VII v Purcell [2025] FCAFC 135 | Case summary

VII v Purcell [2025] FCAFC 135 | Case summary | Zoe

[85]

The Board consists of the Commissioner of the Australian Federal Police (who is the Chair), the CEO, the Secretary of the Attorney-General's Department, the Comptroller-General of Customs, the Chairperson of the Australian Securities and Investments Commission, the Director-General of Security, the Commissioner of Taxation, and the Commissioner or head of the police force of each State and Territory: s 7B(2) and (3).
The functions of the Board relevantly include, in s 7C(1)(c), authorising an intelligence operation to occur, by a determination made in writing under s 7C(2). As noted in the definition above, such an intelligence operation so authorised is defined by s 4(1) as a "special ACC operation". In this appeal there is no dispute that the Determination, on its face, authorised such an operation. The only challenge is to the constitutional validity of the provision pursuant to which it was issued.
A quorum of the Board is nine members excluding the CEO: s 7F. Questions arising at a Board meeting are generally determined by majority, with the Chair (or a person nominated by the Chair if absent) having a deliberative vote, and if necessary a casting vote, and the CEO not being a voting member at all: s 7G(1), (2) and (3). However, a determination under s 7C(2) cannot be made unless at least nine board members vote in favour, of which at least two must be Commonwealth Board members (that is, holders of Commonwealth positions): s 7G(4).
The appellant does not suggest that there was any irregularity in the process by which the Board voted for, and thereby made, the Determination. However, the absence of any requirement to give reasons forms part of the appellant's argument as to constitutional invalidity.
A determination may identify the federally relevant crime to which it relates at whatever level of generality the Board considers appropriate, including by reference to categories of those crimes or suspected offenders, or any specific allegations of such crimes or offenders: s 7C(4). While the duration of a determination is limited to three years, it may be revoked by the Board at any time: s 7C(4D), (4G).
A determination allows the Commission to exercise a range of coercive powers, relevantly here the power to summon a person to attend a compulsory examination, that is not otherwise exercisable: s 28(7). It is not in doubt that a summons compelling the answering of questions is a substantial incursion into a person's common law rights. As Deane J stated in Baker v Campbell [1983] HCA 39; 153 CLR 52 at 116.6:

[91]

A person served with a summons to appear as a witness at an examination is required to answer the examiner's questions, even if the answer would tend to incriminate the person. Non-compliance with such requirements gives rise to serious consequences, including statutory contempt with the possibility of incarceration for the duration of the life of a determination predominantly as coercion to comply, and indeed beyond that time to meet other objectives, such as denunciation, retribution and deterrence. There is also a range of criminal offences for behaviours such as giving false evidence, with sanctions of fines and imprisonment. Such consequences are far from theoretical as Judges of this Court regularly deal with contempt cases for refusal to answer questions at Commission examinations, and in a series of cases have imposed prison sentences of both determinate and indeterminate duration.
Section 8 establishes the Committee, which is required to meet at least twice a year. Provision is made for any member of the Board to attend any meeting and to participate in discussions if the Committee members present consent. The functions of the Committee are described in s 9 and include monitoring generally the work of the Commission and the Board, overseeing their strategic direction, and receiving reports from the Board to transmit to the governments they represent.
Section 9 also provides that, within 30 days of being given a copy of a determination, the Committee may request further information from the Chair of the Board, which must be provided unless the Chair considers disclosure could prejudice the safety or reputation of persons or the operations of law enforcement agencies (in which case the request must be referred to the Commonwealth Minister, to address that claim of prejudice). Within 30 days of making such a request, the Committee may revoke the determination and notify the Chair and the CEO accordingly.
The Commonwealth Minister can give written directions or guidelines to the Board with respect to its functions generally, but cannot do so in relation to particular special ACC operations without the approval of the Committee: s 18. The Commonwealth Minister, or a State or Territory Minister on the Committee, may also request information concerning a specific matter relating to the Commission's conduct in the performance of its functions from the Chair of the Board or the CEO. Such information must be provided, but requests from State or Territory Committee members are again subject to the same exception for prejudice as applies for information requested by the Committee: s 59.

