XXVII v The Commonwealth of Australia

AND: THE COMMONWEALTH OF AUSTRALIA First Respondent

THE CHIEF EXECUTIVE OF THE AUSTRALIAN CRIME COMMISSION (AS REPRESENTATIVE OF THE BOARD OF THE AUSTRALIAN CRIME COMMISSION) Second Respondent

JUDGE: DOWSETT, WIGNEY AND BROMWICH JJ DATE OF ORDER: 13 APRIL 2018

1. the appeal be dismissed; and
2. the appellant pay the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GENERAL 1 I have read the reasons prepared by Wigney and Bromwich JJ. As Bromwich J has outlined the facts of the case, it is not necessary that I do so at length. His Honour has also set out the grounds of appeal. However in his written submissions, the appellant has adopted a somewhat different approach, identifying six "issues" and relating each to the grounds of appeal. Those issues are as follows: Issue 1 [appeal ground 1] Whether the learned Judge erred in finding that there was no requirement to "fix an end date upon the investigation authorised under s 7(1)(c) (sic) and determined to be special under s 7(1)(d) (sic) and s 7C(3)" and whether the learned Judge further erred in finding that the function of the Board of the Australian Crime Commission (the Board) under s 7C(1)(c) of the Australian Crime Commission Act 2002 (Cth) (the Act) may be performed to authorise a 'perpetual investigation'. Issue 2 [appeal grounds 2 and 4.3] Whether the learned Judge erred in failing to identify the relevant source of power by which the Board could extend an existing special investigation. Issue 3 [appeal ground 3] Whether the learned Judge erred in finding that there was no requirement for the Board to comply with the "like manner and subject to like conditions" requirements of section 33(3) of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), in making the 2016 Instrument. Issue 4 [appeal grounds 4.1, 4.2 and 4.4] Whether the learned Judge erred in finding that no occasion arose, whether directly under s 7C(3) of the Act, or by the application of s 33(3) of the Interpretation Act, for the Board when making the 2016 Instrument, to consider and determine the matters specified in s 7C(3) of the Act. Issue 5 [appeal ground 4.5] Whether the learned Judge erred in finding that the Board had, in any event, complied with the conditions in s 7C(3) of the Act. Issue 6 [appeal ground 5] Whether the learned Judge erred in rejecting that s 28(2) of the Act imposes a mandatory requirement - that the Summons be accompanied by the determination. 2 Issue 2 was not pressed (ts 31, ll 8-19). As I have come to the conclusion that the appeal should fail, it will be more convenient if I deal with the appellant's arguments in the way in which they are presented in the written outline. However, before doing so, I should say something about the legislative scheme.

the decision-making process 3 Section 7 of the Australian Crime Commission Act 2002 (Cth) (the "ACC Act") establishes the Australian Crime Commission (the "ACC"). It consists of a Chief Executive Officer (the "CEO"), examiners and staff members. Its functions are identified in s 7A. One such function is "to investigate, when authorised by the Board, matters relating to federally relevant criminal activity". Much turns on the meaning of the term "federally relevant criminal activity". I shall return to that matter. 4 Section 7B establishes the "Board of the ACC" (the "Board"). Sections 7B(2) and (3) provide: (2) The Board consists of the following members: (a) the Commissioner of the Australian Federal Police; (b) the Secretary of the Department; (c) the Comptroller‑General of Customs; (d) the Chairperson of the Australian Securities and Investments Commission; (e) the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979; (f) the Commissioner or head (however described) of the police force of each State and of the Northern Territory; (g) the Chief Police Officer of the Australian Capital Territory; (h) the CEO; (i) the Commissioner of Taxation. (3) The Commissioner of the Australian Federal Police is the Chair of the Board. 5 Section 7C(1) provides: (1) The Board has the following functions: (a) to determine national criminal intelligence priorities; (aa) to determine priorities in relation to national policing information systems and services; (b) to provide strategic direction to the ACC and to determine the priorities of the ACC; (c) to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity; (d) to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation; (e) to determine, in writing, the class or classes of persons to participate in such an operation or investigation; (f) to establish task forces; (g) to disseminate to law enforcement agencies or foreign law enforcement agencies, or to any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations, strategic criminal intelligence assessments provided to the Board by the ACC; (ga) to make recommendations to the Minister about expenditure from the National Policing Information Systems and Services Special Account; (gb) to make recommendations to the Minister about charges for national policing information services (including criminal history checks); (gc) to determine, in writing, policies and give directions to the CEO in relation to the following: (i) disclosing national policing information; (ii) approving a body as an accredited body; (gd) to determine, in writing, any conditions or restrictions in relation to providing nationally coordinated criminal history checks; (h) to report to the Inter‑Governmental Committee on the ACC's performance; (i) such other functions as are conferred on the Board by other provisions of this Act. ... 6 In connection with ss 7C(1)(c) and s 7C(1)(d), ss 7C(2), 7C(3), 7C(4) and 7C(5) provide: (2) The Board may determine, in writing, that an intelligence operation is a special operation. Before doing so, it must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation relates. ... (3) The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity. ... (4) A determination under subsection (2) or (3) must: (a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and (b) state that the relevant crime is, or the relevant 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. (5) The Chair of the Board must, within the period of 7 days beginning on the day a determination under subsection (2) or (3) is made, give a copy of the determination to the Inter‑Governmental Committee. 7 Section 7G regulates voting at Board meetings. Section 7G(1) provides that generally, a majority vote is required. However, s 7G(4) provides: The Board cannot determine that an intelligence operation is a special operation, or that an investigation into matters relating to federally relevant criminal activity is a special investigation, unless at least 9 Board members (including at least 2 eligible Commonwealth Board members) vote in favour of making the determination. 8 Although the CEO of the ACC is a Board member, he or she may not vote. See s 7G(3). 9 The Inter-Governmental Committee (the "IGC") is established by s 8(1) which provides: There is hereby established an Inter‑Governmental Committee consisting of: (a) a member to represent the Commonwealth, being the Commonwealth Minister; and (b) in the case of each participating State - a member to represent that State, being a Minister of the Crown of that State nominated by the Premier of that State. 10 It should be noted that pursuant to s 4, the word "State" includes the Australian Capital Territory and the Northern Territory. Section 9 provides as follows: (1) The Committee has the following functions: (a) to monitor generally the work of the ACC and the Board; (b) to oversee the strategic direction of the ACC and the Board; (c) to receive reports from the Board for transmission to the Governments represented on the Committee and to transmit those reports accordingly; (d) such other functions as are conferred on the Committee by other provisions of this Act. ... (2) Within the period of 30 days beginning on the day the Committee is given a copy of a determination (a special determination) under subsection 7C(2) or (3), the Committee may by resolution, with the agreement of the member of the Committee representing the Commonwealth and at least 5 other members of the Committee, request the Chair of the Board to give further information to the Committee in relation to the determination. (3) Subject to subsection (4), the Chair of the Board must comply with the request. (4) If the Chair of the Board considers that disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Chair must not give the Committee the information. (5) If the Chair of the Board does not give the Committee information on the ground that the Chair considers that disclosure of the information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Committee may refer the request to the Minister. (6) If the Committee refers the request to the Minister, the Minister: (a) must determine in writing whether disclosure of the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies; and (b) must provide copies of that determination to the Chair of the Board and the Committee; and (c) must not disclose his or her reasons for determining the question of whether the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies in the way stated in the determination. ... (7) Within the period of 30 days beginning on the day the Committee makes a request under subsection (2) in relation to a special determination, the Committee may by resolution, with the agreement of the member of the Committee representing the Commonwealth and at least 5 other members of the Committee, revoke the determination. (8) The Committee must notify the Chair of the Board and the CEO of the revocation. The revocation takes effect when the CEO is so notified. ... (9) To avoid doubt, the revoking of the determination does not affect the validity of any act done in connection with the ACC operation/investigation concerned before the CEO is so notified. ... (10) The Committee does not have a duty to consider whether to exercise the power under subsection (2) or (7) in respect of any special determination, whether the Committee is requested to do so by any person, or in any other circumstances. 11 Hence every special determination must be passed to the IGC, which committee may request further information concerning it. The IGC may then resolve to revoke the determination. 12 Sections 16 and 18 of the ACC Act are also of some relevance. Section 16 provides: If: (a) an intelligence operation is determined by the Board to be a special operation; or (b) an investigation into matters relating to federally relevant criminal activity is determined by the Board to be a special investigation; then, except in a proceeding instituted by the Attorney‑General of the Commonwealth or the Attorney‑General of a State, any act or thing done by the ACC because of that determination must not be challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made. 13 Were the section to be given its plain meaning, it would be difficult to see how the present proceedings could have any point. No action in the course of a special investigation could be challenged upon the basis that any determination had not been lawfully made. However the respondents seem not to have relied on s 16, either at first instance or on appeal. Such conduct is consistent with the approach adopted in P v Board of the Australian Crime Commission (2006) 151 FCR 114 at [25]-[26]. I proceed upon the basis that s 16 is not presently relevant. 14 Section 18 provides: (1) The Minister may, by notice in writing to the Board, give directions or furnish guidelines to the Board with respect to the performance of its functions and the Board shall comply with any such directions or guidelines. (2) However, the Minister must not, without the approval of a resolution passed at a meeting of the Inter‑Governmental Committee, being a resolution as to which all the members of the Committee present at the meeting have voted in favour, give any directions or furnish any guidelines to the Board under subsection (1) with respect to: (a) particular ACC operations/investigations; or (b) a matter related to national policing information systems and services (including expenditure from the National Policing Information Systems and Services Special Account). (4) Where the Minister gives a direction or furnishes a guideline to the Board under subsection (1), the Minister shall: (a) as soon as practicable after giving the direction or furnishing the guideline, cause a copy of the direction or guideline to be published in the Gazette; and (b) cause a copy of the direction or guideline to be laid before each House of the Parliament within 15 sitting days of that House after the copy is published in the Gazette. 15 Clearly, the Board comprises persons who are very experienced in the conduct of criminal and/or other investigations. I infer that most members are likely to be experienced in the operational control of investigations, prioritization of tasks, the other functions identified in s 7C(1) and in law enforcement generally. The Board is not actually part of the ACC. It seems likely that the Board members would bring a wide range of professional experience to their deliberations. One might also expect a degree of detachment from the ACC's operations. The IGC, in effect, supervises the work of the Board, particularly as concerns special investigations. It obviously operates at a very high political level.

