X v Australian Crime Commission

THE STATUTORY SETTING 4 The ACC is a recently reconstituted statutory corporation: the ACC Act, s 7. Its functions include the investigation of matters relating to "federally relevant criminal activity" when authorised so to do by the Board of the ACC. That Board is established by s 7B of the Act. Included amongst its functions are: (s 7C(1)): "(b) to provide strategic direction to the ACC and to determine the priorities of the ACC; (c) to authorise, in writing, the ACC … to investigate matters relating to federally relevant criminal activity; (d) to determine, in writing, whether … such an investigation is a special investigation." Before determining whether an investigation is to be a special investigation the Board is required by s 7C(3) to:

"consider whether ordinary police methods of investigation into the matters are likely to be effective." 5 The significance of a determination that an investigation be a special one is that it triggers the ACC's access to a range of statutorily conferred coercive powers (for example, to obtain a search warrant (s 22(1)) or to conduct an examination (s 24A)). In a variety of ways safeguards are specified in the Act in the making of such a determination. Apart from the s 7C(3) requirement noted above, the Act requires that there be a special and prescribed majority vote in favour of the determination: s 7G(4) that the determination must (s 7C(4)): "(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and (b) state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and (c) set out the purpose of the operation or investigation"; and that the Chair of the Board must, within a period of 3 days, give a copy of the determination to the Inter-Governmental Committee ("the IGC"). 6 The IGC is established by s 8 of the Act. It is constituted by Commonwealth and State ministerial representatives or their delegates. Its functions include monitoring generally the work of, and overseeing the strategic direction of, the ACC and the Board: s 9(1)(a) and (b). The ICG is empowered, subject to strict time limitations and prescribed voting majorities, to revoke a special investigation determination made by the Board: s 9(2), (7). Such revocation takes effect when the CEO of the ACC is notified: s 9(8); but does not affect the validity of any act done in connection with the investigation before the CEO is notified: s 9(9). 7 The Act makes provision for the appointment of examiners who may conduct an examination for the purposes of a special investigation: s 46B; s 24A. Division 2 of the Act gives an examiner a number of coercive powers relating to the conduct of examinations and imposes obligations on persons receiving a summons to attend, or a notice to produce to, an examination: see s 28 and s 30. A summons issued by an examiner must, by s 28(2): "be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation." 8 Section 30, on which the privilege issue in this proceeding is founded, provides insofar as presently relevant that: "(2) A person appearing as a witness at an examination before an examiner shall not: … (b) refuse or fail to answer a question that he or she is required to answer by the examiner; … (4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if: (a) a person appearing as a witness at an examination before an examiner: (i) answers a question that he or she is required to answer by the examiner; or (ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and (b) in the case of the production of a document that is, or forms part of, a record of an existing or past business - the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and (c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty. (5) The answer, or the document or thing, is not admissible in evidence against the person in: (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty; other than: (c) confiscation proceedings; or (d) a proceeding in respect of: (i) in the case of an answer - the falsity of the answer; or (ii) in the case of the production of a document - the falsity of any statement contained in the document."

