VII v Purcell [2025] FCA 202

VII v Purcell [2025] FCA 202 | Case summary | Zoe

[12]

Schedule 1 sets out a list of specific offences against various provisions of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code), the Foreign Acquisitions and Takeovers Act 1975 (Cth), the Autonomous Sanctions Act 2011 (Cth) and the Corporations Act 2001 (Cth), as well as related offences against other provisions of the Criminal Code, the Corporations Act, the Bankruptcy Act 1966 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Customs Act 1901 (Cth), and the Taxation Administration Act 1953 (Cth). The final item in Schedule 1 specifies an offence of the same or a similar kind to those in the preceding items that is an offence against a law of a State and that "has a federal aspect".
The offences specified in items (1) to (6) of Schedule 1 of the Determination are concerned with obtaining property or a financial advantage by deception, or other fraudulent conduct (Divs 134 and 135 of the Criminal Code); money laundering, including dealing with the proceeds or instruments of crime (Div 400 of the Criminal Code); financial information offences under Pt 10.8 of the Criminal Code, including dishonestly obtaining or dealing in personal financial information, which involve conduct causing a benefit or loss of at least $10,000; offences relating to sanctions under Pt 3 of the Autonomous Sanctions Act which involve conduct causing a benefit or loss of at least $10,000; and offences involving market misconduct and other prohibited conduct relating to financial products and financial services (Pt 7.10 of the Corporations Act).
The balance of Schedule 1 sets out "related items" which specify various classes of offences that must relate to any of the offences identified in items (1) to (6) or, in the case of a State offence covered by item (24), must be an offence of the same or a similar kind to the offences identified in items (1) to (23) and must have a "federal aspect".
Clause 6 and Schedule 2 of the Determination set out the classes of person to participate in the intelligence operation for the purposes of s 7C(1)(e) of the ACC Act.

[28]

At 11.30 am on 9 February 2024, the respondent signed a statement of reasons for the decision to issue the summons.
For the purposes of determining whether to issue the summons, the respondent had regard to the Determination, the SOFAC and legal certification dated 8 February 2024, and the draft summons and its proposed annexures. Based on those materials, the respondent was satisfied that it was reasonable in all the circumstances to issue the summons.
The copy of the statement of reasons that is in evidence is heavily redacted in parts to remove information that is subject to an unchallenged claim of public interest immunity. Nevertheless, it appears from the statement of reasons that the respondent was satisfied that there were reasonable grounds for suspecting that the applicant would be able to give evidence of matters relevant to the special ACC operation being undertaken pursuant to the Determination.
The respondent considered it reasonable to suspect that the applicant, along with associates who are reputed to be members of the 'Ndrangheta, has been and still was engaged in serious and organised crime including Specified Financial Offences. The respondent stated that he was satisfied "that the statutory thresholds for 'serious and organised crime' (being a sub-component of 'federally relevant crime') are met in the context of [redacted] proposed examination". The respondent referred to ACIC intelligence holdings in relation to the membership and activities of the 'Ndrangheta organised crime group in Australia, including its involvement in drug trafficking and money laundering. The respondent stated that, having regard to the information before him, it was reasonable to expect that the applicant was well placed to give evidence and provide intelligence regarding Specified Financial Offences amounting to federally relevant crime within the scope of the special ACC operation.
The respondent found that the examination under the summons would be a pre-charge and pre-confiscation application examination. The respondent was satisfied that the examinee was more likely to give evidence if compelled to do so pursuant to the Summons, and that the proposed examination was in the public interest in order to enable the ACIC to perform its important public functions as set out in the ACC Act, notwithstanding the inevitable infringement of the privacy, rights and privileges of the examinee and possibly other persons.
At the same time as he signed the statement of reasons, the respondent also signed a document entitled "Satisfaction that the summons set out the general nature of the matters in which the person is to be questions to the extent reasonably practicable" for the purposes of s 28(3) of the ACC Act. In this document, the respondent recorded his satisfaction to that effect, based upon his consideration of the materials set out above, and having regard to the particular circumstances of the special ACC operation to which the examination related; the general scope of the matters it was proposed to question the examinee about; the "inherently inquisitorial, exploratory and organic nature of examinations"; and relevant case law, including XCIV v Australian Crime Commission [2015] FCA 586; (2015) 234 FCR 274 at [77]-[87] (Wigney J) and XXVII v Commonwealth [2017] FCA 320; 265 A Crim R 519 at [72]-[75] (Charlesworth J).
Finally, the respondent contemporaneously signed a document entitled "Reasons for inclusion of a notation in the summons prohibiting disclosure" for the purposes of s 29A of the ACC Act. In this document, the respondent recorded his satisfaction that failure to include the notation would reasonably be expected to prejudice the safety or reputation of a person and the effectiveness of an operation, having regard to the covert nature of the special ACC operation, the relationship between the examinee and persons whose identity was redacted, and the possibility of collusion or the destruction or fabrication of evidence.

[33]

A "relevant crime" is relevantly defined as a "serious and organised crime" that may have been, may be being, or may in future be, committed, and that is an offence against a law of the Commonwealth, of a State or of a Territory. The term "serious and organised crime" is defined in s 4(1). That definition contains a number of components that relate both to the seriousness of the offence and the level of organisation involved in its commission. A "serious and organised crime" is an offence that involves two or more offenders and substantial planning and organisation, that involves (or is of a kind that ordinarily involves) the use of sophisticated methods and techniques, that is committed (or is of a kind that is ordinarily committed) in conjunction with other offences of a like kind, and that is either a serious offence within the meaning of the Proceeds of Crime Act 2002 (Cth) or various other specified or prescribed offences punishable by imprisonment for a period of three years or more. The specified offences include offences involving any of a list of matters, including money laundering and illegal drug dealings.
Section 4A deals with when a State offence has a "federal aspect". In broad terms, this requires that the provision creating the State offence would have been a valid law of the Commonwealth if it were assumed that the law had been enacted by the Commonwealth Parliament instead of by the State Parliament: s 4A(2)(a). In certain circumstances, a State offence can have a "federal aspect" if a provision creating an offence that penalises the specific acts or omissions involved in committing the State offence could be validly enacted by the Commonwealth Parliament, including by reference to various matters that are intended to provide a connection with a subject matter within Commonwealth legislative power: s 4A(2)(c), (3), (4), (5). The definition of "federal aspect" also extends to the investigation of ancillary offences (such as conspiracy to commit a primary offence, or aiding, abetting, counselling, procuring or being knowingly concerned in the primary offence), and to investigations relating to a State offence in circumstances where that investigation is incidental to an investigation or intelligence operation that is being undertaken by the ACIC in relation to a Commonwealth or Territory offence: s 4A(2)(b), (d), (e). Thus, the object of s 4A is to identify State offences that potentially fall within Commonwealth legislative power because of their elements or the circumstances in which they were committed, or the investigation of which is incidental to an investigation or intelligence operation undertaken by the ACC in relation to an offence against a law of the Commonwealth or a Territory: s 4A(1).
The functions of the Board relevantly include authorising an intelligence operation or an investigation relating to a federally relevant crime - the former by a determination made under s 7C(2) and the latter by a determination made under s 7C(3). As mentioned above, an intelligence operation that the Board has authorised to occur under s 7C(2) is a special ACC operation, and an investigation relating to a federally relevant crime that the Board has authorised to occur under s 7C(3) is a special ACC investigation. The Board cannot make a determination authorising a special ACC operation or a special ACC investigation unless at least nine Board members (including at least two eligible Commonwealth Board members) vote in favour of making the determination: s 7G(4).
The Board's power to make determinations under s 7C(2) or (3) is governed by the succeeding subsections of s 7C, which are central to the grounds of review relied on by the applicant in the present case:

[42]

(a) In order for a special ACC operation or a special ACC investigation to be undertaken, a determination made by the Board under s 7C(2) or (3) must be in force, authorising the operation or investigation to occur: s 7(4E), (4F). Such a determination is in force for a period of three years beginning immediately after the determination is made, unless earlier revoked: s 7C(4G).

(b) The exercise of the power to make a determination under s 7C(2) or (3) is subject to the condition that the Board must consider that it is in the public interest that the Board authorise the relevant operation or investigation to occur: s 7C(4A). Such a state of mind is to be formed "on the basis of the collective experience of the Board members voting at the meeting when a determination is made". This is expressed to be the "only condition" for the exercise of the power to make a determination under s 7C(2) or (3).

(c) The federally relevant crime to which a determination under s 7C(2) or (3) relates may be identified "at whatever level of generality the Board considers appropriate": s 7C(4). This may include by reference to categories of federally relevant crime or suspected offender, or specific allegations of federally relevant crimes or specific offenders, or any combination thereof. The determination is not required to specify any particular offence or offences; nor any particular conduct, transaction or persons to which the operation or investigation relates; nor any timeframe within which any federally relevant crime may have been, may be being or may in future be committed; nor any timeframe within which the operation or investigation must commence or be completed: s 7C(4CA).

(d) The determination must set out the purposes of the relevant operation or investigation, to the extent that the Board reasonably considers appropriate having regard to the level of generality at which it is authorising the operation or investigation to occur: s 7C(4C). However, any failure to comply with this requirement does not affect the validity of the determination: s 7C(4J).

[48]

(a) Ground 1: The applicant alleges that the Summons fails to comply with s 28(3) of the ACC Act, in that it fails to set out the general nature of the matters in relation to which the applicant is to be questioned, either at all or as far as is reasonably practicable, or in a manner that allows the applicant to understand the limits or boundaries of the proposed examination.

(b) Ground 2: The applicant alleges that the Summons is invalid because the Determination was not validly made under s 7C(2). This ground is dependent on the applicant's success on one or more of Grounds 5 to 10 in relation to the validity of the Determination.

(c) Ground 2a: The applicant seeks leave to amend the originating application to add a ground alleging that, by reason of the breadth of the Determination, the respondent could not reasonably have been satisfied that issuing the Summons was reasonable in all the circumstances for the purposes of s 28(1) of the ACC Act.