[121]

4.1 The Board, pursuant to s 7C(4A) of the Act, considers, on the basis of the collective experience of the Board members voting at the meeting, that it is in the public interest that the Board authorise the intelligence operation identified in paragraph 4.2 to occur.

4.2 Pursuant to s 7C(2) of the Act, 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.

Purposes of the intelligence operation

The purposes of the intelligence operation identified in paragraph 4.2 are:

(a) primarily, to collect, correlate and analyse criminal information and intelligence about Specified Financial Offences that may have been, may be being, or may in future be, committed, including by:

(i) undertaking investigations;

(ii) identifying those persons and entities involved in the commission of Specified Financial Offences (including organised crime groups, associates, and facilitators (such as government officials and private sector professionals),

(iii) identifying the relationships between different persons and entities involved in the commission of Specified Financial Offences;

(iv) understanding the methods and techniques used in the commission of Specified Financial Offences;

(v) understanding the dynamic and changing environment in which Specified Financial Offences are committed; and

(vi) identifying vulnerabilities in Australia's financial system (including the banking and financial services industries; remittance, money transfer and payment systems; and gambling, betting and wagering services);

(b) to collect evidence about Specified Financial Offences that may have been or that may be being committed (including by undertaking investigations);

(c) to disseminate the information, intelligence and evidence referred to in paragraphs (a) and (b) above, in accordance with the Act, including to:

(i) assist in the development of government policy and law reform; and

(ii) facilitate enforcement, prevention, disruption and regulation activities (including, where appropriate, arrests, seizures, confiscations and prosecutions); and

(d) contribute to the national database of criminal information and intelligence relating to the commission of Specified Financial Offences.

[124]

[10] 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".

[11] 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).

[12] 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".

[13] 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.

[137]

The appellant accepts that the plurality's reasoning has never been deployed to invalidate any law, but maintains that the validity of s 7C(2) is a live question, referring to questions raised about the validity of this provision in the course of an application to revoke the grant of special leave to appeal in CXXXVIII v Commonwealth [2019] HCATrans 251 at lines 104-107 and 153-159 (Gordon J) and at lines 138-143 (Nettle J).
An invitation to apply obiter reasoning of the kind engaged in Plaintiff S157 in response to an ambit submission by the Commonwealth in that case, to invalidate legislation, calls for considerable caution. That is so notwithstanding the appellant's submission that this reasoning has been cited by intermediate appeal courts and by the High Court in a number of decisions, most recently in Ravbar v The Commonwealth [2025] HCA 25; 423 ALR 241. In Ravbar at [420], Jagot J observed that no analogy could be drawn between the satisfaction of the relevant Minister under the provision being challenged, that it was in the public interest for a division of a union to be placed under administration as expressly confined by the objects of the Act containing the provision, and "a law, for example, providing that 'notwithstanding anything contained in the specific provisions of that statute, the Minister was empowered to make any decision respecting visas, provided it was with respect to aliens' as referred to in Plaintiff S157/2002". The appellant referred to this point in Ravbar to support the existence of a limitation on legislative power of the kind described in Plaintiff S157, and to show that validity could be found where a power conditional upon the satisfaction of the "public interest" was limited by express legislative objects, which he argued did not exist in the context of s 7C(2).
In support of the Plaintiff S157 argument about ostensible limits being incapable of ascertainment or enforcement by Ch III courts so as to render a provision invalid, the appellant also relies upon Graham at [48] (Kiefel CJ and Bell, Gageler, Keane, Nettle and Gordon JJ):

[140]