FACTUAL SETTING 9 On 15 May 2003 the Board made an authorisation and determination entitled "Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003" ("the Authorisation and Determination"). The document stated on its face that it was made pursuant to s 7C of the ACC Act. The investigation apparently had its genesis in information available to Australian law enforcement agencies indicating that established criminal networks were involved within Australia in the supply of illegal drugs, the corruption and bribery of officials, perverting the course of justice, violence related offences and securities market misconduct: Sch 1, cl 2. 10 For present purposes the two relevant provisions of the Authorisation and Determination were as follows: "4. Authorisation Pursuant to paragraph 7C(1)(c) and subsection 7A(d) of the Act, the ACC: (a) is authorised to investigate the matter mentioned in Schedule 1 relating to federally relevant criminal activity until 31 May 2004; and (b) is requested to provide a report to the Board on the outcomes of this investigation at the first Board meeting after 31 May 2004. 5. Determination Pursuant to paragraph 7C(1)(d) and subsection 7C(3) of the Act, the Board: (a) has considered whether ordinary police methods of investigation into the matter mentioned in Schedule 1 relating to federally relevant criminal activity are likely to be effective; and (b) determines that the investigation mentioned in Schedule 1 is a special investigation." 11 On 28 April and again purporting to act under s 7C of the Act, the Board made a determination entitled "Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) Amendment No 1 of 2004" ("the Amendment"). Its operative provision for present purposes was in the following terms: "The Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003 made by the ACC Board on 13 May 2003 and signed by the Chair of the Board on 15 May 2003 is amended as follows: Paragraph 4(a) and 4(b) delete 31 May 2004 and insert 31 May 2005." 12 On or about 21 May 2004, the examiner appointed under the Act issued a summons to the applicant requiring her to appear before him on 31 May 2004 to give evidence in relation to her knowledge of the involvement of certain named individuals including her husband in an enterprise to import illegal narcotics into Australia. Both the Authorisation and Determination and the Amendment were attached to the summons. 13 The applicant attended before the examiner on the prescribed day. Through her counsel she submitted that the Amendment was not valid. She also asserted the right to refuse to answer questions on grounds (inter alia) of self-incrimination in respect of a foreign offence. The examiner rejected these submissions and his reasons for decision were published on 9 June 2004. His decision insofar as it related to the privilege against self-incrimination is challenged in this proceeding.

The First Issue: The Amendment 14 The applicant advances two principal contentions in disputing the validity of the Amendment. The first is that the Amendment only amended the "authorisation" in the Authorisation and Determination. In so doing it created a new investigation for a different period which in turn had to be determined to be a new special investigation in accordance with the procedures and subject to the safeguards of the ACC Act. Implicit in this is that any amendment of an investigation changes its character from that which was previously approved and for that reason requires a new determination to be made if it is to be a special investigation. It is said that to give the ACC access to coercive powers for an additional year is a significant change in what had previously been adopted or approved. 15 Secondly, it is contended that the ACC does not have any express power to amend a special investigation and it cannot rely upon the provisions of the Acts Interpretation Act 1901 (Cth) s 33(3) or s 33(1) to remedy this deficiency. I will elaborate on this submission below. 16 It is the applicant's submission in short that the first determination is unalterable for all time. The only way the same subject matter could be inquired into for a further period is by constituting a completely new and separate special investigation. 17 The respondent's contention is multi-tiered. First, it is said the applicant has not proved that the Amendment was not made either in the manner required by s 7C of the Act or in the manner she contends is required. Secondly it is contended that the power to amend is confirmed by s 33(3) of the Acts Interpretation Act. Thirdly, alternatively, if the Amendment did not amend the Authorisation and Determination, it was a fresh authorisation and determination for the purposes of s 33(1) of the Acts Interpretation Act. Finally, an implied power to make the particular amendment in question is relied upon. 18 Before giving my own conclusion, I should refer at the outset to the provisions of s 33(1) and (3) of the Acts Interpretation Act. These provide: "(1) Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires. … (3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument." 19 Turning to the applicant's contentions, there are two matters I would note at the outset. First, notwithstanding the variety of prescriptions in the Act governing the making of a determination that an investigation is to be a special investigation, the Act does not impose, or make provision for the imposition of, time limitations on the duration of such investigations. It is unsurprising, given the subject matter of such investigations, that the legislature did not seek so to circumscribe the ACC. For whatever reason - and this cannot on the material before me be a proper subject of inference - in this matter the Board chose to impose a time limit on the investigation. It would, in my view, be quite surprising if the consequence of its so doing was either to disable itself from extending the time in which to complete the special investigation it had authorised, or to require the ACC to make a report of the outcomes of the investigation by the set date even if the investigation was incomplete. Nonetheless, it is said I am driven to such conclusions. 20 The second matter I would note is that in making the Amendment, no less so than in making the original Authorisation and Determination, the ACC purported to act under s 7C. As the applicant has conceded, there is no evidence before me that the Amendment was not actually made in compliance with the requirements of the ACC Act. But the applicant goes on to contend that it was invalid because it did not on its face disclose that it complied with the requirements of the Act. Why it should disclose this has not been explained. 21 The Amendment was clearly intended to be read with the earlier Authorisation and Determination. Collectively, these documents refer to those matters which the Act requires to be included in a determination: see s 7C(4). Beyond this, though, there is a number of matters prescribed by the Act in, or consequent upon, the making of a determination on which these documents are silent: see e.g. s 7G(4) on the prescribed voting majority. There is, though, no statutory requirement that those matters be referred to in the s 7C determination. I can see no reason for the alleged invalidity arising from a failure to refer to them. 22 The appropriate principle to be applied to the Amendment is that "the validity of an administrative … decision and the legality of steps taken pursuant to it are presumed valid until the … decision is set aside in appropriate proceedings": Ousley v The Queen (1997) 192 CLR 69 at 130. The "appropriate proceedings" here are under the AD(JR) Act. It is well established that in such proceedings it is for the applicant to establish her case that the Amendment is invalid: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671-672. To the extent that the alleged invalidity required proof of the non-existence of asserted "jurisdictional facts" the applicant here has not discharged her burden: Eatts v Dawson (1990) 21 FCR 166 at 171. She has not sought to adduce evidence from which a non-compliance with the requirements of the Act could properly be inferred. 23 I turn now to the applicant's two contentions. The first - that the Amendment created only a new investigation but not a new special investigation - can be disposed of shortly. What was established by the Authorisation and Determination was an investigation having a particular character, i.e. that of a special investigation. What the Amendment purported to do was to extend the period for which that investigation was authorised. Assuming the Board had power to extend that investigation, the only amendment it needed to make was to extend the period specified in pars 4(a) and (b) of the Authorisation and Determination for which the special investigation was authorised. This is what it did. 24 The critical question is whether it had the power to extend that investigation. In my view it did. By virtue of s 33 of the Acts Interpretation Act that power was included within the Board's s 7C power to authorise an investigation which the Board determines to be a special investigation. 25 To reiterate the terms of s 33(3), it provides: "Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument." 26 The two controversies raised by this sub-section that have resurfaced in this proceeding are (i) What is an "instrument"? and (ii) Does the subsection apply only to instruments of a particular kind? Persuasive recent authority relieves me of the need to enter upon either of these issues in any detail.