(d) Ground 3: The applicant alleges that, in forming the state of mind that it was reasonable in all the circumstances to issue the Summons, the respondent acted on an incorrect understanding of the law, namely that each of ss 24A, 25A and 28 of the ACC Act are valid. The applicant alleges that those provisions are wholly or partially invalid "by reason of the tenuous nature of the connection (in some of their operations) between each of those provisions and any head(s) of Commonwealth legislative power (including by virtue of the dependence on the definition of federally relevant crime in s 4(1) of the Act, the relational concepts employed in each of ss 24A, 25A and 28, the subjective states of minds of decision-makers, and each of these in combination)".

(e) Ground 4: The applicant alleges that the respondent misunderstood the type of summons that he was issuing, in that the Summons failed to state whether it related to a pre-charge examination or a post-charge examination, or a pre-confiscation application examination or a post-confiscation application examination.

[50]

(a) Ground 5: The applicant alleges that the Determination fails to state the date on which and the time at which it was made by the Board, contrary to s 7C(2), (4E) and (4G) of the ACC Act. In circumstances where a determination under s 7C is in force during the period of three years "beginning immediately after the determination is made", and where a special ACC operation can be undertaken only while a determination is in force, the applicant submits that a determination is required to state the date and time of the Board's resolution to make the determination under s 7C(2).

(b) Ground 6: The applicant alleges that the Determination, in purporting to authorise an intelligence operation relating to "Specified Financial Offences", fails properly or adequately to identify the scope and limits of the special ACC operation or the federally relevant crime to which it relates, such that the Board could not reasonably have been satisfied for the purposes of s 7C(2) and (4A) that it was in the public interest to authorise the intelligence operation to occur.

(c) Ground 7: The applicant alleges that the Determination purports to authorise investigations relating to a federally relevant crime without the Board having specifically authorised that any such investigation should occur by a determination made under s 7C(3).

(d) Ground 8: The applicant alleges that the Determination fails to identify the federally relevant crime to which the intelligence operation relates "in such a way that examiners exercising executive power in reliance upon such a determination, persons subject to the exercise of that power, and/or a Court exercising judicial power, are able to ascertain the scope or limits of the authorisation and the federally relevant crime to which such determination relates", so as to be able to ascertain the limits of the examiner's power to conduct an examination.

(e) Ground 9: The applicant alleges that s 7C(2) of the ACC Act is constitutionally invalid in so far as it purports to confer on the Board a power that is capable of being exercised in such a way that it is impossible to ascertain the scope or limits of a special ACC operation "and, as such, is inconsistent with both the nature of executive power under the Constitution and with Ch III and s 75(v) of the Constitution", or "lacks the essential content necessary ... to constitute a 'law' as it does not identify or determine the content of a law as a rule of conduct or declaration as to power, right or duty".

(f) Ground 10: The applicant alleges that Board formed the collective state of mind referred to in s 7C(4A) on an incorrect understanding of the law, namely, that each of ss 24A, 25A and 28 of the ACC Act is wholly valid in its application to all classes of federally relevant crime. The applicant repeats the contention that ss 24A, 25A and 28 of the ACC Act are wholly or partially invalid (see Ground 3 above).

[58]

Section 7C(4G) imposes a temporal limit on the period for which a determination under s 7C(2) or (3) is in force, which in turn limits the period during which a special ACC investigation/operation can be undertaken under s 7C(4E) and (4F). Prior to the enactment of s 7C(4G), there was no requirement for the Board to specify an end date for a special investigation or operation, although the Board had power to impose or fix a time limit when making a determination: see e.g. P v ACC at [31] (Mansfield, Dowsett and Lander JJ); XXVII (FC) at [39]-[40] (Dowsett J), [85]-[86] (Wigney J).
The applicant submitted that the Determination "omits a key textual feature indispensable to its validity", because it "does not reveal in terms when it was, as a matter of fact, made". While the Determination was signed by the Chair of the Board on 12 December 2022, the applicant submits that "there is no textual or contextual basis to construe this as reflecting the date on which it was made".
The applicant submitted that the commencement of a determination under s 7C(2) or (3) limits the extent to which the ACIC can exercise its coercive powers for the purposes of a special ACC operation/investigation, ensuring that such powers extend no longer than is necessary to achieve the purposes of that operation or investigation and do not continue for an indeterminate period. Accordingly, the applicant submitted that the date on which a determination was made must be ascertainable on the face of the determination, otherwise it would not be possible for an examiner, an examinee or a court to establish whether the determination is in force and whether the coercive powers conferred by the ACC Act can be validly exercised for the purposes of the special ACC investigation/operation. The applicant submitted that the commencement date is "an anterior question of fact" and "a key integer which renders a determination lawful and engenders the proper use of the ACC's coercive powers".
In support of these submissions, the applicant argued that a determination made under s 7C(2) or (3) of the ACC Act must enable those affected by an exercise of the ACC's coercive powers to ascertain whether those powers are being exercised lawfully: see e.g. A1 v National Crime Authority (1996) 67 FCR 464 at 480, 484 (Merkel J); National Crime Authority v A1 (1997) 75 FCR 274 at 294-295 (von Doussa and Sundberg JJ) (NCA v A1). Section 28(2) of the ACC Act provides that a summons to appear at an examination must be accompanied by a copy of the determination. Among other things, the recipient of the summons should be able to ascertain on the face of the determination whether or not it remains in force.
The applicant noted that previous cases appear to be consistent with a practice of expressly stating in a determination made under s 7C of the ACC Act the time and date that the determination was made by the Board under the signature of the person who presided at the meeting: see CC Pty Ltd at [14]-[18] (Mansfield J); GG v ACC at [21] (Besanko J); AA v Board of the Australian Crime Commission [2010] FCA 553 at [154] (Foster J); Z v Australian Crime Commission [2010] FCA 803; (2010) 188 FCR 85 at [30], [126] (Reeves J) (Z v ACC).
The respondent submitted that the ACC Act does not expressly require that a determination made under s 7C must specify the date on which, or the time at which, it was made. Further, the respondent contended that it should be inferred from the fact that the Determination was signed and dated by the Chair of the Board on 12 December 2022 that the Determination was made by the Board on that date, and that such an inference is consistent with the statement in the SOFAC at [3] that the Board made the determination pursuant to s 7C(2) of the ACC Act on 12 December 2022.
I note that this ground of review is not directed at raising any controversy as to when the Determination was in fact made by the Board. Rather, the applicant's argument is that the Determination does not reveal on its face the time or date that it was made, in order to establish whether an examiner has power under s 28 of the ACC Act to summon a person to appear at an examination for the purposes of the special ACC operation/investigation that is purportedly authorised by the Determination. Accordingly, it is not to the point whether the making of the Determination by the Board at a particular time or date can be proved by evidence extrinsic to the instrument itself.
The power under s 28 of the ACC Act to summon a person to appear at an examination can only be exercised for the purposes of an extant special ACC operation/investigation, which requires there to be a determination under s 7C(2) or (3) that is in force. Unless earlier revoked by the Board, such a determination remains in force during the period of three years beginning immediately after the determination is made: s 7C(4G). It follows that the time at which a determination is made is relevant to the period during which a special ACC operation/investigation may be undertaken and the coercive powers conferred by s 28 of the ACC Act may be exercised for the purposes of that operation or investigation. Given that the period begins "immediately" after the determination is made, the commencement of the period arguably turns on the particular time at which the resolution to make the determination is passed by the Board. It is less clear whether that precise time of day is relevant to the end of the three-year period under s 7C(4G)(b)(i), or whether the period can be treated as running for three years after the day on which the determination was made: cf. s 36(1) of the Acts Interpretation Act 1901 (Cth). It is unnecessary to resolve that question for the purposes of the present case.
A determination made by the Board under s 7C(2) or (3) is not a legislative instrument: s 7C(4K). Nevertheless, such a determination must be "in writing". The purpose of that requirement is "to secure certainty as to the terms of the determination, so that the obligations arising from the determination can be implemented and the consequences arising from actions taken by reason of the determination can be properly validated": CC Pty Ltd at [32] (Mansfield J); see also Z v ACC at [45] (Reeves J).
For such purposes, a resolution passed by the Board that a determination be made is not necessarily to be equated with the determination itself. Section 7G(4) of the ACC Act contemplates that the requisite number of Board members must "vote in favour of making the determination". When such a resolution has been passed by the Board, whether at a Board meeting or outside a Board meeting in accordance with s 7J, the determination the subject of the resolution is made by the Board. In relation to meetings, the Board must ensure that minutes are kept: s 7H(2). Ordinarily, a document containing the form of determination will have been included in the relevant papers or materials presented to the Board in relation to the proposed resolution. Such a draft instrument will become the Board's determining "in writing" upon the passing of the resolution in compliance with s 7G(4) of the ACC Act: see CC Pty Ltd at [33]-[34] (Mansfield J); Z v ACC at [47] (Reeves J).
In practice, the document or instrument comprising the determination that is the subject of the Board's resolution will commonly be signed or endorsed as such by the Chair. Such a signature serves as an authentication by which persons affected by the making of the determination might be satisfied of its authenticity: CC Pty Ltd at [35] (Mansfield J). However, the date on which a determination is made is the date on which the resolution is passed by the Board, rather than the date on which the instrument is authenticated by the Chair's signature, if there were to be any difference between those two dates.
In the present case, the Determination is contained in an instrument that was signed and dated by the Chair of the Board. Clause 4.2 of the Determination states that the Board "makes" a determination authorising an intelligence operation to occur relating to the Specified Financial Offences that may have been, may be being, or may in future be committed. Clause 4.1 states that the Board "considers" that it is in the public interest that the Board authorise that intelligence operation to occur. Each of those clauses was expressed in the present tense. The only date borne by the instrument is 12 December 2022, which appears below the signature of the Chair of the Board. In my view, at least in circumstances where the resolution to make the Determination was passed at a meeting of the Board, it is open to infer from the signature of the Chair who presided at that meeting (see s 7E of the ACC Act) that the Determination was made by the Board on that date.
I do not consider that it is essential to the validity of a determination made under s 7C(2) or (3) that it contains an express statement to the effect that the Board made the instrument by a resolution passed at a particular time or on a particular date. The fact that such a practice may have been adopted in previous cases does not entail a conclusion that such a statement was necessary in order for the determination to be valid. Further, as discussed below, the inclusion of such a statement in or on an instrument is not necessarily to be regarded as forming part of the determination itself.
In CC Pty Ltd, Mansfield J held that a determination under s 7C(3) had been made by the Board in writing when it passed a resolution in relation to a draft instrument which, upon that resolution, "became the Board's determination in writing": at [33]. Significantly, the determination was made at that time notwithstanding that the instrument "did not record the date and time at which it was made and it had the distinct appearance of a draft": CC Pty Ltd at [36]. While the instrument was later signed and dated by the Chair of the Board, in accordance with an authorisation under the Board's resolution, it was implicit in the reasons for judgment of Mansfield J that this was not essential to the validity of the determination. Thus, his Honour found that the determination was (validly) made on 13 May 2003, when the Board met and resolved "in the terms of the instrument provided to the Board" to authorise the ACC to investigate the relevant matter, and not on 15 May 2003, when the Chair signed and inserted that date in the blank spaces provided in the draft instrument. Nor did anything turn on the fact that the date inserted by the Chair did not reflect the correct date on which the determination was made.
An appeal from the decision of Mansfield J was dismissed: CC Pty Ltd v Australian Crime Commission [2007] FCAFC 96; (2007) 159 FCR 282 (CC Pty Ltd (FC)). In setting out the terms of the draft instrument that was provided to the Board (at [8]), the Full Court (Branson, Lindgren and Besanko JJ) did not include the certificate that was to be signed by the Chair of the Board in relation to the making of the instrument by the Board and the time and date of the Board's resolution. The Court (at [11]) agreed with the respondents' submission that the Chair's endorsement of the instrument adopted by the Board was "in the nature of a certification or authentication of an Instrument previously made by the Board", so that the determination was either made in writing when the Board passed its resolution or was not made in writing at all. On that question, the Court upheld the conclusion reached by Mansfield J that the Board made a determination in writing when it passed the resolution adopting the draft instrument, which at that moment became the instrument by which the Board made the relevant determinations in writing: see at [17], [27].
In this context, "determine" was interpreted as meaning "decide" or "resolve", and that "[w]hat the statute requires is that there be writing that purports to be or to represent the outcome of a relevant voting process of the Board": CC Pty Ltd (FC) at [18]-[20]. The Full Court stated (at [21]):