nature of an investigation 16 The ACC Act consistently distinguishes between an intelligence operation and an investigation. Either may be determined to be "special". 17 The term "intelligence operation" is defined in s 4 as follows: ... an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity, but that may involve the investigation of matters relating to federally relevant criminal activity. 18 The term "investigation" is not specifically defined. It may be assumed that the word has its ordinary meaning. The New Shorter Oxford English Dictionary defines that meaning as: [t]he action or process of investigating; systematic examination; careful research ... . Any instance of this; a systematic enquiry; a careful study of a particular subject. 19 The verb "investigate" is defined, as a transitive verb, to mean: [s]earch or inquire into; examine into; examine a matter systematically or in detail, make an [official] inquiry into. 20 As an intransitive verb, the word is defined to mean "[m]ake a search or systematic inquiry". 21 Section 7C(1)(c) contemplates the Board authorizing the ACC to investigate "matters relating to federally relevant criminal activity". Where the words "investigate" and "investigation" are used in the relevant statutory provisions, it is in that context. 22 In the Explanatory Memorandum relating to the Australian Crime Commission Establishment Act 2002 (Cth) at p 10, it was asserted that in s 7C as subsequently enacted: The threshold test for intelligence operations is more restrictive than that applicable to investigations because of the broader scope of intelligence. 23 The same distinction seems to be reflected in ss 7C(2) and 7(3) in their present forms. An intelligence operation must be primarily directed towards the collection and dissemination of criminal information and intelligence "relating to federally relevant criminal activity", but may involve the investigation of matters relating to such activity. An investigation, on the other hand, must be into "matters relating to federally relevant criminal activity". A distinction is clearly drawn between criminal information and intelligence relating to federally relevant criminal activity and matters relating to such activity. 24 In order to identify the nature of an investigation for the purposes of s 7C, it is necessary that I examine the meaning of the term "federally relevant criminal activity". The term is defined in s 4 as follows: (a) a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or (b) a relevant criminal activity, where the relevant crime: (i) is an offence against a law of a State; and (ii) has a federal aspect. 25 The term "federal aspect" is defined in s 4A(2). The definition is quite complex and need not presently be addressed. The term "relevant criminal activity" is defined in s 4 as follows: ... any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory. 26 The term "relevant crime" is defined in s 4 as follows: (a) serious and organised crime; or (b) Indigenous violence or child abuse. ... 27 The term "serious and organised crime" is defined in s 4. Again, the definition is complex and not immediately relevant. 28 The real nub of these definitions is the term "relevant criminal activity". In order that there be an investigation there must be circumstances implying, or at least allegations that a relevant crime has been, is being, or may be committed. In other words any investigation will be into "matters" relating to relevant circumstances or allegations. It follows that the investigation will concern a crime which has been, is presently being, or may, in the future, be committed.

the effect of a determination 29 Where there has been a determination pursuant to s 7C(1)(d) and s 7C(3), a person may be examined pursuant to Div 2 of the Act. In such an examination, s 30 significantly limits the circumstances in which the person may decline to answer on the ground of self-incrimination. A determination also enables the issue of a search warrant under s 22 of the Act, and the imposition of travel restrictions upon a person summoned to appear for examination. See s 24.

Ordinary police methods of investigation 30 Pursuant to s 7C(3) the Board must consider whether: ordinary police methods of investigation, into the matters, are likely to be effective at, understanding, disrupting or preventing, the federally relevant criminal activity. 31 Such consideration is not as to the effectiveness of police methods generally, but as to ordinary police methods of investigation which would be available in investigating matters relating to the relevant criminal activity. 32 In X7 v Australian Crime Commission (2013) 248 CLR 92 at [146], Hayne and Bell JJ considered this legislation in an earlier form. It required that the Board consider whether ordinary police methods were "effective". Their Honours (Kiefel J, as her Honour then was, concurring) held that the word "effective" meant "effective to permit the laying of charges against offenders". Section 7C(3) was subsequently amended by the Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) (the "2015 Act"). See Sch 1 Pt 1 item 4. The word "effective" was deleted and replaced with the words "effective at understanding, disrupting or preventing the federally relevant criminal activity". In the Explanatory Memorandum, at p 41, the following explanation was offered: As with item 3, this item clarifies the meaning of the term 'effective' in relation to the ACC Board's decision to determine that an investigation is a special investigation. Under subsection 7C(3), the ACC Board may determine that an investigation is a special investigation. Issuing a determination that an investigation is a special investigation allows the ACC and its examiners to use their coercive powers, such as conducting examinations, to obtain information relevant to the special investigation. Current subsection 7C(3) requires the Board to consider, before making a decision, whether ordinary police methods of investigation into the matters are likely to be effective. However, the Act does not explain what 'effective' means in this circumstance. As with item 3, this amendment is necessary to more fully articulate the purposes for which the ACC and examiners exercise their coercive powers. The amendment is intended to explain that those powers are to be exercised in support of the ACC's broad role in understanding, disrupting or preventing serious and organised criminal activity. This item is intended to clarify that the word 'effective' in the context of subsection 7C(3) means more than 'effective to permit the laying of charges against offenders'. While the laying of charges may be one outcome of the special investigation, it is not the only one. A special investigation may seek to disrupt or prevent the criminal activity to which it relates in a number of ways, including by supporting confiscation or other civil proceedings, supporting administrative proceedings, or by recommending legislative, administrative or policy changes to prevent persons from engaging in the relevant criminal conduct. 33 Clearly, the amendment had the effect of identifying a much wider range of issues for the Board's consideration than that suggested by the majority in X7. In that case, the majority also concluded that under s 7C(3) in its previous form, the Board had not only to consider, but also to determine whether ordinary police methods would, or would not be likely to be effective. It seems that the Board must now determine the effectiveness of such methods for the wider range of purposes identified in s 7C(3) as amended. 34 Given the composition of the Board, I infer that the members bring to their consideration pursuant to s 7C(3), their knowledge and experience in law enforcement, and that they must make a judgment as to the effectiveness of ordinary police methods for the specified purposes. 35 The amendment came into effect on 28 July 2015, after the making of the 2013 instrument, and before the making of the 2016 instrument on 8 June 2016. Item 37(2) in Sch 1 Pt 1 provides: The amendments made by this Part of subsections 7C(2) and (3) of that Act apply in relation to determinations made under those subsections at or after the commencement of this Part. 36 There was a tendency to treat the functions identified in ss 7C(1)(c), 7C(1)(d) and 7C(3) in isolation from the Board's other functions. Clearly, however, such functions will necessarily be performed in conjunction with those other functions. In particular, the ACC's capacity to undertake and sustain a particular investigation might be affected by questions of priority and strategy, reflected in the availability of human and other resources.