"Is a s 7C determination an instrument?" 27 The term "instrument" is not defined in the Acts Interpretation Act, save to the extent that it includes "rules, regulations and by-laws", though it is used, seemingly with a common meaning, in several other sections of the Act and notably in s 46. Its meaning in this setting has, in consequence, been derived primarily from ordinary legal usage. So in R v Ng (2002) 5 VR 257 at [48] the Victorian Court of Appeal indicated that: "According to Stroud's Judicial Dictionary an instrument is a writing, and generally imports a document of a formal legal kind. Black's Law Dictionary relevantly defines it as 'A written legal document that defines rights, duties, entitlements or liabilities, such as a contract, will, promissory note, or share certificate'. Most helpful perhaps is the following definition in The Oxford English Dictionary: 5a Law. A formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form, so as to be of legal validity." 28 In Azevedo v Secretary, Department of Primary Industries & Energy (1992) 35 FCR 284, French J held that a plan of management made under fisheries legislation which circumscribed the exercise of powers and functions under that legislation was an instrument for the purposes of s 46 of the Acts Interpretation Act. His Honour indicated (at 300) that while it was debateable whether the plan could be said to have direct legal effect - "Nevertheless, in my opinion, the statutory requirement that a determination be made by instrument in writing and the ordinary meaning of the word 'instrument' require that a plan of management under the Fisheries Act be considered as an instrument for the purposes of s 46 of the Acts Interpretation Act." And in Barton v Croner (1984) 3 FCR 95 at 110 the Full Court observed that the term instrument is "of wide import" and, in the Acts Interpretation Act, is used to include at least "any writing designed to carry into effect a statute". 29 A "determination" under the ACC Act is not simply a decision evidenced in writing as the applicant suggests. It is a form of writing with prescribed elements. It both records the fact of a determination and it is designed to carry the ACC Act into effect in the sense that it can trigger the ACC's access to the Act's coercive powers. Its legal significance is manifest in the safeguards surrounding the making of a determination. It is an "instrument" for the purposes of s 33(3).