[67]

Under subsequent amendments made to the ACC Act by the Australian Crime Commission Amendment (Special Operations and Special Investigations) Act 2019 (Cth) (2019 Amendment Act), former s 7C(6) was repealed and replaced with s 7C(4G), which deals in more detail with the period during which a determination under s 7C(2) or (3) is in force. In addition to providing for such a determination to take effect immediately after it is made, s 7C(4G) now also provides that the period for which a determination ends after three years if it is not earlier revoked. In my view, however, nothing in the 2019 amendments renders inapplicable the conclusion reached by the Full Court in CC Pty Ltd (FC) that the absence of a date within a determination is not fatal to its validity.
The decisions in CC Pty Ltd and CC Pty Ltd (FC) were referred to with apparent approval by Jagot J in SS v Australian Crime Commission [2009] FCA 580; (2009) 224 FCR 439 at [31] (SS v ACC). Although some observations made in SS v ACC might arguably suggest that the Board's determination was made "upon being signed and dated by the Chair of the Board" (see at [25], [30]), the decision is nevertheless consistent with the conclusion reached in CC Pty Ltd (FC) that the draft instrument became the Board's determination in writing on the passing of the vote to adopt the instrument as its determination. Thus, the determination that was signed and dated by the Chair, with a time and date identical to that referred to in the minutes of the relevant Board meeting, was treated as "cogent evidence of the Board's decision", rather than as essential to the valid exercise by the Board of the power conferred by s 7C of the ACC Act: see at [25], [33].
Similarly, in AA v Board of the Australian Crime Commission [2010] FCA 553, Foster J upheld the validity of a determination made under s 7C(1)(d) and (3) notwithstanding that the instrument misdescribed the date and time when the Board's resolution to make the determination was passed. The relevant resolution had been made outside of a Board meeting in accordance with s 7J of the ACC Act. The Court held that the resolution had not been passed until 1 May 2009, when the requisite number of votes were conveyed to and acknowledged by the Chair. Although the instrument that was signed by the Chair on 1 May 2009 stated that it was made by the Board by resolution at 4.13 pm on 30 April 2009, Foster J held that the determination was valid and the misdescription of the time at which the resolutions had been passed by the Board "does not matter": at [163].
As the respondent submitted, s 7C of the ACC Act does not expressly require a written determination under subss (2) or (3) to contain a statement of the date or time at which it was made by the Board. The applicant ultimately seeks to imply such a requirement from the proposition that it is relevant to ascertaining the limits of the special ACC operation/investigation and the examination powers conferred by Div 2 of Pt II of the ACC Act. However, there is no general principle under which a determination must be required to disclose on its face every fact, matter or thing that might be relevant to its validity or to the extent or duration of the powers to which it gives rise. Section 7C is not prescriptive or exhaustive as to the particular form or content of a determination made under s 7C(2) or (3): cf. Z v ACC at [46] (Reeves J), referring to P v ACC at [34] (Mansfield, Dowsett and Lander JJ).
The Board has some discretion under s 7C(4) as to the level of generality at which the federally relevant crime is identified and under s 7C(4C) as to the extent to which the determination sets out the purposes of the intelligence operation or investigation. The determination is not required to specify any particular offences, nor any particular conduct, transaction or person to which the investigation or operation relates: s 7C(4CA)(a) and (b). Further, the determination is not required to specify any timeframe within which any federally relevant crime may have been, may be being, or may in future be, committed, nor any timeframe within which the investigation or operation must commence or be completed: s 7C(4CA)(c). Neither the terms nor the context of s 7C of the ACC Act provides any support for an implication that a determination in writing made by the Board under s 7C(2) or (3) must state or disclose on its face the date on which or the time at which it was made as a condition of the valid exercise of power conferred by that section.
Accordingly, the Determination is not invalid on the ground that it does not expressly state the time or date that it was made by the Board. Ground 5 must be rejected.

[71]

The respondent submitted that a determination under s 7C(2) is not required to "identify and delineate the limitations of the intelligence operation", nor to identify all of the federally relevant crimes to which it relates, and that no such constraints can be implied into the power conferred by s 7C(2). Rather, the Board can make a determination if it considers that it is in the public interest to authorise an intelligence operation to occur, and may identify the purposes of the operation to the extent that it reasonably considers appropriate and the federally relevant crime to which the determination relates at whatever level of generality it considers appropriate: s 7C(4), (4A), (4C). The respondent submitted that these provisions of the ACC Act "are cast in very wide and expressly permissive terms".
A special ACC operation established by a determination made under s 7C(2) of the ACC Act will often be broad in scope. The definition of "intelligence operation" is framed by reference to the purposes of the operation, which must be "primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime". For such purposes, a "federally relevant crime" encompasses past, present or possible future Commonwealth or Territory offences that meet the definition of either "serious and organised crime" or "Indigenous violence or child abuse".
There is nothing in the language of s 7C of the ACC Act or the associated definitions that requires a determination made under s 7C(2) to specify the "limits" of the special ACC operation. The Board has some flexibility under s 7(4C) as to the manner in which and the extent to which the purposes of the intelligence operation are expressed, albeit subject to an objective constraint - "to the extent that the Board reasonably considers appropriate" (emphasis added). The Board also has discretion as to the level of generality at which the federally relevant crimes are identified in a determination, whether by reference to specific allegations or categories of federally relevant crimes or by reference to specific offenders or categories of suspected offenders: s 7C(4).
That is not to suggest that the Board's power to make a determination authorising an intelligence operation to occur is unlimited, or can be exercised to authorise an all-encompassing intelligence operation into all or any federally relevant crimes whenever committed or to be committed, seeking to replicate or implement the statutory power to its full extent. The applicant sought to describe such a possibility in oral submissions as having "one determination to rule them all". However, the Determination in the present case cannot properly be characterised as meeting such a description.
The Determination authorises an intelligence operation to occur relating to "Specified Financial Offences". This is reflected in the name of the instrument, which refers to "Serious Financial Crime". The concept of Specified Financial Offences is defined in cl 3.2 which, while it picks up most of the elements of the statutory definition of "serious and organised crime", is confined to the particular classes of offences that are listed in Schedule 1. While that list of offences is broad, it is by no means close to the full extent of the "relevant crimes" that may potentially be made the subject of a special ACC operation/investigation.
As discussed above, the principal offences covered by items (1) to (6) of Schedule 1 of the Determination are concerned with specific matters in relation to money laundering, fraudulent conduct, financial information offences (above a monetary threshold), offences in relation to autonomous sanctions (above a monetary threshold), and prohibited conduct in relation to financial products and financial services. All of the other classes of offences covered by the Schedule 1 must be related to an offence specified in items (1) to (6). Offences against State laws may be covered by item (24), but only if they are of the same or a similar kind and if they have a "federal aspect" within the meaning of s 4A of the ACC Act.
The list of offences set out in Schedule 1 of the Determination falls well short of exhausting the categories of offence covered by paragraph (d) of the definition of "serious and organised crime". In respect of some of those categories, Schedule 1 does not specify any offences. Where offences are specified, the class of offences is often narrower than the full scope of the relevant category. The principal offences in items (1) to (6) may fall within sub-paragraphs (ii), (iv) and (viii) (fraud, money laundering, and obtaining financial benefit by vice engaged in by others), and the related offences may fall within other categories such as tax evasion, illegal drug dealings, violence, or bribery or corruption of Commonwealth, State or Territory officers. Nevertheless, the offences listed in Schedule 1 comprise specific classes of offence that involve or relate to serious financial crimes, as a limited sub-set of "serious and organised crime" within the meaning of the ACC Act.
The Board was not required to give reasons for making the Determination: see SS v ACC at [68] (Jagot J); Z v ACC at [100] (Reeves J). Clause 4.1 of the Determination states that the Board considered that it was in the public interest that the Board authorise the intelligence operation relating to the Specified Financial Offences that may have been, may be being, or may in the future be committed. Clause 5 of the Determination sets out the purposes of the intelligence operation to the extent that the Board considered appropriate. Clause 3.2 and Schedule 1 defined the federally relevant crimes to which the intelligence operation relates.
It may be noted that previous attempts to challenge a determination made under s 7C of the ACC Act based on the width of the operation or investigation authorised by the determination have not met with any success.
For example, in XCIV, the relevant determination under s 7C(3) of the ACC Act authorised an investigation of "specified criminal activity" which was defined as federally relevant criminal activity described in a schedule to the determination. The schedule set out the circumstances constituting the federally relevant criminal activity, largely by reference to the involvement of "highest risk criminal targets" or "HRCTs", and the general nature of the allegations constituting such activity that may have been, may be being, or may in future be committed by HRCTs. It may be noted that the way in which the determination was drafted in XCIV reflected the terms of s 7C(4) as then in force, which required a determination to "describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity". That provision has since been amended and s 7C now governs the content of a determination in a materially different manner: see s 7C(4), (4C), (4CA). Nevertheless, in a manner analogous to the Determination in the present case, the allegations set out in the schedule to the determination considered in XCIV referred to a range of specified offences under the Criminal Code and other legislation (including serious drug offences, cross-border firearms trafficking, offences involving violence, tax evasion, money laundering, theft, identity crime, use of a telecommunication network to commit a serious offence, and offences relating to criminal associations and organisations), together with a long list of "connected offences".
One of the grounds on which XCIV challenged the determination was that its scope was "so broad that it could not be considered to be a proper exercise of power under s 7C", such that "it amounts to an inquiry into any possible criminal activity": XCIV at [38]. This argument was rejected by Wigney J: XCIV at [101]-[113]. In particular, Wigney J did not accept the general proposition advanced by the applicant in that case that s 7C of the ACC Act "only allows the Board to authorise a special investigation into specific and confined criminal activity", so that "the federally relevant criminal activity to be investigated must be defined in narrow or very specific terms in the Determination" (at [101]). In rejecting this contention, Wigney J relevantly stated (at [103]-[104]):