Another general point of principle that needs to be addressed is the extent to which the reasoning in Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; 243 CLR 319 assists either side's arguments, because the primary judge relied upon it by analogy in upholding the validity of s 7C(2): J[147]-[149]. The appellant contends that the primary judge erred in interpreting, and therefore applying, the High Court's reasoning on the question of validity. The substance of the appellant's point is that the paragraphs of Plaintiff M61 relied upon by the primary judge (principally [56]-[59]), did not support the validity of the public interest aspect of the power under challenge, because validity was determined not on that basis, but rather upon the basis that there was nothing invalid in bestowing a non-compellable power; that is, a power that did not have to be exercised, so was not amenable to mandamus for that reason, such that the public interest aspect was not considered. As such, the appellant contends that Plaintiff M61 was neutral, rather than supportive, of validity of the public interest condition in s 7C(4A) for the exercise of the power in s 7C(2).
The Commission submits in response to this discrete point that Plaintiff M61 at [56], which refers to the entirety of the provision that was unsuccessfully challenged, not just the subsection referring to non-compellability, at least contains seriously considered dicta that a provision which contains a power exercisable by reference to a public interest test without identified criteria was not, implicitly for that reason alone, a provision 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. However, as developed below, the undefined nature of the public interest test is but one aspect of the appellant's argument so that even if read in that way, such dicta does not markedly advance the conclusion required to be reached either way.
The primary judge did not err in concluding that Plaintiff M61 did not support the appellant's case for invalidity, which was the ultimate conclusion reached at J[149], but this does not do much to support the respondents' argument as to validity. Read carefully, Plaintiff M61 does not really advance either side of the present debate because it concerned a very different legislative regime. While the reliance upon it by analogy by the primary judge did not entail error, it provides less support for the conclusion that his Honour reached than might otherwise be apparent.

[142]

[75] The arguments divide along battlelines not unfamiliar where questions about the constitutional validity of a law are abstracted from questions about the concrete application of that law to determine the rights and liabilities of the parties. The party seeking to challenge validity advances a literal and draconian construction, even though the construction would be detrimental to that party were the law to be held valid. The party seeking to support validity advances a strained but benign construction, even though the construction is less efficacious from the perspective of that party than the literal construction embraced by the challenger. The constructions advanced reflect forensic choices: one designed to maximise the prospect of constitutional invalidity; the other to sidestep, or at least minimise, the prospect of constitutional invalidity. A court should be wary.

[76] "If the choice is between reading a statutory provision in a way that will invalidate it and reading it in a way that will not, a court must always choose the latter course when it is reasonably open" [Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 644 [28]]. The nature of that mandated choice must not be misunderstood. The choice, where binary, is between two constructions: both of which are reasonably open in the application of ordinary principles of statutory construction; one of which is in opposition to the Constitution, the other of which is in conformity with the Constitution [Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 504 [71]]. Questions as to the severance or reading down of otherwise invalid provisions aside [cf Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 92. See, relevantly, s 59 of the Interpretation Act (NT)], a court has no warrant for departing from ordinary principles of statutory construction in pursuit of constitutional validity. And a court has no warrant for preferring one construction of a statutory provision over another merely to avoid constitutional doubt [Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352 at 381 [65]- [66]].

[146]

