The decision in X
99 As in the present case, the applicant in X was served with a summons under the ACC Act requiring her to attend at an examination for the purpose of a special investigation into federally relevant criminal activity. The summons was, at the time it was served, accompanied by two instruments. The first was an instrument by which the Board authorised the ACC to investigate federally relevant criminal activity "until 31 May 2004" and determined that the investigation so authorised was a special investigation. Like the 2013 instrument in the present case, the instrument purported on its face to constitute both an authorisation made pursuant to s 7C(1)(c) and a determination made pursuant to s 7C(1)(d) and s 7C(3). It was referred to by Finn J as the Authorisation and Determination. The temporal limitation on the investigation appeared under the heading "Authorisation".
100 The second instrument purported to amend the Authorisation and Determination by deleting the words "until 31 May 2004" and inserting the words "until 31 May 2005". The amending instrument contained no statement to the effect that before making the amendment the Board had considered whether, for the purposes of s 7C(3) of the ACC Act as then in force, ordinary methods of police investigation were likely to be ineffective.
101 The applicant challenged the validity of the summons on two grounds relating to the amending instrument. First, she alleged that by making that instrument the Board had authorised a new investigation for a different period which, in turn, had to be determined to be a special investigation before the power to conduct an examination and to issue a summons at any time in the extended period could be triggered. As the Board had not (she alleged) complied with the requirements for making a determination under s 7C(3) before issuing the amending instrument, the summons was said to be invalid. Second, she alleged that a determination could not be amended by the exercise of the implied power under s 33(3) of the Acts Interpretation Act in any event because the use of the amendment power in that way would undercut or circumvent important safeguards in the ACC Act, including the condition in s 7C(3).
102 Finn J made the initial observation (at [19]) that:
. . . notwithstanding the variety of prescriptions in the ACC Act governing the making of a determination that an investigation is to be a special investigation, the ACC 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.
103 The ACC's investigative function, his Honour later said, "seems hardly one suited to performance by inflexible timetables" (at [36]).
104 His Honour said (at [23]) that the Authorisation and Determination established an investigation having a particular character, ie. that of a special investigation. His Honour continued:
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 paras 4(a) and (b) of the Authorisation and Determination for which the special investigation was authorised. This is what it did.
105 The critical question was whether the Board had the power to extend that investigation. After holding (at [27] - [29] and [30] - [32]) that the Authorisation and Determination was an "instrument" within the meaning of s 33(3) of the Acts Interpretation Act and that s 33(3) extended to powers to make instruments of an executive character, Finn J said (at [33] - [34]):
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 ACC 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.
106 Finn J held that the exercise of the implied amendment power involved no change to the reason for, or to the scope and purpose of, the investigation. It was, his Honour held (at [35]), the one and the same special investigation. It did not cease to bear the status of a special investigation merely because of its extended time frame and it was therefore unnecessary that the Board comply with the condition in s 7C(3) of the ACC Act when making the amending instrument. His Honour said (at [36] - [37]):
36. . . . 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 ACC Act.
107 All of that, in my opinion, formed a necessary part of Finn J's reasoning in determining the controversy in X and cannot be regarded as merely obiter. Moreover, I do not consider his Honour's construction of the ACC Act and its interplay with the Acts Interpretation Act to be plainly wrong. The application of the Acts Interpretation Act to the powers and functions conferred under s 7C of the ACC Act was subsequently confirmed by the Full Court in P.
108 The applicant contended not so much that X was wrongly decided, but that it was to be distinguished both factually and legally from the issues arising in the present case. For present purposes, there are three differences in the factual and legal context to be considered. First, the effect of the amending instrument in X was to extend the period of the investigation authorised by the original instrument by a period of one year, whereas the 2016 instrument in the present case removed or purported to remove a temporal limitation on the investigation such that it was authorised or purportedly authorised to continue indefinitely. Second, unlike the situation in X, the pre-conditions to the exercise of the substantive power in s 7C(3) changed between the making of the 2013 instrument and the making of the 2016 instrument. Third, the amending instrument in X did not contain a statement to the effect that the requirements of s 7C(3) of the ACC Act had been observed when the amending instrument was made, whereas the 2016 instrument does contain a statement to that effect.