[78]

Those conclusions are equally applicable to the Determination in the present case, if not a fortiori in the light of the amendments that have since been made to s 7C of the ACC Act in relation to the content of determinations made under subss (2) and (3). The removal of the requirement in former s 7C(4)(a) to "describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity" cannot be regarded as having given rise to an obligation to describe the federally relevant crime with any greater level of specificity. On the contrary, s 7C(4) now makes clear that the Board has some latitude as to the level of generality at which the federally relevant crime to which the determination relates is identified.
A similar argument was also rejected by Perry J in XX v Australian Crime Commission (No 3) [2016] FCA 437; 335 ALR 180 (XX v ACC), which involved a challenge to the same determination that was considered in XCIV. It was again argued that the determination failed to comply with the degree of specificity about the investigation required by s 7C(4) of the ACC Act, and that the purposes of the investigation were "so broadly defined as to encompass most aspects of law enforcement" (at [47]). Justice Perry (at [50]-[51]) agreed with the reasons of Wigney J in XCIV in rejecting a construction of s 7C(4) that would require the federally relevant criminal activity to be defined in narrow or specific terms. Her Honour noted (at [56]) that "the type of organised criminal activity with which an investigation may be concerned can be extensive, exceedingly complex, diverse and sophisticated with national and international dimensions, and breaches potentially of a significant number of laws", and that "[s]uch complexity also tells against reading into s 7C a need for specificity in a determination". Further, Perry J (at [57]) considered that "the kind of specificity for which the applicant contends is likely to require assumptions to be made at the outset of an investigation which are unrealistic in the context of criminal activity of this kind and could impose potential obstacles to a comprehensive investigation into such activities, thereby undermining the objects of ACC Act".
Such observations remain relevant to s 7C in its current form, particularly in circumstances where there is no longer any legislative requirement that the Board must consider whether ordinary police methods of investigation into the matters, or methods of collecting the criminal information and intelligence that do not involve the use of powers in the ACC Act, have been effective at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation or investigation relates.
The decisions in XCIV and XX v ACC were followed and applied by Besanko J in LX v Commonwealth [2016] FCA 441; 338 ALR 667. The arguments advanced in that case are not particularly apposite, in so far as they were directed at the former requirement that the Board be satisfied that ordinary police methods of investigation were not likely to be effective in the relevant sense. Nevertheless, Besanko J concluded that the breadth of the federally relevant criminal activity covered by the determination, including its extension to State offences having a federal aspect, did not prevent the Board from reasonably exercising the power to make the determination.
A similar challenge to the breadth of a determination under s 7(3) of the ACC Act was rejected in XXVII at [85]-[87], in which Charlesworth J was not satisfied that the decisions in XCIV, LX or XX v ACC were plainly wrong. That proceeding was also concerned with the investigation into HRCTs that was the subject of the determination considered by Wigney J in XCIV, together with a subsequent determination that operated to extend that investigation. The Full Court dismissed an appeal from her Honour's decision, although on grounds that are not relevant to the present case concerning the amendment to the temporal duration of the investigation: see XXVII (FC).
In CXXXVIII v Commonwealth (2019) 266 FCR 339, the same determinations under s 7(3) were again challenged on a number of grounds, including that those determinations did not constitute a "particular investigation having an organising principle around conduct, circumstances, states of affairs, mental states or a combination of those things" in relation to federally relevant criminal activity: at [85] (emphasis in original). Those arguments were rejected at first instance by the primary judge, who followed the decisions in XCIV, XX v ACC and XXVII: see CXXXVIII at [87]. On appeal, the appellant sought to revisit the issue in the light of the High Court's decision in in Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 266 CLR 325. The relevant ground of appeal was rejected by Charlesworth J, with whom Logan and Bromwich JJ agreed. In summarising her conclusions, Charlesworth J relevantly held (at [94]):

[82]

As to the asserted requirement that an investigation have an organising principle, to my mind that should go without saying. However, to identify that requirement does little to inform the question of how wide or varied the subject matter of a single investigation may permissibly be.

In my view, the permissible scope of an investigation is not to be found in the meaning of the word "investigation". Rather, the permissible scope of an investigation must be discerned from the whole of the phrase "investigate matters relating to federally relevant criminal activity" as those are the words that the Legislature has used in s 7C(1)(c) to define the limits of the Board's authorisation function. The phrase must, of course, be construed in its statutory context (including in the context of the condition imposed by s 7C(3)). It is a defined phrase embedded with further terms that are themselves expressly and comprehensively defined.

The defined phrase "relevant criminal activity" indicates that the subject matter of an investigation need not concern or respond to a particular allegation that a relevant offence has been committed, is being committed or may be committed by a person or class of persons. The concept is wider than that. It includes any circumstances implying that (for present purposes) serious and organised crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory. Where circumstances imply that serious and organised crime is being committed, it may be that the Board will not, at the time of an authorisation or determination, have in its possession information identifying or tending to identify the persons responsible for engaging in or organising the criminal activity, the particular offences that might sanction the activity, the scale of the activity, the place of its commission or other particulars. The discovery of as yet unknown particular information of that kind may permissibly form a part of the investigatory purpose.

In the use preferred by the appellant, the word "particular" otherwise introduces a narrowing concept that is not to be found in the language of a statute in which so many words and concepts are expressly defined. Moreover, to say that an investigation must be a "particular" investigation before a determination can be made in respect of it is to introduce a requirement the outer boundaries of which are difficult to draw. In addition, the word blurs the concept of an investigation (properly construed) on the one hand and the concept of the particular "matters" that may be the subject of inquiry within an investigation on the other. It is apt to confuse the concept of a permissibly broad investigation with the narrowing lines of inquiry that may arise in the ordinary course of it. The question of how broad the subject matter may be is a critical one, but the resolution of the question is not to be found in the word "particular".

[83]

Accordingly, Charlesworth J (at [102]) considered that, subject to a qualification that is no longer directly relevant, "on the proper construction of the Act the Board may authorise an investigation the subject matter of which is described in terms as wide as the language of the statute permits". The qualification arose from the condition that was previously contained in s 7C(3) requiring the Board to consider the effectiveness of ordinary police methods of investigation into the matters in question. The powers conferred by s 7C(2) and (3) are no longer subject to any such condition.
On the facts of CXXXVIII, the validity of the Board's determination was upheld, notwithstanding the breadth of the federally relevant criminal activity that was described in the schedule to the determination. Referring to the "multitude of offences" listed in that schedule, Charlesworth J noted (at [117]) that "[i]t is not surprising that conduct engaged in in the course of those classes of activity may constitute more than one offence or, indeed, a series of interrelated offences", and that "[o]rganised activities engaged in by persons with the defined attributes of HRCTs may of their nature have a degree of factual and legal complexity and may involve the commission of multiple offences of different kinds". Further, her Honour considered (at [118]) that "[t]he circumstance that the investigation may potentially concern multiple persons in connection with multiple offences ... is a reflection of the nature of the organised criminal activity to be investigated".
The reasoning in CXXXVIII was directed to a special ACC investigation authorised by a determination made under s 7C(3). But the position can be no different in relation to a special ACC operation authorised under s 7C(2) which, while it may involve undertaking investigations, is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime. Such a function is equally capable of being performed in relation to a broad range of conduct involving federally relevant crime that may have been, may be being, or may in the future be, committed.
In the present case, as discussed above, the Determination authorises an intelligence operation relating to Specified Financial Offences, which must meet the elements of "serious and organised crime" and fall within the classes of offences listed in Schedule 1. The Board has power to authorise a special ACC investigation or a special ACC operation "the subject matter of which is described in terms as wide as the language of the statute permits", to use the words of Charlesworth J in CXXXVIII. In this regard, s 7C was amended in 2019 to remove some of the conditions to which the power to make determinations in relation to special operations or special investigations was previously subject: see 2019 Amendment Act. Under s 7C(4), a determination may identify the federally relevant crime at whatever level of generality the Board considers appropriate. This includes, as in the present case, categories of federally relevant crimes. While a determination can also refer to specific allegations of federally relevant crimes, specific offenders, or categories of suspected offender, there is no obligation on the Board to do so. Further, a determination is not required to specify any particular offences, nor any particular conduct, transaction or person to which the investigation or operation relates, nor any timeframes: s 7(4CA).
In my view, the applicant has not met his onus of establishing that it was not reasonably open to the Board, based on the collective experience its members voting at the meeting, to consider that it was in the public interest to authorise the intelligence operation covered by the Determination. Nor can it be said that the purposes of the special ACC operation authorised by the Determination are so broad as to preclude an examiner from deciding whether to conduct an examination for such purposes, or from forming a state of satisfaction that it is reasonable in all the circumstances to issue a summons requiring a person to appear at an examination to give evidence or to produce documents or things.
I note that the applicant sought leave to amend his application to include an additional ground of challenge to the validity of the Summons, on the basis that the examiner could not reasonably have been satisfied under s 28(1) of the ACC Act that is was reasonable in all the circumstances to issue the Summons, by reason of the breadth of the Determination. I will consider that proposed additional ground below.