The appellant takes issue with the fact that there is a single condition for the exercise of power in s 7C(2), being that the Board considers, on the basis of their collective experience, that it is in the public interest that they authorise the intelligence operation relating to a federally relevant crime to occur. He contends that the public interest criterion is an illusory condition because it has no fixed or precise content and is unbounded in the specific context of s 7C(2).
The appellant describes the "public interest" criterion as "nebulous and elastic", being without any definition, criteria or guidance as to what can be taken into account. There is also no requirement to record what is in fact taken into account. This latter point is made clear by way of analogy from cases which found that the prior criterion, since repealed, which referred to the efficacy of ordinary methods of policing, did not need to be referred to by the Board in the determination: see P v Board of the Australian Crime Commission [2006] FCAFC 54; 151 FCR 114 (P v Board of ACC) at [22]-[23] (Mansfield, Dowsett and Lander JJ). Similarly, the Board is not obliged to give reasons or grounds when making a determination: Z v Australian Crime Commission [2010] FCA 803; 188 FCR 85 at [100] (Reeves J). The appellant contends that the absence of any criteria or guidance, or need to give reasons, is a feature contributing to a conclusion of invalidity. The appellant's case overtly is not that the power to make a determination is merely inadequately restrained, which might not lead to invalidity, but rather that it is of such indefinite width that the condition for exercising it is incapable of enforcement at all; that there is no way for a Ch III court to identify or enforce the limits of the power conferred.
While the appellant does not go so far as to say that making the exercise of the power in s 7C(2) conditional upon the fulfilment of a single condition would necessarily lead to a conclusion of invalidity, the fact that the public interest criterion is the sole condition does form part of his argument. In that context, the appellant drew attention to amendments made in 2019 which removed certain criteria for exercising the power in s 7C(2). Previously, before making a determination to authorise an intelligence operation, the Board had to consider the effectiveness of alternative investigative methods which do not involve the use of powers in the Act. Those provisions were replaced with the sole condition now contained in s 7C(4A). The appellant contends that the removal of such express mandatory considerations has resulted in a criterion which has no conceivable limits. For this reason, he argues that there is no real content to the test of public interest because the legislative regime does not define or limit the range of factors that might inform the public interest.
As to the breadth of the public interest criterion in s 7C(4A), the respondents rely on Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 and particularly on [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), as follows, omitting footnotes:

[148]

While not explicitly stated in the provision, the respondents argue that the assessment of public interest in the Act should be read in a way that is consistent with the observations in Pilbara, as being confined by the subject matter, scope and objects of the Act. The respondents submit that this sort of discretion is commonplace in Commonwealth legislation, none of which have been found to exceed the limits identified in Plaintiff S157. The respondents rely upon the most recent rejection of such an argument in Ravbar, in which the challenged provision allowed a Minister to make a public interest determination, seemingly on an entirely unconstrained basis, for a scheme to place a union or one of its branches under administration. Indeed, in addition to a list of prescribed matters that had to be provided for, the scheme contemplated in Ravbar could provide for any other matters that the Minister considers appropriate. The substance of the respondents' point is that if such a "broad textured provision" did not attract a comparison to the hypothetical invalid law in Plaintiff S157, it was difficult to see how a power that was much more clearly defined could possibly do so.
The respondents contend that the defined nature of the power arises from the substantive and procedural requirements for satisfying the public interest test. In terms of procedural requirements, the respondents point in particular to the voting requirements described at [12] above, the maximum duration of the determination being no longer than three years described at [14] above, and the requirement in s 28(2) to attach a copy of the determination to the summons. In relation to the substantive public interest criterion, the respondents submit that the notion of public interest is tied to the collective experience of the voting Board members, which reflects Parliament's judgment that such a body of individuals is well-placed to decide whether that threshold is met before authorising the Commission to utilise coercive powers. In that way, the conclusion that such an authorisation is in the public interest is required to be made in the context of the particular and unusual scheme created by the Act, as identified in P v Board of ACC (Mansfield, Dowsett and Lander JJ), which informs when a determination might be in the public interest. Their Honours said (at [27]):

[157]