"An instrument of a particular kind?" 30 There are two streams of Federal Court authority which have taken inconsistent views on this question. One stream would limit the class of instruments to which the term applies to instruments of a legislative character. The other would extend it to executive or administrative instruments. This conflict has recently been reviewed at length by Emmett J in Heslehurst v Government of New Zealand (2002) 117 FCR 104 at [12] ff (for the purposes of s 33(3)) and by the Victorian Court of Appeal in R v Ng above (for the purposes of s 46). Both decisions rejected the limitation of these provisions to legislative instruments. Ng, I would note, has recently been applied by Ryan J in Glaxosmithkline Australia Pty Ltd v Anderson [2003] FCA 617 at [28]. 31 In my respectful view, the conclusions of Emmett J and of the Court of Appeal are compelling and ought be followed. The construction they place on the respective provisions accords, for the reasons their Honours have given, with their textual indications, with the legislative history of the Act and with the provisions' legislative context which includes, importantly, s 4 of the Act which refers explicitly to "instruments of a legislative or administrative character (including rules, regulations or by-laws)". 32 Section 33(3) extends to powers to make instruments of an executive character. The power to authorise an investigation and to make a determination under s 7C of the ACC Act are such powers. 33 The question, though, remains whether the ACC Act manifests a "contrary intention" which precludes the s 7C powers being construed as including a power to repeal, rescind etc an authorisation and determination. In my view, it does not. 34 It is important to recall that the s 33(3) power is exercisable in like manner and subject to the like conditions as the original power to make etc an instrument. I emphasise this limitation for this reason. Much that underpinned the applicant's challenge to the validity of the Amendment proceeded on the assumption that the safeguards built into the Act when making, and after the making of, a special investigation determination would be put at nought if the special investigation could later be varied in any way. 35 It clearly is the case that the legislature intended to, and did, impose safeguards by way of limiting conditions on the making of a special investigation determination. But once such a determination has been made and the special investigation as here has been authorised for a designated period, a later decision merely extending the period of that investigation involves no change to the reason for, or to the scope and purpose of, the investigation. It remains the same special investigation. The change is to the time in which that investigation is to be conducted. There is, in my view, nothing in the scheme of the Act and in particular in the nature of the safeguards which condition the making of a special investigation determination, which suggest that the power to authorise a special investigation in its setting does not admit of a power to extend the period of an investigation. Those safeguards perform their function in the processes leading to (s 7C(3) and (4); s 7G(4)), or in consequence of (s 9(2), (7)), the determination that the investigation was a special one. 36 The Act simply does not address the question of the duration of investigations, special or otherwise, and it is unsurprising that it does not. The investigative function seems hardly one suited to performance by inflexible timetables. And there is nothing in the text and structure of the Act to suggest that the Board, by setting a time limit for an investigation (special or otherwise), thereby disabled itself from extending the period of that investigation. I regard it as a form of word play divorced from practical reality to suggest that every such extension involves in fact the establishment of a separate and distinct, a new, investigation. 37 I do not wish to be taken as suggesting that in no circumstances will the safeguards relied upon by the applicant have to be complied with if a variation of, or amendment to, an authorised special investigation is to be validly made. If the amendment changes the reason, scope or purpose of what was previously authorised and determined such that a new determination is being made in substance, that amendment would, as s 33(3) dictates, need to be exercised "in the like manner and subject to the same conditions" as a determination under s 7C(1)(d) of the Act. 38 If I am incorrect in the view I take of the applicability of s 33(3) of the Acts Interpretation Act to the provisions of s 7C of the ACC Act on the grounds that the Authorisation and Determination and the Amendment are not "instruments", I consider that s 33(1) of the Act would permit the Board of the ACC to extend the original Authorisation and Determination "as the occasion requires", by making a new Authorisation and Determination having that effect howsoever the Board describes that new instrument. In so doing it would have to comply with the requirements of the Act for making a new special investigation determination. As I earlier indicated, there is no evidence before me to suggest the Board has not in fact done so in the present instance. And I do not consider that there is any contrary intention manifest in the Act that would preclude the s 7C powers from being exercised from time to time.