[85]

The applicant sought to distinguish between a special ACC operation pursuant to a determination made under s 7C(2) and a special ACC investigation pursuant to a determination made under s 7C(3) of the ACC Act. Although an intelligence operation may involve undertaking investigations relating to federally relevant crime, the applicant submitted that it cannot become a "special ACC investigation" without an independent exercise of the power conferred by s 7C(3).
The applicant contends that the Board made a determination to authorise an intelligence operation to occur in relating to Specified Financial Offences, but did not purport to authorise an investigation into such offences for the purposes of s 7C(1)(d) and (3). The applicant argues that this renders invalid both the Determination (because it purports to authorise unspecified "investigations" without a determination having been made under s 7C(3)) and the Summons (because it purports to empower the examiner to conduct an examination in relation to evidence collected as a result of investigations which the Determination has not authorised).
It is not immediately clear how the distinction between special ACC operations and special ACC investigations has any bearing on the validity of the exercise by the Board of the power conferred by s 7C(2) of the ACC Act. The Determination in terms authorises an intelligence operation to occur. To the extent that this intelligence operation involves undertaking investigations relating to a federally relevant crime, those investigations will be authorised as part of the special ACC operation under the Determination. In so far as any investigations relating to federally relevant crimes are said to go beyond the scope of what is authorised by the intelligence operation, that will be relevant to the validity of those investigations rather than the validity of the Determination.
The ACC Act does not contain a definition of the term "investigation". In the context of the ACC Act and predecessor legislation, it has always been accepted that the concept is not to be equated with police investigations in relation to particular offences that are known or reasonably believed to have been committed: see e.g. NCA v A1 at 284-285 (von Doussa and Sundberg JJ). Given the nature of organised criminal activity and the definition of "relevant crime", the subject matter of an investigation under the ACC Act can extend to "possible, undiscovered and incomplete offences": NCA v A1 at 285. The ordinary meaning of "investigate" includes to search or inquire into, or to examine a matter systematically or in detail: see e.g. XXVII (FC) at [18]-[20] (Dowsett J).
I accept that there is a distinction between undertaking an investigation relating to a federally relevant crime and "the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime". However, that distinction is somewhat moderated by the inclusion of both activities within the definition of "intelligence operation".
Accordingly, the applicant's argument was ultimately couched in terms that any investigations that are undertaken pursuant to a determination made under s 7C(2) must be incidental or ancillary to an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence. The thrust of the applicant's challenge to the Determination on this ground was that it purported to go beyond the permissible scope of an "intelligence operation", and to authorise investigations that are not incidental to any operation directed to the collection, correlation, analysis or dissemination of criminal information and intelligence.
Some of the previous authorities that have addressed the distinction between investigations and intelligence operations should be placed in their context, particularly in so far as the powers conferred by s 7C(2) and (3) of the ACC Act respectively were previously subject to different conditions depending on whether the determination was for a special operation or a special investigation. Nevertheless, the decided cases generally emphasise the potential overlap between the functions of undertaking an intelligence operation and an investigation.
In SS v ACC, the applicant argued that an investigation must mean something different from an intelligence operation, in that the former meant "a systematic examination in order to identify and build a case against the perpetrator of an activity" while the latter involved "a higher level of abstraction than an investigation": at [69]. The applicant contended that the determination in that case, which authorised the undertaking of an intelligence operation, exceeded the powers of the Board because it "confused the two activities which Parliament has deliberately kept separate": at [8](7). Justice Jagot rejected this challenge to the determination, stating (at [73]):

[96]

In practice, however, gathering intelligence and conducting investigations are not always distinct activities. For example, if the ACC were to conduct an intelligence operation into the production of amphetamines they may, in the course of that operation undercover particular instances where drug offences have been committed and in doing so may be conducting what constitutes an investigation.

This item will amend the definition of intelligence operation in subsection 4(1) so that it will also include the investigation of federally relevant criminal activity. This amendment will recognise that a specific investigation can be a part of an intelligence operation, and will allow the ACC to undertake actions which may otherwise be reserved for an "investigation". For example, a search warrant under section 3E of the Crimes Act can only be obtained for the investigation of an offence. A search warrant cannot be obtained under the Crimes Act for an intelligence operation or intelligence gathering in general. This amendment will mean that while conducting an intelligence operation, the ACC will be able to obtain a search warrant under the Crimes Act if it is conducting an investigation into an offence which is a necessary part of the operation.

A determination by the ACC Board that an intelligence operation is a special operation, and that an investigation is a special investigation, are separate processes. The changes to the definition of intelligence operation made by this item will not result in an "investigation" that forms part of a "special operation" acquiring "special investigation" status. For that particular investigation to be a "special investigation", the Board will still be required to make a specific determination under subsection 7C(3). There will be no scope, following the amendment, for an investigation to be deemed to be a "special investigation" simply because the investigation forms part of a "special operation". This is appropriate as the special powers under the ACC Act are only available if something has been authorised to be a special investigation or special operation.

[97]

The statements in the Explanatory Memorandum are consistent with a construction of s 7C(2) of the ACC Act that allows a special ACC operation to include some investigative activities, in the context of an intelligence operation that is primarily directed to gathering intelligence. The concept of an investigation for such purposes is not necessarily limited to gathering evidentiary material for use in a criminal trial or in confiscation proceedings, and can extend more broadly to inquiries for the purpose of understanding, disrupting or preventing the criminal activity to which the investigation relates: see CXXXVII at [96]-[97] (Charlesworth J).
The respondent also pointed to the Explanatory Memorandum to the Australian Crime Commission Establishment Bill 2002 (Cth), by which the ACC was established to replace the National Crime Authority and the current legislative regime governing the functions of the ACC was introduced. Among other things, that Explanatory Memorandum is consistent with the functions and powers of the ACC in relation to intelligence operations being regarded as an expansion of its functions and powers with respect to the investigation of federally relevant criminal activity (see at p 5 in relation to the definition of "ACC operation/investigation") and with a broad construction of those functions and powers (see at p 8 referring to the ACC's "general intelligence function" as being "designed to give the ACC the widest possible power to collect, correlate, analyse and disseminate criminal information and intelligence with prior approval by the Board").
On the facts of the present case, the short answer to this ground of review is that the Determination is properly regarded as being primarily directed to the purposes of the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime, and as authorising investigations for such purposes.
This is clear from the purposes of the intelligence operation set out in cl 5 of the Determination. The primary purpose set out in cl 5(a) is to collect, correlate and analyse criminal information and intelligence about Specified Financial Offences. While one of the identified ways of meeting that purpose is "undertaking investigations", this is accompanied by a range of other activities which are directed to obtaining and assessing information in relation to the persons and entities involved in the commission of Specified Financial Offences, the relationships between such persons, the methods and techniques used in the commission of Specified Financial Offences, the environment in which such offences are committed, and the vulnerabilities in Australia's financial system. Clause 5(b) is directed to the collection of evidence about past or ongoing Specified Financial Offences, including (but not limited to) undertaking investigations. Under cl 5(c), the purposes for which such information, intelligence and evidence may be disseminated includes assisting in the development of government policy and law reform, and facilitating enforcement, prevention, disruption and regulation activities. Finally, under cl 5(d), the intelligence operation will contribute to the national database of criminal information and intelligence relating to the commission of Specified Financial Offences.
In the light of those purposes, and the range of Specified Financial Offences covered by the Determination, there can be no doubt that any investigations that are authorised to be undertaken in the course of the special ACC operation form part of an intelligence operation within the meaning of the ACC Act. It cannot be said that the Determination is primarily investigative in nature, nor that it purports to authorise a special ACC investigation without a determination having been made under s 7C(3) of the ACC Act. Further, there is nothing to suggest that the Board were not fully cognizant of the nature and scope of the special ACC operation authorised by the Determination when considering whether it was in the public interest for such an intelligence operation to occur.
In some respects, the applicant's complaint under this ground merged into argument that the Summons was primarily for investigative purposes, and therefore beyond the scope of the special ACC operation authorised by the Determination. However, that is not a basis on which to challenge the validity of the Determination. In any event, the fact that a summons might be issued in order to investigate the commission of Specified Financial Offences by the applicant or other persons does not of itself take it outside the purposes of the Determination.
The applicant's challenge to the validity of the Summons is addressed below. For present purposes, it is sufficient to note that the general nature of the matters in relation to which the applicant is to be questioned are not limited to the investigation of any particular offences, and potentially encompass the collection of information and intelligence about subjects that fall within the purposes of the intelligence operation authorised by the Determination (including the persons involved in the commission of offences involving the proceeds of crime, including the importation and trafficking of border-controlled drugs, the relationships and associations between such persons, the methods and techniques used in the commission of such offences (e.g. the use of encrypted communication devices and messaging applications), and the environment in which such offences are committed). Nothing contained in the Summons supports any argument that the Determination amounts to an impermissible attempt to conduct a special ACC investigation without a determination having been made to authorise such an investigation under s 7C(3) of the ACC Act.
Accordingly, Ground 7 is dismissed.