109 It may be accepted that if the Board did not have a substantive power to authorise an investigation of indefinite duration or to determine such an investigation to be special, then no implied amendment power could be exercised to achieve that impermissible result. The issue is whether the differences between the present case and X are such that the conclusion reasoning of Finn J in that case should not be applied on this application.
110 A logical consequence of the decision in X is that the Board has the power to re-exercise its implied amendment power from time to time so as to extend the period of an investigation by a year, each year, in perpetuity. In that way, the duration of a special investigation may be extended, for practical purposes indefinitely, without compliance with the condition in s 7C(3), provided always that the amendment does not have the substantive effect of changing the investigation's reason, scope or purpose. Putting aside for a moment the amendments to s 7C(3), it would, as the respondents correctly submitted, be a surprising construction of the ACC Act if it permitted the Board to extend the period of an investigation from year to year indefinitely, but did not permit the Board to make a determination in relation to an investigation that may continue indefinitely unless and until revoked by the Board.
111 The submission that there exists an implied requirement to fix a date by which an investigation must end is difficult to reconcile against other authorities of this Court concerning the nature and scope of the powers of the Board and the ACC.
112 The Full Court in A1 held that the requirement that a referral under s 13 of the NCA Act give a general description of the circumstances or allegations constituting the relevant criminal activity did not include a requirement that the particular subject matter to be investigated be limited in time. Although the legal context in which A1 was decided is different, the remarks of the Full Court concerning the nature of powers of the Board and the ACC in my view apply equally to the questions of construction now under consideration here: compare LX at [30] (Besanko J); XCIV at [105] - [113] (Wigney J).
113 Von Doussa and Sundberg JJ observed that the investigations that may be authorised by the NCA were unlike those conducted by ordinary police forces and did not necessarily proceed from a discovered offence. Their Honours continued (at 289):
It is an investigative power which is under consideration, and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined.
114 As I have already mentioned, the NCA Act in force at that time empowered the NCA to refer for investigation "relevant criminal activity". That phrase was defined under s 4(1) of the NCA Act to mean "any circumstances implying, or any allegations, that a relevant offence may have been or may be being, committed". The definition of "relevant criminal activity" in the ACC Act as presently in force is more expansive. It includes any allegation that a relevant crime may in the future be committed.
115 Consistent with what was said in A1, this Court has repeatedly rejected the proposition that the Board can only authorise a special investigation into "specific and confined criminal activity": XX at [50] - [51] (Perry J); XCIV at [101] - [104] (Wigney J). In LX, Besanko J said (at [30]) that the following reasoning in A1 (at 294), applied with equal force to special investigations under the ACC Act:
The NCA should not be regarded as outside its charter so long as it bona fide seeks to establish a relevant connection between certain facts and the subject matter of the reference, and that connection is one that is reasonably capable of being related to the purpose for which the power is conferred.
116 Although that passage related to the scope of the authority of the NCA as an investigative body, rather than the scope of the authority of a Commonwealth Minister under the NCA Act to refer a matter to the NCA for investigation, Besanko J nonetheless applied the same reasoning in determining that the 2013 instrument (being the same instrument impugned in this case) was not impermissibly broad in its subject matter.
117 All of the above authorities support a conclusion that there is no necessarily implied requirement to fix an end date upon an investigation authorised under s 7(1)(c) and determined to be special under s 7(1)(d) and s 7C(3).
118 The implied requirement was nonetheless said by the applicant to arise because, among other things, the provisions of the statute providing for the oversight of the ACC and the Board would otherwise be circumvented or undermined.
