 29B on the person who was served with, or otherwise given, the summons or notice). SS acknowledged further that the summons is accompanied by a written statement which sets out or accurately paraphrases the rights and obligations in ss 29B(1), (2), (5), (6) and 7(b) of the ACC Act. SS said, however, that the statement is deficient because it does not set out or paraphrase s 29B(3) or refer at all to s 29B(4) of the ACC Act. Accordingly, SS claimed that the summons contravened s 29A(3) because it did not deal with the rights and obligations of a person "otherwise given" the summons within the meaning of that section.
122 The scheme of ss 29A and 29B of the ACC Act does not support SS's approach to the meaning of "or otherwise given" in s 29A(3). Section 29A(1) imposes an obligation on and vests power in an examiner to include a notation depending on the circumstances. Section 29A(2) identifies the circumstances in which an examiner must and may include the notation. Section 29A(3) requires the summons to be accompanied by a written statement setting out the rights and obligations "conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice". Section 29A(4) provides for an automatic cancellation of a notation after an operation or investigation has concluded in the circumstances specified. Section 29A(5) requires the CEO to serve a written notice of the fact of cancellation on "each person who was served with, or otherwise given, the summons or notice containing the notation". Section 29B(1) imposes an obligation of non-disclosure on a person "who is served with, or otherwise given, a summons or notice" containing a notation under s 29A. Section 29B(2) provides exceptions to the s 29B(1) obligation which a person subject to obligations under s 29B(1) may use. Section 29B(3) imposes obligations of non-disclosure on persons to whom disclosure is made by a person subject to obligations under s 29B(1) using one or more of the exceptions in s 29B(2). Section 29B(4) provides exceptions to the s 29B(3) obligation which a person subject to obligations under s 29B(3) may use.
123 Three matters are apparent from this scheme.
124 First, the scheme distinguishes between a person "served, or otherwise given" a summons or notice and a person to whom a person "served, or otherwise given" a summons or notice makes disclosure. The former is subject to ss 29B(1) and (2). The latter is subject to ss 29B(3) and/or (4). Consideration of the opening words of the provisions of ss 29B(1) to (4) supports this distinction (that is, the fact that s 29B(1) uses the words "served, or otherwise given" whereas ss 29B(3) and (4) refer to persons to whom disclosure has been made or information disclosed). This distinction indicates that the Act establishes two classes of persons for the purpose of these provisions, namely: - (i) persons who are served or otherwise given a summons or notice, and (ii) persons who are the recipient of disclosure by a person served or otherwise given a summons or notice, but who have not themselves been served or otherwise given a summons. This scheme is inconsistent with SS's case that the words "otherwise given" in s 29A(3) should be read as applying to a person who is the recipient of disclosure by a person served or otherwise given a summons or notice.
125 Second, treating a person to whom disclosure has been made about a summons or notice as a person "otherwise given" the summons or notice under s 29A(3) undermines the careful scheme of obligations imposed by s 29B. The reason for this is that the words "or otherwise given" must take the same meaning wherever they appear in the ACC Act. Hence, s 29B(1), on SS's construction, would apply to a person to whom disclosure is made (and who happens to be given a copy of the summons or notice as part of that disclosure) under s 29B(2). Yet such a person would also be subject to the obligations imposed by s 29B(3). Similarly, if that person to whom disclosure is made under s 29B(2) (and who happens to be given a copy of the summons or notice as part of that disclosure) themselves makes a disclosure under s 29B(4) (and happens to be given a copy of the summons or notice as part of that disclosure) the person who is the recipient of the disclosure under s 29B(4) would also become a person subject to the obligations under s 29B(3), yet also (on SS's case) s 29B(1) as well. This makes the statutory scheme nonsensical.
126 Third, and as the ACC pointed out, if SS's construction is correct then the CEO's obligation in s 29A(5) is unworkable. The CEO will know the persons served or otherwise given the summons by the ACC. The CEO cannot know the persons to whom a disclosure has been made in accordance with ss 29B(2) or (4). Such a disclosure is not a matter for the CEO. It is a matter for the person served or otherwise given the summons or notice by the ACC and the recipient of the disclosure. Yet SS's construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)).
127 These considerations indicate that the ACC's submission must be accepted. The words "person who was served with, or otherwise given, the summons or notice", wherever they appear in the ACC Act, mean a person served or otherwise given the summons or notice by the ACC. It does not extend to persons to whom a copy of the summons or notice may be given as part of a disclosure by a person served or otherwise given a summons or notice by the ACC. No other construction of the words is reasonably open. It follows that I also reject this argument on behalf of SS.
128 SS also claimed that the summons was defective on its face because it did not require SS to attend to give evidence as a witness to federally relevant criminal activity. Rather, the summons refers only to being required to attend to "give evidence of federally relevant criminal activity". According to SS the summons thereby contravened the ACC Act which confines the power to summons a person to give evidence at an examination to witnesses (referring to ss 25A(6), (7), 26, 27, 28, 30, 31, and 33). SS submitted that a summons which did not require a person to attend to give evidence in his or her capacity as a witness is thereby invalid.
129 This submission is without merit. The summons is issued pursuant to s 28(1). The section states that an examiner may summon a person to appear before an examiner at an examination "to give evidence and to produce such documents or other things (if any) as are referred to in the summons". The section makes no reference to the word "witness". It certainly does not require a summons, on its face, to use the word "witness". In any event, the terms of the section and summons are clear. The person is to attend "to give evidence". Finally, SS (again) has not explained why any such contravention (if it had occurred, which it has not) would result in invalidity of the summons having regard to the principles established in Project Blue Sky at [91]-[93].
130 SS's amended statement of claim included a pleading to the effect that the summons was invalid because it failed to have attached to it a valid copy of the ATS determination as required by s 28(2) of the ACC Act. It is common ground that a copy of the ATS determination accompanied the summons. I understand this pleading to depend upon the allegation of invalidity of the ATS determination and ATS determination amendment 2008. As I rejected those contentions above this ground does not require further comment.