[99]

The applicant alleged that s 7C(2) of the ACC Act is constitutionally invalid, on the basis that it purports to confer a power which is capable of being exercised in such a way that it is impossible to ascertain the scope or limits of the special ACC operation, thereby denying to a court the ability to determine whether or not a particular examination is within the limits of power. The applicant submitted that the Parliament cannot enact a law which denies to a Chapter III court "the ability to enforce the legislated limits of an officer's power": see Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [48] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
Further, the applicant submitted that, in order to be a valid exercise of legislative power, there must be a determination of "the content of a law as a rule of conduct or a declaration as to power, right or duty", and the law must delineate the "factual requirements to connect any given state of affairs with the constitutional head of power": see Plaintiff S157 at [102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
The contention underlying these submissions advanced by the applicant is that s 7C(2) creates a discretion that is so wide as to lack any discernible criteria by reference to which its limits may be ascertained and enforced. Such a provision is alleged by the applicant to be so devoid of "rule-like content" as not to amount to a law at all. Thus, the applicant submitted that s 7C(2) purports to authorise the Board to make a determination conferring power on an examiner to summons any person to appear at an examination and to ask that person any question for the purposes of an intelligence operation "in relation to a potentially extremely broad class of conduct identified by the Board", which need only be identified at the level of generality that the Board considers appropriate. The only condition for the exercise of that power, namely that the Board considers that it is in the "public interest" for an intelligence operation to occur, is said to be vague, broad and subjective, and as lacking any content that is capable of providing a sufficient connection with any particular subject matter of federal legislative power. Rather, the applicant argues that s 7C(2) purports to confer a power on the Board to define the subject matter to which the coercive powers of the ACIC are to apply.
The respondent, however, submitted that the power conferred by s 7C(2) is not unconfined or unfettered. In so far as the power is conditioned on the Board's satisfaction that it is in the public interest to authorise the intelligence operation to occur, which imports "a discretionary value judgment to be made by reference to undefined factual matters", it has been recognised that such a power conferred in such terms is neither arbitrary nor completely unlimited: see e.g. Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), referring to Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J); see also O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ). The power is limited by the subject matter and the scope and purpose of the statute: see Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 757-758 (Dixon J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 40 (Mason J). It may also be subject to an implied condition requiring it to be exercised reasonably.
Thus, the respondent submitted as follows:

[101]

The respondent sought to distinguish the observations by the plurality in Plaintiff S157 at [102] as having been made in response to an argument that was advanced by the Commonwealth to the effect that the Parliament could validly enact a law delegating to the Minister a "totally open-ended discretion as to what aliens can and what aliens cannot come to and stay in Australia", or prescribing "non-binding guidelines" regarding entry to and stay in Australia: see Plaintiff S157 at [101]; see also Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; (2013) 252 CLR 336 at [88]-[89] (Hayne J); Brown v Tasmania (2017) 261 CLR 328 at [468] (Gordon J). The plurality in Plaintiff S157 observed that provisions of that nature might not reveal a sufficient connection with a particular head of Commonwealth legislative power (such as the power to make laws with respect to aliens), in the absence of any rule of conduct or declaration as to a power, right or duty, and without any delineation of the facts that provide a connection with that constitutional head of power. Those observations may have been directed more to the question of the proper characterisation of the law, than a general statement regarding the minimum requirements as to the content of a "law".
Analogous issues were raised in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, in which one of the plaintiffs sought to challenge a provision in the Migration Act 1958 (Cth) conferring a personal and non-compellable power to permit an unlawful non-citizen to apply for a visa if the Minister thought that it was in the public interest to do so. One of the grounds on which the constitutional validity of this provision was challenged was that it operated to confer on the Minister "an unfettered and unreviewable statutory power" to decide whether or not to permit a person to make a valid visa application, resulting in "the conferral of a power free from any judicially enforceable limitation": see the argument summarised at pp 324-325. These submissions were rejected by the High Court: Plaintiff M61 at [56]-[59].
In particular, the Court held (at [56]) that the relevant provision was not "of so little content as not to constitute an exercise of legislative power or to be a 'law' as a rule of conduct or a declaration as to power, right or duty". Further, the conferral of a non-compellable power in such broad terms did not "clash" with s 75(v) of the Constitution and its conferral of jurisdiction to grant constitutional writs or injunctions against officers of the Commonwealth. The Court said (at [57]):

[103]

While the above observations in Plaintiff M61 were primarily concerned with the non-compellable nature of the power, in the sense that the repository of the power need not consider whether to exercise it, they provide no support for the argument advanced by the applicant in the present case that the breadth of the power conferred by s 7C(2), or the coercive powers that flow from an exercise of that power, is such that the provision does not amount to a "law" or is inconsistent with any requirement that limits on the powers exercised by officers of the Commonwealth must be enforceable by way of judicial review (see Plaintiff S157 at [104]; cf. Graham at [39]-[48]).
The power conferred on the Board by s 7C(2) is wide, but it is not unlimited and it remains amenable to judicial review in respect of both the procedural requirements and the substantive conditions on making a determination to authorise a special ACC operation. The requisite number of Board members must vote in favour of making the determination in accordance with s 7G(4). The determination must be in writing. It must identify the federally relevant crime and set out the purposes of the intelligence operation, albeit that the Board is afforded some latitude as to the level of generality with which the determination does so. The Board must consider that it is in the public interest to authorise the intelligence operation to occur.
The concept of the public interest is undoubtedly broad, particularly in circumstances where it is based on the collective experience of Board members comprising senior Commonwealth officers from various law enforcement, security, taxation and regulatory agencies together with State and Territory police chiefs. Nevertheless, the public interest or the national interest are accepted criteria by which a statutory power may be exercised, at least where the relevant power operates on rights and liabilities that otherwise have a sufficient connection to a head of Commonwealth legislative power. Such criteria have not been treated as rendering a statutory power unreviewable.
In so far as the applicant contended that s 7C(2) purports to empower the Board to authorise a special ACC operation that is so broad or undefined that it becomes impossible for a court to determine its scope or limits, it must be kept in mind that an intelligence operation authorised by a determination under s 7C(2) must meet the definition contained in s 4, including that it is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime. The same may be said in relation to a determination made under s 7C(3) to authorise an investigation relating to a federally relevant crime. Thus, the outer limits of any special ACC operation/investigation are confined by reference to federally relevant crimes within the meaning of the ACC Act, whether that be categories or specific allegations of federally relevant crimes or categories of suspected offender or specific offender: see s 7C(4). Nevertheless, the Parliament has clearly indicated its intention that a special ACC operation/investigation does not need to be limited to particular offences or particular conduct, transactions or persons: s 7C(4CA).
The making of a determination under s 7C(2) or (3) enlivens coercive powers in relation to examinations under Div 2 of Pt II of the ACC Act. However, an examiner can only exercise those powers for the purposes of the special ACC operation/investigation: ss 24A(1), 28(7). In this regard, the purposes of the special ACC operation/investigation are those set out in the determination made by the Board under s 7C(2). At an examination, a witness may be examined or cross-examined on any matter that the examiner considers relevant to the special ACC operation/investigation: s 25A(6). However, contrary to the applicant's submissions, this does not confer on the examiner an unconfined discretion to allow the witness to be questioned on any subject, regardless of its relevance to the matters within the scope of the special ACC operation/investigation. Section 25A(6) contemplates that a witness may be examined or cross-examined by a counsel assisting the examiner, by a person who is authorised to appear at the examination, or by a legal practitioner representing the witness at the examination. The role of the examiner is to constrain such questioning to matters that are relevant to the special ACC operation/investigation. While any rulings on relevance are entrusted to the subjective opinion of the examiner, they must be consistent with the scope and purpose of the ACC Act and in accordance with the principles of legal reasonableness.
In his challenge to the constitutional validity of s 7C(2) of the ACC Act, the applicant placed some reliance on the amendments that were made by the 2019 Amendment Act. The applicant argued that those amendments had removed several statutory "safeguards" which previously confined the scope of a determination and the circumstances in which a determination may be made (see, in this regard, XXVII (FC) at [184]-[185] (Bromwich J)). The applicant submitted that "the practical effect of the amendments was to substantially broaden the powers of the Board, through the introduction of a considerably less onerous and ill-defined enlivening condition".
Although the 2019 Amendment Act was downplayed in the Minister's Second Reading Speech as containing "technical amendments ... to streamline the authorisation process" and as "not expand[ing] or otherwise alter[ing] the powers available to the ACIC in the course of undertaking a special operation or special investigation" (see Commonwealth Parliament, House of Representatives, Hansard, 28 November 2019, p 6345), some substantive amendments were made to the conditions governing the Board's power to make determinations to authorise intelligence operations or investigations relating to federally relevant crime.
In particular, the previous form of s 7C(2) had required the Board to consider, before making a determination, the effectiveness of alternative methods of collecting the criminal information and intelligence at understanding, disrupting or preventing the federally relevant criminal activity. Similarly, former s 7(3) had previously required the Board to consider whether ordinary police methods of investigation into the matters were likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity (as to the meaning and effect of an earlier version of that requirement, see X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at [146]-[147] (Hayne and Bell JJ), although the wording of the provision was subsequently amended in response to that decision). Under the 2019 Amendment Act, those conditions were removed from s 7C(2) and (3) respectively, and it was instead provided in s 7C(4A) that the only condition for the exercise of power under those subsections was that the Board considers that it is in the public interest to authorise the special ACC operation/investigation to occur.
The 2019 Amendment Act also replaced former s 7C(4), which previously required a determination to describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity and to set out the purpose of the operation or investigation, with differently expressed requirements in current s 7C(4C) under which the Board can reasonably determine the extent to which it is appropriate to set out the purpose of the operation or investigation, and there is no longer any express requirement to describe the general nature of the circumstances or allegations constituting the federally relevant crime to which a determination relates.
These amendments might possibly have been directed at issues raised in past or pending legal challenges in relation to intelligence operations or investigations conducted by the ACIC, although any such mischief was not directly mentioned in the extrinsic materials and is ultimately a matter of speculation. Nevertheless, the amendments did contain retrospective validation provisions, which may shed some light on their purpose: see 2019 Amendment Act, Sch 1, items 55 and 56. An appeal to the High Court from the decision in CXXXVIII was ultimately discontinued following the passage of the 2019 Amendment Act: see CXXXVIII v Commonwealth [2019] HCATrans 206; CXXXVIII v Commonwealth [2020] HCATrans 102.
The 2019 Amendment Act also reframed the powers conferred on the Board in relation to special operations or investigations. Before the amendments, the powers conferred by s 7C(2) and (3) were expressed as powers to determine that an intelligence operation or an investigation was a special operation or a special investigation, which would then attract or enliven coercive powers conferred by other provisions in the ACC Act. Under s 7C(2) and (3) in their current form, the Board has power to make a determination authorising an intelligence operation or an investigation relating to a federally relevant crime, which is then defined as a "special ACC operation" or "special ACC investigation" respectively. This difference in drafting may be more a matter of form rather than one of substance - a determination made under s 7C(2) or (3) in their current form still has the effect that coercive powers may be exercised for the purposes of the special ACC operation/investigation that is authorised by a determination.
Ultimately, however, the fact that the current provisions may be more broadly drafted than previously does not deprive those provisions of content nor does it confer on the Board an arbitrary or unreviewable discretionary power. In so far as any critique of the width of the discretion or the scope of the powers entrusted to the Board raises policy issues, those are properly matters for the Parliament and do not go to the constitutional validity of the provisions. It is open to the Parliament to consider that the conferral on the ACIC of broad powers is warranted to address serious and organised crime, which may involve conduct and networks extending across state and international borders and employ sophisticated technologies to evade detection, rendering its participants "highly resilient to traditional investigative and intelligence-gathering methodologies" (see the Second Reading Speech at p 6345). In so far as the conferral of coercive powers under the ACC Act has an undoubted impact on the rights of individuals, this is capable of being taken into account both in the construction of the relevant statutory provisions and in the proper exercise of the powers by the officers on whom they are conferred.
Accordingly, I do not accept the applicant's submission that s 7C(2) of the ACC Act is invalid on the basis that it confers an unbridled discretion that is not governed by any discernible criteria and is not susceptible to judicial review. Nothing in s 7C(2) derogates from the High Court's original jurisdiction under s 75(v) of the Constitution or this Court's jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to review the decisions and actions of the ACIC. A determination made under s 7C(2) provides the ACIC with authority to conduct a special ACC operation/investigation, and affects the rights and liabilities of persons who may be subjected to the exercise of powers conferred by the ACC Act for the purposes of that operation or investigation. As discussed further below, it does so by reference to federally relevant crimes, which provide a sufficient connection with a head or heads of Commonwealth legislative power. Section 7C(2) is therefore a valid law of the Commonwealth.
It follows that Ground 9 is rejected.