119 As I have mentioned, the functions of the ACC include the provision of reports to the Board on the "outcomes" of a special investigation: ACC Act, s 7A(d). Whilst it is open to construe that function as one that could only be discharged at the end of a finite period of investigative activity, that narrow construction would not be consistent with the purposes of the ACC's investigative functions. The purpose is to gather criminal intelligence, being information that might assist the understanding, disruption and prevention of the kind of criminal activities to which the statute might lawfully extend: see X 7 at [72] and [144] (Hayne and Bell JJ) and the amendments to s 7C(3) introduced by the Amending Act. That, in my view, has been a purpose of the ACC Act as a whole, both before and after the coming into force of the Amending Act. The ACC Act is to be construed in a manner that best achieves that purpose or object, even if it is open to an alternative construction: s 15AA of the Acts Interpretation Act.
120 Once the purpose of the ACC's investigative function is understood in that way, the function of the ACC to report on the "outcomes" of investigations should be broadly understood as one that may be continually fulfilled during the course of an ongoing investigation. Outcomes in that sense are outcomes that may be continually arrived at in connection with wide, ongoing and ambulatory subject matter of the kind permissibly referred to in the 2013 instrument.
121 The Board's obligations under s 59 of the ACC Act should also be mentioned:
(3) Subject to subsection (5), the Chair of the Board or the CEO:
(a) shall, when requested by the Inter-Governmental Committee to furnish information to the Committee concerning a specific matter relating to an ACC operation/investigation that the ACC has conducted or is conducting, comply with the request; and
(b) shall when requested by the Inter-Governmental Committee to do so, and may at such other times as the Chair of the Board or the CEO thinks appropriate, inform the Committee concerning the general conduct of the operations of the ACC.
(4) Subject to subsection (5), the Chair of the Board shall furnish to the Inter-Governmental Committee, for transmission to the Governments represented on the Committee, a report of the findings of any special ACC operation/investigation conducted by the ACC.
122 The obligations in s 59(3) are not triggered by an investigation coming to an end. Moreover, I do not consider the word "findings" in s 59(4) to imply the existence of an obligation on the Board to fix an end date for an investigation. The obligation is one that is to be fulfilled as the occasion requires. The broad and ambulatory subject matter of the investigation lawfully authorised under the 2013 instrument is such that "findings" may be continuously arrived at and elaborated upon. Consistent with the purposes of an ACC investigation and the ACC Act as a whole, the word "findings" should not be construed so as to refer only to findings made at the end of a finite period.
123 Although the IGC has the power to revoke a determination within 30 days of it being made, that of itself would not lead to the conclusion that an investigation may only be authorised to continue for a fixed period: see s 7 of the ACC Act.
124 I do not accept that the imposition of a requirement of the kind contended for is necessarily to be implied by the oversight provisions to which I have referred, nor by any other provision referred to by the applicant as an oversight or safeguard provision.
125 It is then submitted that s 7C(3) of the ACC Act itself evinces an intention that a determination cannot be made in respect of an investigation of indeterminate length because it was not humanly possible to determine that ordinary police methods of police investigation into relevant criminal activity are not likely to be effective at understanding, disrupting or preventing such activity "forever". The submission assumes that the condition specified in s 7C(3) requires that the unlikelihood of effectiveness be considered to persist throughout the authorised period of the investigation.
126 In P the Full Court held (at [22]) that the applicant in that case had wrongly assumed that a time limit imposed on an investigation necessarily reflected the period during which the Board considered that ordinary police powers would not be effective for the purposes of s 7C(3) of the ACC Act. The respondents submit that it follows from what was said in that case that the Board is not required by s 7C(3) to consider that ordinary police methods will not be effective for the entire duration of an investigation. I agree.
127 If I am wrong in that regard, I would not consider it to be impossible to comply with the condition in s 7C(3) of the ACC Act in respect of an investigation of indeterminate length in any event. That is because the Board is not required to determine that ordinary police methods of investigation would forever be ineffective as a matter of certain and objective fact. It is required only to determine that ordinary police methods of investigation would be unlikely to be effective. A determination as to the unlikelihood of effectiveness may be arrived at by, for example, concluding that ordinary and ineffective police methods of investigation are unlikely at any time in the future to change in respect of the subject matter to be investigated. There is nothing impossible about that.
128 Accordingly, the Board's function under s 7C(1)(c) may be performed to authorise an ongoing investigation and its power under s 7C(3) may be exercised to determine such an investigation to be a special investigation.