a temporal element 37 In X v Australian Crime Commission (2004) 139 FCR 413 at [35]-[38] Finn J said: 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 ACC 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 ACC 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 ACC 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 Acts Interpretation 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 ACC 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 ACC Act that would preclude the s 7C powers from being exercised from time to time. 38 In P at [31] the Full Court said: The Act does not expressly authorise amendment of an authorisation or determination. However there is also no express power to place a time limit upon an investigation. One might readily infer, however, that the power of the Board to determine national criminal intelligence priorities and strategic direction necessarily implies a power to limit the extent of an investigation. It would otherwise be difficult to determine questions of priority and strategic direction. An implied power to impose a time limit implies a power to extend that time limit. Parliament would hardly have intended that an incomplete investigation should end simply because such a time limit had expired. In any event, it is accepted that s 33(3) of the Acts Interpretation Act 1901 (Cth) authorises repeal, rescission, revocation, amendment or variation to an authorisation or determination pursuant to s 7C. However, pursuant to s 33(3), such power is 'exercisable in the like manner and subject to the like conditions' as would be an exercise of the power itself. The thrust of the appellant's case is that the power to amend is subject to the requirements as to writing found in s 7C. The respondents accept that proposition. Of course, the power to amend a determination and the power to vary the duration of such an investigation may not be coterminous. However no such point was taken in this appeal. 39 Those cases establish that the Board may limit the period of its authorization of an investigation. In the 2013 instrument, at para 4, the Board did so. The effect of the 2016 instrument was to remove that limitation, so extending the period of the authorization indefinitely. Nothing in the relevant statutory provisions or the cases suggests an obligation to impose any temporal limitation. The appellant's submissions to the contrary elide the distinction between the authorization and the investigation authorized, in order to assert that the deletion of any time limitation in some way changes the reason, scope or purpose of the investigation, to adopt the language of Finn J in X. As I have sought to demonstrate, the ambit of any investigation is to be determined by reference to the relevant definitions. An investigation so defined may be the subject of an authorization. It does not follow that any change in the limit upon the period of such authorization changes the reason, scope or purpose of the investigation. 40 A temporal limitation is, in effect, a management tool. A particular investigation may have a degree of urgency which leads the Board to give it priority for a limited period. Alternatively, the Board might use such a limitation to establish a structure within which the investigation is to be conducted, and in which reports are to be provided to it. I see no justification for treating a management tool as an essential element of any authorization. These observations apply equally to all investigations, whether or not they have been determined to be special.

a determination under s 7c(3) 41 The appellant's submissions seem to assume that the Board must seek to identify all foreseeable advances in ordinary police methods, which advances may occur during the period of any authorization. There also is a suggestion that where such an advance is realized, the Board may have to revisit its earlier determination. With all respect, such an approach is unrealistic. Section 7C(3) requires the Board to exercise judgment with respect to ordinary police methods of investigating relevant "matters". The Board might well take into account possible future developments in such methods. However it is unlikely that Parliament intended that any investigation should be deferred pending the occurrence of such development. Nor is it likely that Parliament intended that the investigation should commence on one basis and, at some later stage, proceed on a different basis. Nothing in s 7C(3) suggests that the Board is to revisit any determination, once made.

issue 1 - IMPLIED OBLIGATION TO IMPOSE A Temporal LIMITATION 42 The appellant has made no real attempt to address the conditions for implying words into a statute as identified by the majority of the High Court in Taylor v The Owners - Strata Plan No. 11564 (2014) 253 CLR 531 at [22]-[25]. Nor has he advanced any other basis for finding that the Board was obliged to impose a temporal limitation upon its authorization. I accept that a temporal limitation may, in some circumstances be a useful, desirable or, occasionally, necessary tool for the Board to use in connection with an authorization, with or without a determination. However I see nothing in the ACC Act which suggests that the Board must impose such a limitation. 43 For the reasons which I have previously given, I do not accept that the very nature of a special investigation requires a discrete and exhaustive identification and consideration of possible future advances in police methods of investigation. The task involves a broader assessment of existing investigative methods and may involve consideration of possible future developments in that area. Nor do I accept that a variation in a temporal limitation upon an authorization changes the reason, scope or purpose of an investigation. Those matters may well remain constant, notwithstanding any such change. 44 The appellant fails on issue 1.

issue 2 - power TO EXTEND AN EXISTING SPECIAL INVESTIGATION 45 This issue was not pressed.

ISSUES 3, 4 AND 5 - ACTS INTERPRETATION ACT AND AMENDED S 7C(3) 46 Issues 3, 4 and 5 assert that: the 2016 instrument changed the reason, scope and purpose of the special investigation so that a new investigation was necessarily authorized; any determination made on, or after the commencement of the amendment to s 7C(3) had to be made pursuant to s 33 of the Acts Interpretation Act 1901 (Cth) (the "Acts Interpretation Act"); and the Board did not consider, or did not reasonably consider and determine the matter identified in s 7C(3), such task being "impossible", given the indefinite duration of the investigation after the making of the 2016 instrument. 47 Sections 33(1) and 33(3) of the Acts Interpretation Act provide: ... (1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. ... (3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) the power shall 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. 48 The primary Judge held that the Board was not obliged, when making the 2016 instrument, to consider the matters posed for consideration by s 7C(3) in its amended form. This conclusion was based primarily upon her Honour's finding that the original authorization remained in force, although amended, as did the original determination. 49 The appellant submits that the 2016 instrument established a new investigation because the nature and scope of the special investigation were changed by: the 2016 instrument which converted the finite limit upon the duration of the investigation into a "perpetual" investigation; and the amendment to s 7C(3) which imposed different obligations on the Board and others affected by the investigation, including, in the appellant's case, his obligations under the summons. 50 I do not understand the words "nature and scope" to mean anything other than is meant by the words "reason, scope and purpose", which words I have used throughout these reasons. 51 For reasons which I have given, I conclude that the 2016 instrument did not alter the reason, scope or purpose of the investigation, and that it did not establish a new investigation. It simply changed the period of authorization. Once it is accepted that the Board had power to remove the time limit imposed on its authorization, and that such removal did not change the reason, scope or purpose of the investigation, there is no basis for asserting that the 2016 instrument established a new investigation. Further, nothing in s 7C(3) suggests that any determination concerning an investigation, once made, should be revisited for any purpose. No doubt s 33(3) would provide a basis for doing so, but s 7C(3) imposed no requirement that the Board do so. 52 The appellant also submits that the amendment to s 7C(3), itself, amended the "statutory criteria" in the Act, imposing different obligations on the Board and on those affected by the investigation. The effect upon the appellant is said to be the extended period over which he may be examined pursuant to the summons. As I have demonstrated, the amendments to s 7C apply to determinations made at or after 28 July 2015. Hence those amendments, themselves, cannot affect the special investigation established by the 2013 instrument. Section 33(3) was engaged for the purpose of deleting the time limitation on the investigation, by way of amendment. However no further determination was necessary, and so s 33(3) was not engaged in that respect. 53 In conclusion, I adopt the primary Judge's view that a further determination was not necessary, given that the investigation was otherwise unchanged, and that s 7C(3) did not require that the Board revisit its earlier determination concerning the same investigation. 54 In view of these conclusions, it is not necessary that I consider the appellant's submission that the Board did not perform its function pursuant to s 7C(3) because, in the absence of a further time limit upon the length of the investigation, it was impossible for it to do so. However I shall make a few brief comments concerning that matter. 55 The appellant submits that it was impossible for the Board to be satisfied as to the ineffectiveness of ordinary police methods. Such "impossibility" was said to be attributable to the fact that the Board could not predict changes in ordinary police methods of investigation over the indefinite period of the investigation. Her Honour considered that the Board might, in performing its function, conclude that it was unlikely that such matters would change, "at any time in the future ... in respect of the subject matter to be investigated". 56 On appeal, the appellant submits that: ... given the indefinite duration afforded to the investigation in question, this effectively required the Board to predict that any changes in the subject matter of the special investigation, or its progress, under ordinary police methods in order to determine that they would always be ineffective. It is submitted that this was an impossible task for the board to have undertaken, and did not comply with the conditions in s 7C(3). 57 There may be an error of syntax in this submission, but its effect is clear enough: that it would be impossible for the Board to perform the function prescribed by s 7C(3), should it fail to impose a time limit upon its authorization of the investigation. This submission might suggest that the statutory provisions should not be construed as permitting the Board to authorize a special investigation indefinitely. That proposition would be a restatement of issue 1. I have rejected that submission. In those circumstances, as a matter of statutory construction, it cannot be said that it was impossible for the Board to fulfil its statutory function. To do so would be to fail to perform the Court's duty to ascertain Parliament's intention. It is rather a question of identifying the content of the function imposed upon the Board by s 7C(3) in its amended form. 58 I do not accept that s 7C(3) required a precise and conscious identification of all relevant ordinary police methods of investigation, and an assessment of the efficacy of each. Rather, the members of the Board were obliged to consider the needs of the investigation, having regard to their experience and training. To the extent that the members had knowledge of possible future developments, there is no reason to believe that they did not take them into account. However the future can never be certain. Nothing in the section suggests that the Board's decision must be based on a precise knowledge of future developments in investigative methods, whether over a 12 month period or an indefinite period. As I have said, the Board's task was evaluative. If the Board was obliged to apply the amended s 7C(3) to the proposed extension of the authorization, there is no reason to believe that it failed to perform that function. The appellant must fail on issues 3, 4 and 5.