The appellant accepts that a federally relevant crime is confined to those involving two or more offenders, substantial planning, and engaging the definition of "serious and organised crime" in s 4(1) (with the exception of incidental offences as defined in s 4(2)), but maintains that there are no logical constraints or bounds on the criterion of public interest, given its breadth and the imprecision in the various concepts it employs. In particular, the appellant disputes the Commission's contention that the definition of "intelligence operation" is any fetter on the Board's power under s 7C(2), or otherwise supplies any content to the discretion.
Again weighing up the competing arguments, the appellant's reliance upon asserted weaknesses in the requirement in s 7C(4A) of a federally relevant crime, a term and concept at the centre of the Commission's functions and powers, does not survive close scrutiny. While the concept covers many activities, it is far from being ambulatory. It is tied to an identifiable category of offences, but limited to a subset of them of higher levels of seriousness, both in terms of the range of offence provisions themselves and in terms of their objective seriousness, with references to multiple participants, planning and the offences amounting to serious and organised crime as defined. While the ambit remains wide, it is confined in material ways. The asserted imprecision relied upon is a feature of the myriad of ways in which such criminal activities may be able to be carried out. But the focus is clearly on more serious and systematic types of criminal conduct. This aligns with the function of the Commission, being a national organisation specialising in high end criminal intelligence and associated investigations. The making of determinations, rather than providing authorisation at large, provides focus in what otherwise would likely be an amorphous and poorly directed process. It is a sound basis for concluding that this structure contributes to validity, rather than invalidity.

[162]

The underlying, and in places overt, thrust of the respondents' case is that the appellant's arguments rise no higher than the statutory regime making judicial review of a decision of the Board to make a determination difficult. Such difficulty arises by reason of the very nature of the power, the fact that it is broadly defined, and the fact that it depends on a group of people with collective expertise across a range of fields assessing the public interest in authorising, in this case, an intelligence operation (which includes undertaking investigations), directed to a wide range of past, current and future stipulated financial offences. Despite this, the respondents contend that the power falls squarely within the ambit of what could reasonably be expected of an organisation that, by its alternative title and aspects of its legislated functions, is directed to criminal intelligence activities.
The respondents also point to the exercise of the power as also being subject to the duty of legal reasonableness as described in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23]- [24] (French CJ) and at [65] (Hayne, Kiefel and Bell JJ).
The appellant contends in rebuttal that the duty of legal reasonableness is no answer, because it would not have saved a hypothetical law of the kind addressed in Plaintiff S157 and therefore cannot save s 7C(2) if it is otherwise invalid.
Again, weighing up the competing arguments, for reasons explained above and below, s 7C(2) is not invalid solely because of its broad nature. The generality permitted for the terms of a determination is not in and of itself a compelling basis for supporting a conclusion of invalidity. The purpose of a determination is not to authorise open-ended and directionless activity by the Commission, but rather to permit a thorough yet focused examination of the causes and manifestations of the most serious examples of federal, and federally related, organised criminal activity.
To require the Commission to identify the precise purpose of the intelligence operation, or to identify any particular offence, conduct, transaction, person or timeframe in advance, would amount to approaching this task from the wrong end of the process. The process of making a determination is not directed to drawing up a charge for an offence after evidence has been obtained, nor with investigating an offence already suspected of being committed, but rather the antecedent activity of ascertaining whether, when, where, how and, if possible, by whom, such behaviour has been, is or is likely to be, engaged in. It is not confined to traditional concepts of investigation, prosecution, conviction and punishment, although these may well be features, but is also directed to more advanced and prophylactic outcomes of detection, disruption and prevention. It is more akin to wide-ranging intelligence activities by organisations such as the Australian Security Intelligence Organisation (ASIO), based on looser criteria and endorsed by the High Court more than four decades ago in Church of Scientology: see in particular Mason J at 61, where his Honour observed, in addition to the portion reproduced above at [63]:

[165]