129 Two questions remain to be considered: first, whether the power under s 33(3) of the Acts Interpretation Act may be exercised so as to delete from an instrument issued pursuant to s 7C(1)(c) a time limit previously imposed on an investigation and, second, whether the coming into force of the Amending Act between the original instrument and the amending instrument might affect the outcome in the present case.
130 The first question should be answered yes. I can discern no reason, as matter of construction, why the amendment power could not permissibly be used in that way. The implied amendment power is to be regarded as co-extensive with the principal power.
131 It is appropriate that I apply the same test formulated by Finn J in X to resolve the second question. Consistent with the approach in X, where an amendment varying the duration of an investigation does not change the reason for or scope or purpose of the investigation, the obligation to observe the condition in s 7C(3) will not arise: no new investigation will have been authorised and therefore no new determination pursuant to s 7C(3) (whether in its amended form or not ) would be required in respect of it.
132 In my view, nothing in the 2016 instrument changed the reason for, or the scope or purpose of, the investigation in the relevant sense. The 2016 instrument did not change the subject matter of the investigation as specified in Sch 1 to the 2013 instrument (as amended by and read together with the 2016 instrument). Nor did the 2016 instrument change the purposes of the investigation specified in cl 9. The criminal activities to which the instrument refers (identified in cl 8) remain unchanged. It is the same investigation and continues to bear the character of a special investigation as originally determined in the 2013 instrument. All that has occurred is that a temporal limit on the continuance of the same special investigation has been removed.
133 I should add that the additional words in s 7C(3) introduced by the Amending Act do not, of themselves, support the conclusion that the reason for or scope or purpose of the investigation has necessarily changed. The unchanged purposes of the investigation continue to coincide with the overarching objectives of the ACC Act itself, including the understanding, prevention and disruption of the criminal activities falling within its scope.
134 In the circumstances, no occasion arose, whether directly under s 7C(3) or by the application of s 33(3) of the Acts Interpretation Act for the Board to consider and determine the issue specified in s 7C(3).
135 The applicant then submits that a new determination was in fact made in any event, as evidenced by the terms of the 2016 instrument itself. I reject that submission. The words of the 2016 instrument equally suggest that the Board subjectively (but wrongly) considered itself to be bound by s 33(3) of the Acts Interpretation Act to observe the condition under s 7C(3) when making the amendment referred to in cl 4 of the 2016 instrument. In the preceding paragraphs I have been concerned to identify whether the Board was so bound by the ACC Act on its proper construction. I have determined that it was not. The terms of the 2016 instrument cannot be used as an aid to the construction of the ACC Act in that regard.
136 It is to be borne in mind that the Board is under no obligation to include on the face of an instrument issued pursuant to s 7C(3) a statement to the effect that it has complied with the conditions of its exercise: P at [22]. The Board's statement in the 2016 instrument that the investigation authorised by the instrument "remains" a special investigation was, in my view, one that was unnecessary to include. It does not, of itself, imbue the instrument with the character of a fresh determination so that an obligation to observe the condition under s 7C(3) was triggered (whether directly or by the operation of s 33(3) of the Acts Interpretation Act).
137 It follows from what I have said that the amended condition in s 7C(3) by the Amending Act did not apply to the making of the 2016 instrument. The amended provision would only apply in the event that the Board made, in substance, a new determination on or after the date that the amendment came into force. That the Amending Act does not apply in the circumstances does not mean that it has been impermissibly circumvented. It simply means that no occasion arises on the facts and the law for its application.
138 If I am wrong in determining that s 33(3) of the Acts Interpretation Act did not require the Board to comply with the condition in s 7C(3) of the ACC Act as amended, I would find that the Board did in any event comply with the condition. I would in that event have rejected the applicant's contention that the Board either did not or could not reasonably have considered and determined the requisite issues. The contentions were largely founded on the impossibility argument I have previously rejected.
139 I would have held further that there was no requirement that s 7C(4) be complied with in the exercise of the amendment power. The applicant's submissions in that regard ignored the requirement that the 2013 instrument and the 2016 instrument be read together.