issue 6 - section 28(2) 59 Section 28(2) of the ACC Act provides: A summons under subsection (1) requiring a person to appear before an examiner at an examination must 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. 60 Section 30(1) of the ACC Act provides: A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not: (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the examiner. 61 The summons and the 2013 instrument were served on the appellant on 29 February 2016 as required by s 28(2). These proceedings were commenced on 11 March 2016. The appellant attended pursuant to the summons, but the examination has subsequently been adjourned from time to time, pending the outcome of these proceedings. The 2016 instrument was made on 8 June 2016. According to the statement of claim, a copy of that instrument was provided to the appellant on 11 August 2016. The respondent admits that allegation. The appellant was not, at any time, provided with the summons, accompanied by a copy of the 2016 instrument. 62 The appellant's submissions at first instance, as outlined and dealt with by the primary Judge, appear to have been quite complex. On appeal, the appellant's case is straightforward. At paras 41-44 of his written submissions he submits: 41. The learned Judge at [141] to [153] failed to address the mandatory nature of the requirement imposed by s 28(2) of the Act that the summons be accompanied by the complete determination. The summons had to be accompanied by the 2016 Instrument either as a new determination relevant to that summons, or, alternatively, as an amendment to the 2013 Instrument as an ongoing determination. 42. The failure to do so meant that the Board's obligations under s 28(2) were not met. 43. The learned Judge analysed the meaning of s 28(2) by reference to s 30 of the Act to the exclusion of other relevant matters. These included the implications of the amendments to s 28 itself. The purpose of the requirements in s 28 is to give the person who is to be examined notice of the general nature of the matters in relation to which they are to be questioned, and to give notice that the Board has made a relevant determination. 44. By failing to attach the 2016 Instrument to the summons, or ensuring that it was accompanied by a valid determination, requisite notice was not given. The consequence is that the appellant cannot be lawfully examined under the summons that was issued. 63 Paragraph 44 highlights the difficulty which the appellant faces. It was impossible for the relevant examiner to serve the summons with the 2016 instrument, given that the latter was not made until after the summons was served. Further, when served, the summons was accompanied by the valid 2013 instrument. Implicitly, the appellant submits that the summons should have been served again, with the 2016 instrument. 64 The respondents submit that: section 28(2) describes the method for service of the summons, not documents created thereafter; the summons compels initial attendance, but subsequent attendance is compelled by s 30(1)(b); the submission that compliance with s 28(2) is mandatory says nothing about its requirements, and compliance is to be determined as a matter of substance, not form; the 2016 instrument did not change the reason, scope or purpose of the investigation, and so service of the summons with the 2013 instrument was sufficient compliance with s 28(2); and the 2013 instrument sufficiently advised the appellant of the basis for the summons and the matters to be addressed in the examination, and the 2016 instrument did not change these matters. 65 The appellant submitted in reply that: 2. If the Summons is invalid because the 2016 Amending Instrument was not attached, then the initial attendance by the Appellant was not required by the Summons and the Appellant's continued attendance can no longer be validly compelled by s 30(1)(b) (compare [38] of the Respondent's outline). 3. The Respondent at [39] cites Z v Australian Crime Commission (2010) 188 FCR 85 at [128] for the proposition that compliance with s 28(2) of the Act is determined as a matter of substance rather than form. That was a case where the only difference between the Board's actual determinations and the documents attached to the summons was the addition of "additional information [that] did not contradict, qualify, or lead to any confusion about any of the information contained in the remainder of each of the documents" (at (130]). Similarly, in Egglishaw v Australian Crime Commission (2010) 186 FCR 393 (also cited by the Respondent at [39]), the only missing information was a change to the classes of person who might participate in the investigation. 4. In the present case, as developed in the Appellant's outline, the absence of the 2016 Amending Instrument goes to substance rather than form. It fundamentally changes the scope of the investigation by purporting to authorise an indefinite investigation. The failure of the Summons to be accompanied by the 2016 Amending Instrument goes to the heart of the validity of the Summons. The Respondent's reliance on X (2004) 139 FCR 413 (at [40] of the Respondent's outline) is misplaced - there Finn J was addressing an extension of the period of an investigation rather than a removal of all time constraints on the investigation. Whilst it may be understandable that an extension of a time period, without more, might not constitute a change to the reason, scope or purpose of what was previously authorised and determined (at [37] of X), the removal of all time constraints, creating an investigation of indefinite duration, is qualitatively different in that the investigation can no longer be said to comprise the same reason, scope or purpose. 5. The first authority cited by the Respondent in footnote 31 (at [41] of the Respondent's outline), is cited for the proposition that the policy underlying s 28(2) is to enable the witness to ascertain, in a general way, the limits of the Examiner's authority to conduct an investigation, and specifically requires that those interested in or affected by the exercise of the coercive power are able, in a meaningful manner, to ascertain whether that power is being exercised lawfully: AI v National Crime Authority (1996) 67 FCR 464 at 480. 6. The attempt by the Respondent to distinguish between, on the one hand, the reason, scope and purpose of the investigation, and on the other hand, the duration of the investigation (at [41] of the Respondent's outline), does not grapple with the change from an investigation with a defined endpoint to one of indefinite investigation, and the effect this must have on the reason, scope and purpose of the investigation. 7. The subsequent provision of a copy of the 2016 Amending Instrument (at [41] of the Respondent's outline) does not cure the problem that it was not provided at the time of service of the Summons: s 28(2) is mandatory. The function of issuing a summons is a serious one and strict compliance with the statutory regime is necessary. 66 It is, perhaps, telling that the appellant did not respond to the first of the respondents' submissions. It is, in my view, by itself, conclusive against the appellant. 67 I propose to deal with this issue only upon the basis that there was no new investigation. It may well be that if there were a new investigation a new summons would have been necessary, served with both instruments. However, on my view of the matter, that situation did not arise. 68 There can be no doubt that when served, the summons was valid, and that the appellant was obliged to appear in answer to it. The question must therefore be whether the summons has expired by effluxion of time, or been discharged as a result of the 2016 instrument. As ss 24A(1) and 28(7) limit the examination to the purposes of the special investigation, it is reasonable to infer that the summons would lapse if the Board's authorization expired or was otherwise terminated. Once it is accepted that the Board was empowered to delete the time limitation contained in its authorization, it is difficult to see any basis upon which it could be said that the summons lapsed. The summons, itself, is not subject to any time limitation. It requires attendance by the appellant from day to day, until excused or released from further attendance. 69 Although the appellant asserts that service of the 2016 instrument was necessary in order that he be aware of the matters about which he was to be examined, those matters did not differ from those described in the 2013 instrument. In any event, he was given a copy of the 2016 instrument. 70 I see no basis for inferring that the summons is spent. Nor do I see any basis for asserting that the 2016 instrument in some way terminated it. The appellant must fail on issue 6. 71 The appellant fails on all issues. The appeal should be dismissed with costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