The appellant takes issue with the identity of the repository of power at the time that a decision is made. This is advanced in two respects: the Board not comprising elected officials accountable to parliament, which in some unclear way is said to reinforce the "limitless breadth" of the public interest criteria in s 7C(2); and to an apparently much lesser extent the lack of identification in how each member of the Board voted. The second aspect may be addressed immediately: it is not apparent how the absence of a breakdown of voting would lead or even contribute to a conclusion of invalidity. It is the response to the first point that matters.
The appellant points to at least nine of the Board members being individuals drawn from disparate backgrounds with their own institutional interests and priorities, who are not political officers personally accountable to the Parliament or the electorate for the administration of the Act or their evaluation of the public interest. As well, a determination is not a legislative instrument (per s 7C(4K)) and therefore does not need to be tabled in Parliament. This is said to matter because the presence of this feature in other statutory contexts reinforces the amorphous nature of the public interest as a decision-making criterion. By contrast, case law discussing the concepts of public interest or national interest, especially in the field of migration law, often concern powers that are vested in Ministers and accompanied by a requirement to table a statement in Parliament setting out inter alia the reasons for thinking that their actions are in the public interest, with the appellant citing in particular Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 and Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336. The appellant asserts that such a requirement is a manifestation of responsible government by providing accountability to Parliament in recognition of the special nature of the decision being made. The appellant contends that there is nothing of that kind here, despite the powers being arguably even more remarkable.
The respondents acknowledge that the power in s 7C(2) lacks political accountability in the sense that it is not exercised by a Minister who is directly accountable to Parliament and to the electorate. Despite this, the respondents point to the Board (and to an extent, the CEO) being accountable to the Committee described at [19] above (made up of the Commonwealth Minister and a minister from each participating State and Territory) and to the oversight powers bestowed on the Commonwealth Minister described at [21] above, as imposing meaningful constraints in the form of accountability to elected representatives. In particular, the respondents point to the power of the Committee to revoke a determination (which is already limited to a three-year duration) and to seek information (albeit directed to the Commission itself rather than the Board, there being no duty to do so and there being exceptions allowing for that not to be provided), and the power of the Commonwealth Minister to give directions and to issue guidelines (albeit of limited scope in some respects).
It is unclear how, as the appellant submits, the characteristics of the repository of the power conferred by s 7C(2) reinforces the "breadth" of the condition for the exercise of that power, namely, whether it is in the "public interest" to authorise an intelligence operation or investigation. Nevertheless, the need for the collective experience of a majority of very high-level officials holding relevant leadership positions to be deployed in determining whether it is in the public interest to exercise power under s 7C(2) counts against a conclusion that the concept of the "public interest" is unbounded. The fact that only a subset of them may participate in the making of a given determination is neither here nor there. The very high level of official eligible to be a member of the Board is of itself significant. That is even more so when regard is had to the voting requirements and both the individual and collective qualities required to be applied to the decision-making process. While the Board has less political accountability compared to a decision-making body comprised of one or more elected officials, that has no effect on the validity of s 7C(2).

[167]

[150] 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.

[151] 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.

[152] 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).

[153] 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.

[190]

[194] 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.

[195] 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.

[196] 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.

[197] 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.

[201]

(a) refers to the following legislative provisions: s 19(3)(a) of the Australian Securities and Investments Commission Act 2001 (Cth); s 249L(1)(b) of the Corporations Act 2001 (Cth); Sch 1, cl 1(c)(ii) of the Expiation of Offences Regulations 2011 (SA); and s 13(2)(a) of the repealed National Crime Authority Act 1984 (Cth);

(b) points to the observation by Jenkinson J in Australian Securities Commission v Graco (1991) 29 FCR 491 at 495 that the expression "general nature" invites "both comprehensiveness and brevity in description of the matter, and gives no encouragement to definitional particularity", which was quoted with approval by the Full Court in Kennedy v Australian Securities and Investments Commission [2005] FCAFC 32; 142 FCR 343 (Black CJ, Merkel and Emmett JJ) at [110];

(c) submits that the meaning of the "general nature of the matters" for questioning in s 28(3) is informed by the purpose of the requirement for its inclusion in a summons, and what is necessary to identify the "general nature" will also be informed by the relevant "matter" itself, citing the relatively recent South Australian Court of Appeal decision of City of Playford v Mathie [2025] SASCA 45 at [94] (Kourakis CJ, Doyle and David JJA), concerned with whether the "general nature" of a road traffic offence was set out in an expiation notice;