[105]

The applicant alleges that ss 24A, 25A and 28 of the ACC Act are constitutionally invalid on the basis that they do not reveal a sufficient connection with a head of Commonwealth legislative power, at least in some of their operations. The applicant submits that this leads to the invalidity of the Determination, because the Board members are said to have collectively considered that it was in the public interest to authorise the special ACC operation to which the Determination relates "on the basis that each of ss 24A, 25A and 28 of the [ACC Act] was wholly valid in its application to all classes of federally relevant crime (as defined)".
It is not immediately clear how it can be said that the Board made the Determination on the premise articulated in Ground 10 of the originating application. To the extent that the Board implicitly accepted the validity of the relevant provisions of Div 2 of Pt II of the ACC Act when making the Determination, it was necessary only that those provisions be valid in so far as they might be engaged for the purposes of the special ACC operation authorised by the Determination. It is therefore not clear that a question is raised on the facts of the present case as to the validity of ss 24A, 25A and 28 of the ACC Act in their application to all classes of federally relevant crime, or in their application to federally relevant crimes that are not covered by the Determination. Further, in so far as the Determination may be capable of being read down or partially disapplied to ensure that it remains within constitutional limits, it is arguable that such questions might be better addressed in the context of a particular examination or summons directed to a particular set of facts.
Nevertheless, the applicant contended that ss 24A, 25A and 28 of the ACC Act, in at least some of their operations, are not properly characterised as laws with respect to a head of Commonwealth legislative power. The principles governing the determination of that question are settled, and have been considered and applied in innumerable cases. For a general statement of the principles, it suffices to refer to the observations of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at [16] (citations omitted):

[121]

In other words, just as the Commonwealth Parliament can create criminal offences in the areas of its enumerated legislative powers, it can authorise Commonwealth officers to gather intelligence and to investigate possible offences against Commonwealth laws, as well as offences against State laws that would have a sufficient connection to a subject matter within Commonwealth legislative power if enacted as a law of the Commonwealth. The laws authorising the intelligence operation or investigation in relation to such offences will have a sufficient connection to the heads of legislative power that support, or that would support, the enactment of the offences, if not also the incidental power in s 51(xxxix) read with s 61 of the Constitution.
On the facts of the present case, the State offences covered by the Determination are only those "of the same or a similar kind" to the offences identified in items (1) to (23) of Schedule 1, where they have a "federal aspect" within the meaning of s 4A of the ACC Act.
The fact that a special ACC operation/investigation can encompass possible future crimes (that is, crimes that may in future be committed) does not deny the connection of s 7C(2) or (3) with the relevant head or heads of legislative power that support laws dealing with federally relevant crimes. In particular, it is of the nature of an intelligence operation that it may involve the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant crimes that might be committed in the future, as well as such crimes that may already have been committed or may be in the course of being committed.
As discussed above, the inclusion within the definition of "federally relevant crime" of State offences with a federal aspect has previously been upheld as constitutionally valid. The hypothetical examples raised by the applicant's submissions as to the reach of s 4A of the ACC Act to State offences that are ancillary offences or State offences affecting the interests of constitutional corporations do not appear to arise directly on the facts of the present case, whether from the Determination or the Summons. More importantly, those examples do not demonstrate the constitutional invalidity of s 4A, let alone ss 24A, 25A or 28 of the ACC Act, particularly in the light of s 15A of the Acts Interpretation Act 1901 (Cth) and general principles as to reading down and severance of legislative provisions to the extent of any invalidity. Further, such questions may be properly addressed in the context of the application of the provisions to concrete facts and circumstances. As Mansfield J noted at first instance in S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431 at [28]:

[123]

While a special ACC operation/investigation can cover gathering criminal information and intelligence or undertaking investigations "relating to" a federally relevant crime, there is no reason to construe that term as exceeding the limits of constitutional power. Phrases such as "relating to" are commonly employed in statutory drafting to indicate a relationship between two different matters, and the degree of connection required can vary depending on the context: see Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [25] (French CJ and Hayne J), [90] (Crennan and Bell JJ); Minister for Home Affairs v DLZ18 [2020] HCA 43; (2020) 270 CLR 372 at [43] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). In the present context, it is possible to adopt a construction of the term "relating to" that reflects the connection necessary to establish that the laws are "with respect to" a head or heads of Commonwealth legislative power capable of supporting the enactment of offences constituting a federally relevant crime, thereby ensuring that an intelligence operation or investigation remains within constitutional limits: compare Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355 at [70] (Kiefel CJ, Bell, Gageler and Keane JJ).
The power to examine or cross-examine a witness at an examination on any matter that the examiner considers relevant to the special ACC operation/investigation does not untether the provisions from the purposes of the intelligence operation or investigation, nor does it sever their connection to a head of Commonwealth legislative power. Nor does the examiner's power under s 28(3) of the ACC Act to question an examinee in relation to any matter that relates to a special ACC operation/examination, whether or not it falls within the description in the summons of the general nature of the matters in relation to which the person is to be questioned. In determining whether any particular line of questioning is relevant to or relates to an operation or investigation, the examiner must form his opinion reasonably and on a correct understanding of the law: see e.g. Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33] (Gageler and Keane JJ); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [130]-[137] (Gummow J). The examiner is not at large to question an examinee, or to permit his or her examination or cross-examination, in relation to matters that have no possible relationship to the special ACC operation/examination. Ultimately, the powers to conduct an examination and to summon a person to appear at an examination are limited by the purposes of a special ACC operation/investigation: s 24A(1), 28(7).
Accordingly, Ground 10 (together with Ground 3) must be dismissed.

[129]