WIGNEY J: 72 The main issue raised by this appeal is whether the Board of the Australian Crime Commission can validly amend a special investigation pursuant to the Australian Crime Commission Act 2002 (Cth) by removing the specified end date of that investigation. A related or subsidiary issue concerns the ongoing validity of a summons that was served on the Appellant in pursuance of the special investigation prior to the purported amendment. 73 In 2013, the Board authorised the Commission to investigate matters relating to certain federally relevant criminal activity and determined that the investigation would be a special investigation pursuant to s 7C(1)(d) of the Act (the 2013 Instrument). That special investigation was authorised to continue until 30 June 2016. On 24 February 2016, a Commission examiner caused a Summons to be issued and served on the Appellant. The Summons compelled the Appellant to appear before the examiner on 15 March 2016 for the purpose of giving evidence. The Appellant appeared at the examination; however, the examination was adjourned. It has been adjourned on a number of subsequent occasions pending the resolution of this proceeding. 74 The present controversy largely arises because, on 8 June 2016, the Board determined to amend the 2013 Instrument by, amongst other things, deleting the date on which the special investigation was to conclude. The Board determined that the investigation, as amended, remained a special investigation (the 2016 Instrument). 75 Before the primary judge, the Appellant contended that the 2016 Instrument was invalid for a number of reasons. Those reasons, in general terms, mostly related to the fact that the investigation, as amended, had no fixed end date. The Appellant also contended that the Summons which had been served on him was invalid, either by reason of the invalidity of the 2016 Instrument, or because a copy of the 2016 Instrument did not accompany the Summons as was required, in his submission, by s 28(2) of the Act. The primary judge rejected all the Appellant's arguments and upheld the validity of the special investigation, as amended, as well as the Summons. The Appellant appealed that judgment. 76 I have read the separate reasons to be published by Dowsett J and Bromwich J. I agree with their Honours that the appeal should be dismissed. Subject to what follows, I also generally agree with their Honours' reasons. Given the detailed consideration of the facts, relevant statutory provisions and the rival contentions of the parties, my reasons can be brief. I will address the relevant grounds of appeal by reference to the six issues identified by the Appellant and referred to in the reasons of Dowsett J, noting that issue 2 was not pressed.

Issue 1: does a special investigation require a specified end date? 77 The question is whether, in determining, pursuant to s 7C(1)(d) of the Act, that an investigation is a special investigation, the Board must specify an end date of the special investigation. Contrary to the Appellant's contention, the short answer to that question is "no". 78 The issue is essentially one of construction of the relevant provisions of the Act, in particular, s 7C. The relevant provisions are set out in the reasons of both Dowsett J and Bromwich J. Plainly, nothing in the text of s 7C, or any other provision of the Act, expressly requires the Board to fix an end date when determining that an investigation is to be a special investigation. Nor is there a proper basis to imply any such requirement. Nothing in the text, context or apparent purpose of s 7C compels the contrary conclusion. 79 A special investigation must have some defined limits or boundaries. Those limits or boundaries are provided for in the definition of "special ACC operation/investigation" in s 4 of the Act, in the conferral of power on the Board by s 7C(3) to determine that an investigation is a special investigation, and in the requirement in s 7C(4) that the Board's determination describe, state or set out certain matters. 80 The s 4 definition of a special ACC investigation is "an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation". The power conferred on the Board by s 7C(3) is limited to determining that an investigation into "federally relevant criminal activity" is a special investigation. Section 7C(4) provides that the determination must describe the "general nature of the circumstances or allegations constituting the federally relevant criminal activity", state "that the relevant crime is, or the relevant 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" and "set out the purpose of the…investigation". It should also perhaps be noted that s 7C(6) specifies the time that a determination by the Board that an investigation is a special investigation takes effect: it takes effect immediately after it is made. There is no provision which specifies the time that a determination by the Board ceases to have effect. 81 It can readily be seen that the only relevant limit or boundary imposed by the s 4 definition and terms of ss 7C(3) and 7C(4) is that the special investigation must relate to federally relevant criminal activity. The Act contains detailed provisions defining the expression "federally relevant criminal activity". It is unnecessary to consider those provisions in detail. Suffice it to say that none of those provisions impose any temporal limit on federally relevant criminal activity. 82 The terms of the s 4 definition of a special investigation and ss 7C(3) and (4) must also be considered in the context of the broad statutory functions of both the Commission and the Board. Section 7A provides that the Commission's functions include, relevantly, to "investigate, when authorised by the Board, matters relating to federally relevant criminal activity" and to "provide reports to the Board on the outcomes of those…investigations: ss 7A(c) and (d). The functions of the Board include, relevantly, to "provide strategic direction to the ACC and to determine the priorities of the ACC", to "authorise, in writing, the ACC to …investigate matters relating to federally relevant criminal activity" and to "determine, in writing, whether such an…investigation is a special investigation": ss 7C(1)(b), (c) and (d). 83 The Act imposed only one express requirement on the Board in relation to the making of a determination that an investigation is to be a special investigation. At the time of the making of the 2013 Instrument, that requirement was that, before determining that an investigation was a special investigation, the Board was required to consider whether "ordinary police methods of investigation into the matters [were] likely to be effective". By the time the 2016 Instrument was made, s 7C(3) required the Board to consider whether "ordinary police methods of investigation into the matters [were] likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity". Either way, the requirement that the Board "consider" whether ordinary police methods were likely to be effective, meant that the Board was required to determine that ordinary police methods were not likely to be effective: X7 v Australian Crime Commission (2013) 248 CLR 92 at [146]. 84 The relevant context for the requirement in s 7C(3) is that, once an investigation is determined to be a special investigation, investigation powers are conferred on the Commission or its officers which plainly extend beyond "ordinary police methods". Most significantly, a Commission examiner may conduct an examination and summons persons to appear at an examination and give evidence: ss 24A and 28 of the Act. A person appearing at such an examination can be prosecuted for failing to answer a question that he or she is required to answer by the examiner: ss 30(2)(b) and (6) of the Act. 85 Nothing in the text of the relevant provisions, considered in context and having regard to the broad functions of the Commission and the Board under the Act, suggests that a special investigation must have a defined and specified end date. The text, context and purpose of these provisions leaves no room to imply such a requirement. 86 The Board may impose a time limit: P v Board of Australian Crime Commission (2006) 151 FCR 114 at [31]. There is, however, nothing to suggest that it is compelled to do so. It may well be the case that the nature, purpose and scope of some special investigations would make it prudent for the Board to impose a time limit, particularly given the Board's function to determine the priorities of the Commission. That may not, however, always be the case. In any event, the fact that it might in some cases be prudent for the Board to impose a time limit does not mean that it is compelled to do so in all cases. The nature, purpose and scope of some special investigations may be such that no time limit is required, let alone necessary or even prudent. 87 The Appellant's submissions that there was an implied requirement for the Board to fix a time limit focussed mainly on s 7C(3) and the contention that it would be impossible for the Board to determine that ordinary police methods were unlikely to be effective in the case of a "perpetual" or "indeterminate" special investigation. That submission has no merit for the reasons discussed in detail later in these reasons. Suffice it to say at this stage that there are at least some circumstances where it would plainly be open to the Board to determine that ordinary police methods were unlikely to be effective for the foreseeable life of a proposed special investigation, or for the foreseeable future, even if no definite end date for the investigation is specified in the determination. 88 It should be emphasised, in this context, that the fact that a determination by the Board does not specify an end date for a special investigation does not mean that the investigation will be perpetual, infinite or never-ending, as appeared to be contended by the Appellant. The Board may have reason to believe, from the purpose, nature and scope of the investigation, that it will have a limited life-span, even if no time limit is fixed. There is also no reason to suppose that the Commission would continue to conduct a special investigation if, for one reason or another, it ceased to be effective or necessary. That is particularly so given that the Act provides that the Board has an oversight function in respect of the Commission's activities. It is to be noted, in this context, that the 2016 Instrument required the Commission to report to the Board on the outcomes of the investigation on 30 June each year. 89 It follows that there is no basis for the Appellant's contention that the 2016 Instrument is invalid because it removed the end date for the relevant special investigation. The Board is not required to impose an end date or fixed period for a special investigation. The primary judge was correct to dismiss the Appellant's challenge to the validity of the special investigation on that basis.