(d) asserts that the word "matter" in the present context bears the ordinary meaning of an affair, subject or thing, citing A1 v National Crime Commission (1996) 67 FCR 464 (Merkel J) at 472, with that statement of principle being unaffected by a successful appeal on a different point (National Crime Commission v A1 (1997) 75 FCR 274) and also citing Jenkinson J in Graco at 497-8;

(e) asserts that, when read with [11(a)] of the SOFAC summarised at J[17], the matters that he is to be questioned about are outlined at [65] of the SOFAC, and the unredacted parts of that document confirm that he is to be questioned on "his practices, specifically engaging other SOC [Serious and Organised Crime] groups to conduct illicit activities on behalf of himself and" a person whose name is redacted. Despite this, the description of the "matter" in the Application "finds no expression in the Summons";

(f) asserts that the primary judge's finding at J[197] that this topic "falls within the general nature of" the matter set out at [5(c)] of the Summons, namely "the identities of other persons and entities" involved in the nominated activities and the "nature and extent of their involvement": J [197], cannot be sustained, for two interrelated reasons.

[204]

The appellant asserts that [5(c)] of the Summons cannot be said to "subsume the qualitatively distinct matter of the recruitment of agents" by him, because the matter set out at [65] of the SOFAC has certain distinctive features involving serious allegations of complicity, common purpose and joint criminal enterprise on the part of the appellant. Such allegations, if proven, could give rise to criminal liability on the part of the appellant, irrespective of whether he personally engaged in the physical elements of an offence: Mitchell v The King [2023] HCA 5; 276 CLR 299 at [55] (Gordon, Edelman and Steward JJ). These features are alleged to be missing from [5(c)] of the Summons as it does not refer to the appellant acting as an alleged principal and authorising other parties to carry out illegal activities as agents. The appellant submits that the distinct nature of agency means that a fair description of its "general nature" is not satisfied by a reference to only "the nature and extent of the involvement of others". In that way, the appellant goes so far as to say that the Summons conceals the defining feature of the matter of agency, which concerns the role of the appellant in enlisting or authorising third parties.
Second, the appellant contends that in concluding that the Summons set out the general nature of the matters he was to be questioned upon, his Honour "pays no heed" to the purpose of the requirement in s 28(3), which includes at least considerations of natural justice and fairness to the person proposed to be examined, being a requirement imposed by s 15AA of the Acts Interpretation Act 1901 (Cth). The appellant asserts that he was required to be put on notice of the Commission's intention to question him on his supposed practice of engaging other serious and organised crime groups to carry out illicit activities on his behalf and on behalf of others, and in failing to so, the Summons adopted "an unduly expansive view of the generality required".
While the appellant acknowledges that s 28(3) seeks to strike a balance between the interests of a witness and the effective conduct of a special ACC operation, of which the examination forms part, citing the first instance decision (upheld on appeal) of Mansfield J in S v ACC at [37], he asserts that the generality of a summons cannot be such as to render nugatory the legislative concern to afford some measure of protection to a witness, including by way of fair notice of lines of inquiry, citing North J in Australian Securities Commission v Avram (1996) 70 FCR 481 at 487-488. He asserts that the requirement for this degree of detail of notice is fortified by the extraordinary nature and consequences of the power conferred, as adverted to earlier in these reasons. These matters, he contends, "stand firmly against" a construction of s 28(3) which would denude the phrase "general nature of the matters" of meaningful content, in this case, by eliding the matter of his purported practice of engaging others to act as agents, with the matter of the identity and involvement of others.
The appellant further asserts that it was reasonably practicable to set out the general nature of the matter of recruitment or agency in the Summons because it had already been set out in specific terms in the Application. By way of example, the appellant contends that a compliant summons could simply have stated words to the effect of "the appellant is to be questioned about his role in engaging other serious organised criminals to perform the nominated activities on behalf of himself and others". Such disclosure, the appellant argues, would promote the legislative object of preserving some fairness to him in order to maintain his rights as someone subjected to the Commission's compulsory examination powers.