The Second issue: The Privilege against Self-Incrimination 39 In light of the decision of the Full Court in A v Boulton, I am obliged to conclude that "as a matter of necessary implication, the [ACC] Act abrogated any privilege against self-incrimination that the [applicant] might otherwise have had in an examination under the Act". It was within the legislative competence of the Commonwealth to do this: Barnes v Boulton. Accordingly I reject the applicant's claim that the privilege was not abrogated in respect of possible incrimination for a foreign offence. 40 This conclusion was not unanticipated by the applicant who has foreshadowed the possibility of a challenge to the correctness of, or else to the scope that ought properly to be given to, the decision in A's case. 41 There is one additional comment I should make about this matter. The manner in which the privilege has been held in A's case to have been abrogated relieves me of the need to consider whether the privilege could in any event have been claimed where the risk of incrimination arises under a foreign law. On that question, I would merely note the following. 42 This is not a case in which the risk of incrimination under a foreign law is claimed to be a factor of which account should be taken in determining whether a question should be answered or a document produced under a statutory regime which provides a "sufficient cause" or "just excuse" exception for not answering a question, or not producing the document: cf Bank of Valletta plc v National Crime Authority (1999) 165 ALR 60; Brannigan v Davison [1997] AC 238. 43 What is claimed here is the common law privilege as such and it is "rigid and absolute": Brannigan, at 249. Whether it extends to the risk of incrimination under foreign law has been the subject of conflicting judicial opinion and decision for many years now: see the general discussion of this in Brannigan v Davison at 247 ff; see also Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Co Ltd (No 4) [1985] 1 QdR 127; FF Seeley Nominees Pty Ltd v El AR Initiations (UK) Ltd (1990) 96 ALR 468. 44 While I refrain from expressing a concluded view on this controversy, I would not wish my failure to do so to be interpreted as providing implicit support for this claimed application of the privilege. Rather, in my respectful view, there is much force in the opinion expressed by Lord Nicholls of Birkenhead in Brannigan (at 249-250) that: "It is the unqualified nature of the right, so valuable as a protection for the witness, which gives rise to the problem when a foreign law element is present. If the privilege were applicable when the risk of prosecution is under the law of another country, the privilege would have the effect of according primacy to foreign law in all cases. Another country's decision on what conduct does or does not attract criminal or penal sanctions would rebound on the domestic court. The foreign law would override the domestic court's ability to conduct its proceedings in accordance with its own procedures and law. If an answer would tend to expose the witness to a real risk of prosecution under a foreign law then, whatever the nature of the activity proscribed by the foreign law, the witness would have an absolute right to refuse to answer the question, however important that answer might be for the purposes of the domestic court's proceedings. This surely cannot be right. Different countries have their own interests to pursue. At times national interests conflict. In its simple, absolute, unqualified form the privilege, established in a domestic law setting, cannot be extended to include foreign law without encroaching unacceptably upon the domestic country's legitimate interest in the conduct of its own judicial proceedings. Their Lordships respectfully agree with the views to this effect expressed in the Court of Appeal by Cooke P., Henry and Thomas JJ. Their Lordships' conclusion is that the common law privilege does not run where the criminal or penal sanctions arise under a foreign law."

CONCLUSION 45 I will order that the application be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Counsel for the Respondent: Mr A Southall QC with Dr S Donaghue

Solicitor for the Respondent: Australian Crime Commission