Issues 3 and 4: the applicability of s 33(3) of the Acts Interpretation Act 1901 (Cth) 90 It is tolerably clear that the 2016 Instrument amended the 2013 Instrument, relevantly, by removing the end date of the investigation. It did not authorise an entirely new special investigation as the Appellant appeared to contend. 91 The Act does not confer on the Board an express power to amend a prior determination that an investigation is a special investigation. Section 33(3) of the Acts Interpretation Act 1901 (Cth), however, relevantly provides that where an Act confers a power to make an instrument, 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" to amend or vary any such instrument. 92 The question is whether, in making the 2016 Instrument, the Board was subject to, or obliged to comply with, the condition or requirement in s 7C(3) to determine that ordinary police methods were unlikely to be effective. In my opinion, the answer to that question is "yes". In that respect, I agree with Bromwich J and respectfully disagree with Dowsett J. 93 The divergent views in respect of this issue appear to hinge on the applicability of the "test" formulated by Finn J in X v Australian Crime Commission (2004) 139 FCR 413 (X v ACC) to the circumstances of this case. The test is said to be that s 33(3) of the Interpretation Act will only require the Board to comply with s 7C(3) when amending or varying a determination if the amendment changes the "reason, scope or purpose" of the original determination. Finn J held that an amendment which merely extended the time period of a special investigation by 12 months did not change the reason, scope or purpose of the special investigation and that, therefore, the Board was not required to comply with s 7C(3). 94 In this matter, the Appellant contended that the 2016 Instrument did change the scope of the special investigation and, accordingly, by reason of s 33(3) of the Interpretation Act, the Board was required to comply with s 7C(3). The Commission, on the other hand, contended that, as in X v ACC, the 2016 Instrument did not change the reason, scope or purpose of the special investigation and the Board was therefore not required to comply with s 7C(3). 95 It is not immediately apparent to me why the issue necessarily turns on whether the 2016 Instrument changed the reason, scope or purpose of the special investigation. Once it is accepted that the 2016 Instrument purported to amend the 2013 Instrument, and that the Act does not confer on the Board an express power to amend an existing instrument authorising a special investigation, it must follow that the Board's power to make the 2016 Instrument depended on the operation of s 33(3) of the Interpretation Act. In those circumstances, the Board's power to amend the 2013 Instrument was required to be exercised in the like manner and subject to the same conditions as the power to make the 2013 Instrument in the first place. It would follow that the Board was required to comply with s 7C(3). Section 33(3) does not say, in terms, that the power to amend in such circumstances need not be exercised in the like manner and subject to the like conditions if the amendment does not alter the reason, scope or purpose of the instrument being amended. 96 In any event, both parties appeared to proceed on the basis that the issue turned on whether the amendment effected by the 2016 Instrument - the removal of the end date of the special investigation - changed the reason, scope or purpose of the special investigation in the 2013 Instrument. In my opinion it did. 97 The effect of the 2016 Instrument was to extend or expand the range or operation of the special investigation. It changed the special investigation from one with a defined and confined period, to one which had no temporal limitation at all. Even if the amendment did not alter the general nature of the circumstances or allegations, or the purpose of the investigation, it plainly expanded its scope. It is immaterial that the Board may not have been required to impose a time limit in the first place. The fact is that it did. The amendment was far removed from the amendment considered in X v ACC, which simply extended the period of the investigation by 12 months. 98 It follows that, even accepting the applicability of the so-called "test" in X v ACC, the Board was required to comply with the condition or requirement in s 7C(3) when making the 2016 Instrument. In my view, the primary judge erred in concluding otherwise. That error, however, has no direct bearing on the outcome of the appeal. The s 33(3) Interpretation Act issue is only relevant insofar as it brings into play the Appellant's contention that the Board failed to comply with s 7C(3) of the Act.

Issue 5: did the Board comply with s 7C(3) when making the 2016 Instrument? 99 The 2016 Instrument stated, in terms, that the Board considered whether ordinary police methods of investigation into the specified criminal activity were likely to be effective and determined that they were not likely to be effective. There is no basis for concluding that the Board did not make that determination. 100 The Appellant's case rested on the proposition that it was impossible for the Board to have arrived at that determination given the indefinite duration of the investigation. It was, in the Appellant's submission, impossible for the Board to determine that ordinary police methods would always be ineffective given that the investigation, and perhaps the nature of ordinary police methods, was likely to change over time. The Appellant's arguments amounted, in effect, to a contention that the Board's determination that ordinary police methods were unlikely to be ineffective was legally unreasonable: cf. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 101 Whichever way the Appellant's arguments are framed, they have no merit. It cannot be concluded that the Board's determination that ordinary police methods of investigation into the specified criminal activity was impossible or legally unreasonable. That is so for a number of reasons. 102 First, the fact that the result of the amendment effected by the 2016 Instrument was that the special investigation had no definite end date does not mean that the investigation was, or was likely to be, perpetual, infinite or never-ending, as was effectively contended by the Appellant. It was open to the Board to consider the s 7C(3) question on the basis of its view as to the likely duration of the special investigation, given the specified nature of the circumstances or allegations constituting the federally relevant criminal activity and the specified purpose of the investigation. 103 Second, it was open to the Board to consider that ordinary police methods were unlikely to materially change during the likely period of the special investigation, or at least during the foreseeable future. For example, it would have been open to the Board to consider and determine that, given the nature of the relevant circumstances or allegations, and the purpose of the investigation, it was imperative that the Commission be able to conduct compulsory examinations under Division 2 of Part II of the Act. That investigatory power is relevantly only available for special investigations. Ordinary police methods of investigation do not generally include the power to conduct such compulsory examinations. It would also have been open to the Board to consider that ordinary police methods of investigation were unlikely to include compulsory examinations of the sort provided for in the Act for the likely duration of the investigation, or in the foreseeable future. In those circumstances, it would have been neither impossible, nor unreasonable, for the Board to have formed the view that ordinary police methods of investigation into the specified criminal activity were unlikely to be effective, despite the fact that the special investigation did not have any specified end date. 104 Third, the Appellant's submissions tended to proceed on the basis that the effect of s 7C(3) was that the Board was required to determine that ordinary police methods would not be effective. The requirement, however, is only that the Board determine that ordinary police methods were unlikely to be effective. 105 The Appellant bore the onus of proving that the Board did not comply with s 7C(3). That was no mean feat given that the 2016 Instrument, on its face, indicated that the Board had made the required determination. The Board gave no reasons for the determination. Nor was it required to do so. The Appellant did not lead, or point to, any evidence capable of proving that the Board did not comply with s 7C(3). It relied instead on the bald assertion that any such determination by the Board was impossible or unreasonable by reason of the indefinite duration of the special investigation. That assertion has no merit for the reasons just given. It follows that the Appellant did not discharge its onus. 106 The primary judge was accordingly correct to reject the Appellant's challenge to the validity of the 2016 Instrument based on the Board's alleged non-compliance with s 7C(3) of the Act.

Issue 6: the Summons and s 28(2) of the Act 107 The Appellant's case that the Summons was invalid, or that s 28(2) of the Act had not been complied with, may be dealt with in short terms. 108 Section 28(2) requires that a summons issued and served under s 28 must be accompanied by a copy of the Board's determination that the investigation is a special investigation. When the Summons was served on the Appellant, it was accompanied by the 2013 Instrument. The Appellant was also subsequently supplied with a copy of the 2016 Instrument. That instrument, of course, had not been made at the time the Summons was first issued and served. The Appellant's contention that s 28(2) had not been complied with was put in a number of different ways. None of them were easy to understand. All of them were pedantic in the extreme. None of them have any merit. 109 The Summons was validly served on the Appellant in February 2016 because it was accompanied by the 2013 Instrument. The 2013 Instrument was the operative determination by the Board at the time. The Summons compelled the Appellant's initial appearance before the examiner on 15 March 2016. The Appellant was not released from further attendance by the examiner. His further attendance was, and is, accordingly compelled by s 30(1)(b) of the Act, not by the Summons. Section 30(1)(b) provides that a person who has been served with a summons, must not fail to attend as required by the summons and, more significantly for present purposes, must not "fail to attend from day to day unless excused, or released from further attendance, by the examiner". 110 Had the special investigation not been extended beyond 30 June 2016, it could fairly be said that the Appellant would not, or could not, have been required to attend the adjourned examination. That is because there would no longer have been an operative special investigation pursuant to which the Appellant could be examined. 111 As has been found, however, the special investigation was validly extended by the 2016 Instrument. It was unnecessary, in those circumstances, for a new summons to be issued and served. That would only have been necessary if the 2016 Instrument gave rise to a new special investigation, as opposed to an extension of the original investigation. If it had been necessary to issue and serve a new summons, it would then have been necessary for the new summons to be accompanied by a copy of both the 2013 Instrument and the 2016 Instrument. 112 Section 28(2) also did not, in the circumstances, require the existing Summons to be re-served together with a copy of both the 2013 Instrument and the 2016 Instrument. As events transpired, the Appellant was served with a copy of the 2016 Instrument, though it is doubtful that service of the 2016 Instrument was required by s 28(2). 113 The upshot is that s 28(2) of the Act was complied with. The Appellant's further attendance for examination is required by virtue of s 30(1)(b) of the Act and by reason that the relevant special investigation has been validly extended. There is no reason or basis to conclude that the Summons was or is invalid, or that the Appellant has for some other reason been discharged from further attendance at the examination. 114 The primary judge was correct to reject the Appellant's contentions concerning the validity of the Summons and non-compliance with s 28(2) of the Act.