Ground 1 of the originating application alleges that "the Summons does not draw together in a cogent or comprehensible way how the three areas of interest that the examination will deal with are said to relate to Specified Financial Offences, such offences being the focus of the Determination, making it impossible for any limit or boundary to be ascertained in respect of the proposed examination". The applicant contends that the three areas of interest are of "remarkable breadth" and "bear little or no relationship to the Determination or the scope of the special ACC operation".
The applicant submits that s 28(3) of the ACC Act is the mechanism by which an examinee is able to understand what he or she is to be examined about, including the limits or boundaries of the proposed examination and whether he or she is required to answer questions. Taken in conjunction with the breadth of the Determination, the applicant contends that the Summons does not enable him to understand the nature and subject matter of the examination, nor does it enable the scope or limits of the examiner's power to be ascertained. The applicant submits that s 28(3) of the ACC Act requires the matters to be identified at a greater level of specificity than that set out in the Summons, such as by setting out "known, alleged or suspected conduct (or classes of conduct) in a form that engages with the Determination and the Applicant's circumstances and in particular with the definition of 'Specified Financial Offences'", or the identities of persons by whom or in connection with whom conduct is known, alleged or suspected to have been committed involving the applicant, or the general circumstances of known, alleged or suspected conduct involving or amounting to offences referred to in the definition of "Specified Financial Offences". In so far as information regarding the applicant's connection with alleged or suspected offences was contained in the Application, the applicant argues that it must have been reasonably practicable to include that information in the Summons in setting out the general nature of the matters in relation to which the applicant is to be questioned.
The requirements in s 28(3) of the ACC Act have been described as serving "natural justice purposes", at least in some degree, in that they "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": P v Australian Crime Commission [2005] FCA 55 at [16] (Finn J). Nevertheless, the requirements are qualified in order to avoid the possible frustration of an investigation "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": S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431 at [36] (Mansfield J). Accordingly, the extent to which a witness is notified in advance of the matters on which questions should be anticipated is prescribed by s 28(3) "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": S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431 at [37] (Mansfield J).
The requirement under s 28(3) is therefore limited to the "general nature" of the matters in relation to which the person is to be questioned. This requirement is further qualified by reasonable practicability, and subject to an exception where the examiner is satisfied that setting out the general nature of the matters would prejudice the effectiveness of the special ACC operation/investigation.
In XCIV, Wigney J upheld the validity of a summons that relevantly described the matters about which the witness would be questioned as giving evidence of or about serious drug offences contrary to Pt 9.1 of the Criminal Code. While Wigney J accepted that this was a very general statement of the matters about which the applicant would be questioned, he held that there was no basis for concluding that s 28(3) required anything more: XCIV at [83]. In particular, Wigney J did not accept that a summons issued under s 28 of the ACC Act was analogous to a search warrant, which is required to define the scope of the search and seizure that is authorised by the warrant, noting that what is stated in a summons issued under s 28 does not confine the scope of the questioning at an examination: XCIV at [85].
As Charlesworth J noted in XXVII at [73], s 28(3) of the ACC Act does not require an examiner to give the most precise description of the subject matter of the examination as can be done without prejudicing the effectiveness of the special ACC operation/investigation. Rather, the requirement is to set out the general nature of the matters in relation to which the recipient of the summons is to be questioned, unless it would prejudice the effectiveness of the special ACC operation/investigation to do so. In other words, "[a] general description of the matters is the maximum that the ACC Act requires, not the minimum", and "it is not to the point that the Examiner could have given a more detailed and elaborate description": XXVII at [73] (Charlesworth J). There may also be a question whether compliance with the requirement in s 28(3) is essential to validity, in the light of the fact that the description set out in the summons does not limit the questions that may be asked in an examination.
As the applicant submitted, the decisions in XCIV and XXVII can be distinguished from the present case, in so far as the respondent did not here form a view that it would prejudice the effectiveness of the special ACC operation/investigation for the summons to set out the general nature of the matters in relation to which applicant is to be questioned. Accordingly, the exception in s 28(3) was not attracted. The sole question is whether the Summons sets out the general nature of the relevant matters so far as is reasonably practicable.
The Summons sets out in general terms the criminal conduct about which the applicant may be questioned, namely dealing with proceeds of crime, including the importation and trafficking of border-controlled drugs. In addition, the Summons identifies that the applicant may be questioned about the use of encrypted communication devices and messaging applications to facilitate such activities, and the involvement of persons and entities involved in such activities. The applicant complains that the Summons does not articulate the nature of his connection with such matters, and does not specify the persons or entities who are alleged or suspected to have engaged in activities falling within the definition of Specified Financial Crime and with whom the applicant is alleged or suspected to have connections. However, in order to set out the general nature of the relevant matters in relation to which the applicant is to be questioned, it is not necessary to specify the nature or basis of the applicant's connection to those matters nor to name or identify any particular persons who might be involved.
I do not consider that the matters set out in the Summons are disconnected from the Specified Financial Offences that are within the special ACC operation authorised by the Determination, or the purposes of that operation set out in cl 5 of the Determination. The offences listed in Schedule 1 of the Determination include dealing in proceeds or instruments of crime (Div 400 of the Criminal Code) and importing or trafficking controlled drugs (Divs 302 and 307 of the Criminal Code). Such offences were identified in the Application for the Summons, and are capable of satisfying the definition of "serious and organised crime" in s 4 of the ACC Act and the associated definition of "Specified Financial Offences" in cl 3.2 of the Determination, a copy of which accompanied the Summons in accordance with s 28(2) of the ACC Act. Further, the matters set out in paragraph 5 of the Summons are aligned with the purposes of the special ACC operation as identified in cl 5 of the Determination, including the methods and techniques used in the commission of Specified Financial Offences, the persons and entities involved in the commission of Specified Financial Offences, and the relationships between those persons and entities.
To support his contention that the Summons failed to set out the general nature of the matters in relation to which he is to be questioned, the applicant relied on information that had been included in the Application, in so far as it was not the subject of any public interest immunity claim, arguing that this demonstrated that it was reasonably practicable for such information to be set out in the Summons. This argument misstates the relevant question, which is not whether it was reasonably practicable to include the information, but whether it was necessary to include such information in order to set out the "general nature" of the matters in relation to which the applicant is to be questioned.
The Application descended into further detail as to the specific evidence that it is believed the applicant can provide that is relevant to the special ACC operation authorised by the Determination. The Application nevertheless distinguished (at [76]) between the specific evidence the applicant is likely to give, and the general nature of the matters in relation to which he will be questioned. It is apparent that the latter drew upon the former. The fact that the Application contained more specific or extensive information does not of itself establish that such information was essential to convey the general nature of the matters that are the subject of the examination in compliance with s 28(3) of the ACC Act.
In my view, the general nature of the offences referred to in paragraph [11] of the SOFAC is captured by the description of the matters set out in paragraph 5 of the Summons. The applicant's submissions placed particular emphasis on a statement contained in paragraph [65] of the SOFAC that the applicant "is to be questioned on his practices, specifically engaging other SOCs to conduct illicit activities on behalf of himself and the [redacted]". The applicant contended that this allegation is different in nature, and not just in detail, from the statement in the Summons that the applicant is to be questioned about the involvement of persons and entities in the relevant criminal activities. The applicant characterised the statement in paragraph [65] of the SOFAC as raising a "serious allegation" of agency, in that the applicant did not simply have knowledge of the involvement of other persons or entities but that he had himself engaged such persons or entities to conduct illicit activities on his behalf. The applicant submitted that there was a "disconnect" between such an allegation and the statement in the Summons of the general matters about which the applicant is to be questioned.
In my view, this submission is without merit. Any questions about the applicant's engagement of other persons to conduct illicit activities falls within the general nature of identifying persons and entities involved in dealing with proceeds of crime, including from the importation and trafficking of controlled drugs, and the nature and extent of their involvement. Paragraphs [61]-[67] of the Application (which were subject to redactions) contained details of the specific evidence that was sought from the applicant and its relevance to the special ACC operation, including his connection with the 'Ndrangheta and its reputed involvement in money laundering and remitting the proceeds of drug importations and domestic trafficking. In order to comply with s 28(3), the Summons was not required to set out specific allegations against the applicant, nor to include all of the information contained in the Application that was before the examiner for the purposes of deciding whether it was reasonable in all the circumstances to issue the Summons under s 28(1) of the ACC Act.
For these reasons, I find that the Summons complied with s 28(3) of the ACC Act, and reject Ground 1 of the originating application.

[132]

The applicant requires leave to amend the originating application to add proposed Ground 2a. The respondent opposes the grant of leave to amend, including on the ground that the proposed ground lacks any merit.
By this proposed ground of review, the applicant alleges that the respondent could not reasonably have been satisfied that issuing the Summons was reasonable in all the circumstances for the purposes of s 28(1) of the ACC Act, in circumstances where the Determination failed to identify the scope and limits of the special ACC operation or the federally relevant crime to which it relates.
The proposed new ground is closely related to Grounds 6 and 8, in so far as it is premised on a contention that the breadth of the Determination is such as to prevent an examiner from ascertaining the scope or limits of the special ACC operation. For the reasons set out above, I have rejected that underlying premise.
While there are substantial redactions in the respondent's statement of reasons for his decision to issue the Summons, it is clear that the respondent was satisfied that it was reasonable to suspect that the applicant was able to give evidence in relation to Specified Financial Offences amounting to federally relevant crime within the scope of the special ACC operation authorised by the Determination, so as to advance the purposes of that intelligence operation. This includes evidence about the involvement of the 'Ndrangheta in money laundering and drug trafficking.
The proposed ground faces the same "hurdles" that were identified by Wigney J in XCIV at [69] and by Charlesworth J in XXVII at [66]-[71]. There is nothing to cast any doubt on or otherwise to impugn the respondent's statement of satisfaction that it was reasonable in all the circumstances to issue the Summons.
I therefore refuse leave to amend the originating application on the basis that proposed Ground 2a has insufficient prospects of success. Even if leave to amend were to be granted, Ground 2a would be dismissed.

[134]

The respondent proceeded on the basis that the Summons was a pre-charge and pre-confiscation application examination: statement of reasons at [2](xxi); see also the SOFAC at [68]-[69].
Accordingly, it was not necessary for the respondent to form the state of satisfaction in s 28(1)(d) of the ACC Act, namely that issuing the summons was reasonably necessary for the purposes of the special ACC operation even though the recipient of the summons had been or was imminently to be charged, or a confiscation proceeding had been commenced or was imminent.
The applicant nevertheless submits that the Summons was required to disclose on its face whether it was a pre-charge or post-charge summons or a pre-confiscation application or post-confiscation application summons. The applicant argues that the issue of a post-charge summons or a post-confiscation application summons "fundamentally alters the accusatorial judicial process" (see X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at [124] (Hayne and Bell JJ)) and involves a greater abrogation of fundamental common law rights and privileges. In such circumstances, it is necessary that an examinee be appraised of the type of summons in order to understand the nature of the compulsory process and to ascertain compliance with the requirements of s 28(1) of the ACC Act.
A similar argument was considered by Charlesworth J in XXVII, namely that s 24A(1) or (2) of the ACC Act implicitly require a summons issued under s 28(1) to contain an express statement as to whether or not it is a post-charge summons: see at [45]-[59]. Justice Charlesworth rejected this argument, concluding that neither s 24A nor s 28(1) contained an express requirement to that effect and that no such requirement could be implied. An appeal was dismissed by the Full Court, although it does not appear that this ground was agitated on the appeal: see XXVII (FC). While it is true that Charlesworth J also made a finding (at [60]) that the summons under consideration in that case had in fact identified itself as a post-charge summons, by expressly referring to the examiner's satisfaction pursuant to s 28(1)(d) that it was reasonably necessary to issue the summons for the purposes of the investigation notwithstanding that the recipient had been charged with a relevant offence, it is clear that this was an alternative basis for decision. That finding on the particular facts in XXVII does not detract from the conclusion that the summons was not required to contain a statement that it was a post-charge summons in order for it to be valid.
I agree with the conclusion in XXVII that neither s 24A nor s 28(1) of the ACC Act require a summons to state on its face whether it is a pre-charge (or pre-confiscation application) or a post-charge (or post-confiscation application) summons. In practice, it is likely that the recipient of a summons will either know or be in a position to ascertain whether he or she has been charged with an offence or whether a confiscation proceeding has been commenced. In so far as a charge or confiscation proceeding is considered to be imminent, that fact might be ascertainable from the written record made by the examiner under s 28(1A) setting out the reasons for the issue of the summons, or perhaps from other sources of information.
The principal significance of the distinction between a pre-charge (or pre-confiscation application) summons and a post-charge (or post-confiscation application) summons is that, in relation to the latter, s 28(1)(d) requires the examiner to have regard to the pending or imminent charge or confiscation proceeding when issuing the summons. I note that s 28(9) deals with the severability of s 28(1)(d), presumably in the event of a successful challenge to the constitutional validity of post-charge or post-confiscation application examinations. In any event, even if there was an implied requirement that a summons issued under s 28(1) must disclose on its face that it is a post-charge or post-confiscation application summons, it is difficult to see why any such requirement would apply to a pre-charge or pre-confiscation application summons. Accordingly, on the facts in the present case, s 28(1) would not require the Summons to state that it was not a post-charge or post-confiscation application summons.
Ground 4 is therefore dismissed.

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