[205]

The respondents address the appellant's submissions in a myriad of ways, but as the critical point advanced in support of this ground of appeal relies upon the Application as a means of identifying what was wrong with the Summons, it is convenient to focus on the response to this indispensable part of the appellant's argument. The respondents point out that the Application forms no part of the legislative scheme, but rather is an internal document evidently developed and deployed by the Commission to give structure to the overt requirements of that scheme. If the point made by the respondents on this issue is correct, and the primary judge has identified what was required without error being established, the Court need go no further.
The respondents characterise the appellant's approach as dissecting the SOFAC part of the Application to locate additional information that could have been mentioned in the Summons. That is described as inverting the approach mandated by s 28(3), because, they argue, it is not open simply to point to more information that could have been mentioned in the Summons in order to contend that it should have been included as a requirement. On this argument, what matters is the minimum that is required to meet the threshold of setting out the general nature of the matters about which the recipient is to be questioned; and whether the primary judge erred in the assessment of what was required.
The second limb of this aspect of the respondents' argument is that even if dissecting the Application in this way was permissible, it fails on the face of that document because, as the primary judge pointed out at J[195], the Application at [76] distinguishes between specific evidence sought from the appellant, and the general nature of the matters in relation to which he was going to be questioned. The primary judge found that the general drew upon the specific, which it plainly enough did: the chapeau to [76] of the SOFAC, which then reproduced the same text as the subparagraphs in [5] of the Summons, stated:

[207]

The other statutory provisions and the cases that have referred to and interpreted them, as relied upon by the appellant, have some limited general relevance, but say little of real use about s 28(3) and how it was sought to be met in this case. In particular, the requirements attaching to the expiation periods for traffic offences described in Playford v Mathie are of no real assistance to the very different legal and factual context present here.
The requirement in s 28(3) is to "set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned". That requirement is subject only to an exception that it would prejudice the effectiveness of the special ACC operation for the summons to do so, which was not invoked. The core of the appellant's case, as set out in some detail above, is that, when regard is had to the contents of the Application, the ordinary obligation to disclose the general nature of the matters in relation to which he was to be examined was not complied with, having regard to the fundamental rights in peril and the consequences of not complying with the compulsion.
The appellant's argument focuses on the role of the SOFAC, and in particular [65]. He ultimately challenges the primary judge's finding at J[197] that the topic of him being questioned on his practices, specifically engaging other serious and organised crime groups to conduct illicit activities on behalf of himself and someone else falls within what is identified in cl 5(c) of the Summons, and in particular the phrase "the identities of other persons and entities" involved in the nominated activities and the "nature and extent of their involvement". This argument relies upon identifying essentially quite fine and semantic differences that, apart from anything else, goes far beyond the general nature of the matters in relation to which the appellant was to be questioned. It is not to the point that more detail could have been provided about any of the specific topics proposed to be the subject of questioning, or even that the contemplated questioning might go beyond the four corners of the description given in [5(c)], or for that matter, [5(a)] or [5(b)] of the Summons, because that is of itself a significant advance on what the provision requires. To do so would introduce an unnecessary degree of specificity into a requirement expressly cast in general terms. None of the authorities cited by the appellant, properly understood, supports any requirement to do this.
The best answer to the appellant's case on this ground, which relies upon a detailed and forensic comparison between the contents of the specific information in a small part of the unredacted portions of the SOFAC and the more general information identified in [5] of the Summons, and in particular subparagraph (c), is to go back to the primary judge's reasons. His Honour made the following correct and astute observations:

VII v Purcell

At a glance

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Before

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Judgment (217 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (10)