Conclusion and Disposition 115 The appropriate order is that the appeal be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

INTRODUCTION 116 This is an appeal from orders made by a judge of this Court on 29 March 2017. Her Honour dismissed the appellant's application for judicial review under s 39B of the Judiciary Act 1903 (Cth) and ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). I agree with Dowsett J and with Wigney J that the appeal should be dismissed. I also agree with their Honours' reasons as to why appeal grounds 1 and 5 should fail (ground 2 not having been pressed). In relation to grounds 3 and 4, I prefer to express somewhat different reasons. While ground 3 should succeed, it is a pyrrhic victory for the appellant because it has no bearing on the result and cannot result in the appeal being upheld. My reasons for concluding that ground 4 should fail flow from the conclusion reached in relation to ground 3. 117 In the proceeding at first instance, the appellant challenged the validity of a summons dated 24 February 2016 that required him to appear before an examiner of the Australian Crime Commission (ACC) to give evidence for the purposes of a "special investigation". That challenge relevantly encompassed various assertions as to the validity of two instruments made by the Board of the ACC under ss 7C(1)(c), 7C(1)(d) and 7C(3) of the Australian Crime Commission Act 2002 (Cth) (ACC Act). The two instruments were: (1) the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No. 2) 2013 (the 2013 instrument); and (2) the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No. 2) Amendment No.1 of 2016 (the 2016 instrument). 118 The 2013 instrument authorised an investigation of just under three years' duration. It also recorded the separate determination of the Board that the investigation was to be a "special investigation", which made available to the ACC coercive powers under the ACC Act, and thereby the power to issue the summons addressed to the appellant. 119 The 2016 instrument relevantly amended the 2013 instrument by removing any express limit on the duration of the investigation that had been authorised and determining that the extended investigation would continue to be a special investigation for that unlimited period of time. 120 At first instance, the appellant contended that the summons that was served on him was invalid by reason of the invalidity of the 2013 instrument. He further contended that the 2016 instrument was invalid and that the summons was therefore "spent" as at 30 June 2016. The basis for that second contention was that, in the absence of a valid extension of the underlying special investigation, there could be no legal consequences of a failure to appear before the examiner. Those challenges were rejected by the primary judge. 121 The appellant did not maintain as a ground of appeal his contention below that the 2013 instrument was invalid. Rather, the appellant's case principally focused attention on whether the 2016 instrument had validly extended the special investigation determination so as to permit the continued use of coercive powers by the ACC. In particular, the appellant asserted that it was impermissible for the Board to have purported to determine that the authorised investigation, as extended, would bear the status of a "special investigation" for its indefinite duration. To this end, the appellant's challenge raised the following key questions: (1) First, whether, in making the 2016 instrument, the Board was required to make, as it did, a fresh determination that the "indefinite" investigation as authorised would continue to be a special investigation. The primary judge found that this step was unnecessary, considering that it was sufficient for the Board to simply remove the end date specified in the 2013 instrument. This was on the basis that the previous determination remained operative. (2) Secondly, if a new determination was required, whether the Board's second purported determination was validly made. The primary judge found in the alternative that if this step had, in fact, been required, it had been validly performed by the Board. 122 The respondents defended the primary judge's conclusions. 123 For the reasons that follow, question (1) above should be resolved in favour of the appellant, but question (2) should be resolved in favour of the respondents. While the Board was required to make a new special investigation determination, it in fact carried out that step. The appellant did not establish that the Board failed to observe the conditions on the exercise of that power, and the 2016 instrument should therefore be found to be valid. Accordingly, the appeal should fail as none of the remaining grounds of appeal have been made good for the reasons given by Dowsett J and by Wigney J.

The parties 124 By regulation, the ACC may also be known known as the Australian Criminal Intelligence Commission (ACIC), following a legislative extension of its functions. It now generally operates as the ACIC, but can continue to be referred to as the ACC, including for the purposes of these proceedings. The first respondent before the primary judge and on appeal is the Commonwealth of Australia, which was joined below by reason that the ACC was an agency or instrumentality of the Crown. The second respondent before the primary judge and on appeal is the Chief Executive Officer (CEO) of the ACC as representative of the Board of the ACC. The third respondent was the examiner of the ACC, appointed under s 46B(1), who had issued the relevant summons.

The Board and its functions as relevant to this case 125 The ACC was established by s 7(1) of the ACC Act. As provided by s 7(2), it relevantly consists of a CEO, examiners, and members of staff. That may also extend to consultants and others whose services are made available under s 49. Its functions include investigating, when authorised by the Board, matters relating to defined "federally relevant criminal activity" and providing reports to the Board on the outcomes of its investigations: see s 7A(c) and (d). 126 The Board was established by s 7B. It is a body of individuals separate from the ACC. Its composition is dictated by s 7B(2), which provides: The Board consists of the following members: (a) the Commissioner of the Australian Federal Police; (b) the Secretary of the Department; (c) the Comptroller-General of Customs; (d) the Chairperson of the Australian Securities and Investments Commission; (e) the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979; (f) the Commissioner or head (however described) of the police force of each State and of the Northern Territory; (g) the Chief Police Officer of the Australian Capital Territory; (h) the CEO; (i) the Commissioner of Taxation. 127 The functions of the Board, set out in s 7C(1), relevantly include: … (c) to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity; (d) to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation; … 128 As observed by the primary judge at [14], the Board's functions under each of paragraphs (c) and (d) of s 7C(1) are discrete, in the sense that they are separate and distinct. This means that where an investigation by the ACC has been authorised, it is only by the separate determination of the Board under s 7C(1)(d) (and also s 7C(3)) that the status of a "special investigation" is conferred. There is nothing to indicate that the Board's functions under paragraphs (c) and (d) of s 7C(1), along with s 7C(3), cannot be exercised within the same instrument, but it is clear that only an authorised investigation can be determined to be a special investigation. 129 The separate determination that an authorised investigation be a special investigation triggers certain coercive powers exercisable by the ACC, including powers relating to search warrants (s 22), the power to issue a summons and take evidence at an examination (s 28) and the power to conduct an examination on oath or affirmation (s 24A, supported by other provisions in Part II, Division 2). The summons power is supported by a range of criminal sanctions, such as sanctions for disclosing the existence of the summons or related information if a notation on the summons forbids that happening (ss 29A and 29B), for failing to attend or to answer questions (s 30), or for giving false or misleading answers (s 33). 130 Relevantly, the Board's function under s 7C(1)(d) to determine that an investigation is a special investigation is supported by an express power to make such a determination under ss 7C(1)(d) and (3). The latter provision provides as follows (emphasis added): Special investigations (3) The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity. 131 The emphasised words in s 7C(3) reproduced above were inserted by the Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth), which came into force on 28 July 2015. That amendment commenced after the making of the 2013 instrument and before the making of the 2016 instrument. 132 In relation to the meaning of s 7C(3) as in force prior to the 2015 amendment, the primary judge reproduced the observations of Hayne and Bell JJ (Kiefel J, as her Honour then was, agreeing) in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 that: 146. … Although s 7C(3) provides that a "special investigation" cannot be undertaken without the Board of the ACC first considering "whether ordinary police methods of investigation into the matters are likely to be effective", it must be read as requiring the Board of the ACC not only to consider this question, but also to determine that ordinary police methods are not "likely to be effective". In the context of the ACC Act, "effective" can and must be understood as meaning "effective to permit the laying of charges against offenders". The word "effective" cannot and should not be read, in the context of the ACC Act generally, or in the particular context of s 7C(3), as embracing any larger task of deciding whether individual criminal guilt is demonstrated. It is only by the engagement of judicial power consequent upon the laying of a charge that individual criminal guilt will be determined. 147. The ACC may therefore execute its function of investigating matters relating to federally relevant criminal activity by using the extraordinary processes of compulsory examination only when the Board of the ACC has determined that ordinary police methods are not "likely to be effective" to lead to the laying of charges. 133 The decision in X7 was delivered on 26 June 2013, just over two months before the date of the 2013 instrument on 4 September 2013. As X7 was specifically concerned with the ACC's powers in the context of a challenge to a summons issued by an examiner of the ACC, it can readily be inferred that the Board was at least made aware of the substance of the High Court's decision at the time that the 2013 instrument was signed by the Commissioner of the Australian Federal Police in his capacity as Chair of the Board. 134 Following the amendment to s 7C(3), the legislative condition for the determination of a special investigation was changed. Under the amended condition, the consideration required of the Board is no longer confined to the question of whether ordinary police methods of investigation would be likely to be "effective to permit the laying of charges against offenders", in accordance with the High Court's interpretation of the provision in X7. Rather, it has been extended to a much broader, disjunctive test, requiring consideration of whether such methods will be likely to be "effective at understanding, disrupting or preventing the federally relevant criminal activity". 135 Section 7C(4) of the ACC Act also imposes certain requirements upon the Board in relation to the content of a determination made pursuant to s 7C(3), providing: A determination under subsection (2) or (3) must: (a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and (b) state that the relevant crime is, or the relevant 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. 136 The above provisions make repeated reference to "federally relevant criminal activity". That term was and is defined in s 4(1) of the ACC Act as follows: federally relevant criminal activity means: (a) a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or (b) a relevant criminal activity, where the relevant crime: (i) is an offence against a law of a State; and (ii) has a federal aspect. 137 That definition makes reference in turn to the expression "relevant criminal activity", which is defined in s 4(1) as follows: relevant criminal activity means any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.

Summons for examination by the ACC 138 Pursuant to s 24A(1) of the ACC Act, an examiner of the ACC may conduct an examination for the purposes of a special investigation. In aid of the examination power, pursuant to s 28(1) of the ACC Act, an examiner may summon a person to appear at an examination to give evidence and/or to produce any document or other things referred to in the summons. A summons may be issued even if the person has been, or is about to be, charged with a criminal offence if the examiner is satisfied that it is reasonably necessary for the special investigation: s 28(1)(d). 139 The summons must 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: s 28(2). As previously observed, the powers conferred under s 28 to summon witnesses and take evidence are not exercisable except for the purposes of a special ACC operation/investigation: s 28(7).

The key events 140 The key events relevant to these proceedings can be summarised as follows: (1) On 4 September 2013, by way of the 2013 instrument, the Board authorised an investigation into certain federal criminal activity until 30 June 2016 and determined that the investigation was a special investigation. (2) On 28 July 2015, the relevant amendments to the ACC Act, as introduced by the Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth), came into force. (3) On 29 February 2016, the appellant was served with the summons in question, which required him to appear before the examiner, the third respondent. (4) On 11 March 2016, the appellant filed an originating application seeking judicial review of the summons and the 2013 instrument. (5) On 15 March 2016, the appellant attended before the examiner and the examination was subsequently adjourned from time to time pending the outcome of the proceedings. (6) On 8 June 2016, by way of the 2016 instrument, the Board of the ACC purported to amend the 2013 instrument by removal of the end date of 30 June 2016, and to determine that the investigation would continue to be a special investigation. (7) On 28 September 2016, the matter was heard by the primary judge over a single day, with the parties' cases concluded in supplementary written submissions after the hearing. The proceedings encompassed challenges to the summons, the 2013 instrument and the 2016 instrument. (8) On 29 March 2017, the primary judge dismissed the appellant's application for judicial review.

The 2013 instrument 141 The 2013 instrument, the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No. 2) 2013, is dated 4 September 2013. Relevantly, part of clause 3 and clauses 4 to 6 of the instrument provide: 3 Definition In this Instrument: … highest risk criminal targets (HRCTs) means entities, including those entities identified within the (classified) National Criminal Target List (NCTL), which an authorised ACC officer has reasonable grounds for suspecting: (a) may be engaged in specified criminal activity of one or more jurisdiction; (b) may have a high level of intent and ability to commit specified criminal activity; and (c) may have one or more of the following attributes: (i) a high degree of resilience to disruption by law enforcement; (ii) a thorough understanding of law enforcement methodology and its limitations and employ counter-strategies; (ii) access to law enforcement or regulatory information; (iv) a willingness and capacity to corrupt officials; (v) a willingness and capacity to pervert the course of justice through the intimidation of witnesses and officials and the use of violence; … specified criminal activity means the federally relevant criminal activity described in Schedule 1. 4 Authorisation Pursuant to paragraph 7C(1)(c) and subsection 7A(c) of the Act, the Board authorises the ACC to investigate specified criminal activity until 30 June 2016. 5 Reporting In accordance with paragraph 7C(1)(b) and subsection 7A(d) of the Act, the Board requests that the ACC provide a report to the Board on the outcomes of this investigation at or before the first Board meeting after 30 June 2016. 6 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 specified criminal activity are likely to be effective; (b) determines that ordinary police methods of investigation into specified criminal activity are not likely to be effective; and (c) determines that the investigation authorised by this instrument is a special investigation. 7 Description of general nature of the circumstances or allegations The general nature of the circumstances or allegations constituting specified criminal activity are set out in Schedule 1. 142 As observed by the primary judge, the 2013 instrument constituted both an authorisation for the purposes of s 7C(1)(c), and a determination for the purposes of s 7C(1)(d) and s 7C(3) of the ACC Act. No point was taken that this was not permissible. 143 As reproduced above, clause 3 of the 2013 instrument defines "specified criminal activity" as the "federally relevant criminal activity" described in Schedule 1 to that instrument, which gives particulars of the relevant activity under three clauses: (1) The first clause specifies that the matters to be investigated are the federally relevant criminal activity that was committed before the commencement of the instrument, or was in the process of being committed on the commencement of the instrument, or may in future be committed. (2) The second clause identifies the general nature of the circumstances constituting the federally relevant criminal activity, adverting to information available to the ACC and other law enforcement agencies that indicates, inter alia, that the investigation targets ("highest risk criminal targets", defined in the body of the instrument) are responsible for a significant proportion of serious and organised crime, are typically involved in the trade of illicit commodities such as drugs and other firearms, and are resilient to traditional law enforcement investigations. (3) The third clause sets out the general nature of the allegations constituting federally relevant criminal activity, listing a wide range of past, present and future offences. That list includes serious drug offences, firearm trafficking, violent offences, tax evasion, money laundering, theft, identity crime and criminal associations and organisation offences. The third clause also lists a number of "connected offences", including corporations offences, financial transaction offences and State and Territory offences. Some of those offences were repealed over a decade ago, however, no point was made about this. 144 The terms of Schedule 1 are of some importance in this case. They constitute a wide range of investigation subject matter that the Board determined that "ordinary police methods of investigation into specified criminal activity are not likely to be effective" in addressing.

The summons 145 The summons was issued on 24 February 2016 and served on the appellant on 29 February 2016. It was relevantly expressed as follows (emphasis in original): I, an Examiner duly appointed under section 468 of the Australian Crime Commission Act 2002 (the Act), pursuant to subsection 28(1) of the Act, for the purposes of the special ACC investigation being conducted by the Australian Crime Commission (ACC) under the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013 (the Determination): 1. being satisfied that it is reasonable in all the circumstances to do so; 2. being satisfied that it is reasonably necessary for the purposes of the special ACC investigation even though you have been charged with a relevant offence; 3. having recorded in writing the reasons for being so satisfied at 2.44 pm on 24th February 2016; 4. summon you: (a) to appear at 10:00 am on Tuesday, 15th March 2016 before an Examiner at an examination at the Australian Crime Commission, Floor 11, East, Commonwealth Centre, 55 Currie St, ADELAIDE and from day to day unless excused or released from further attendance; (b) to give evidence in relation to matters of the following general nature, being matters that are relevant to federally relevant criminal activity, and that may include the following: i) serious drug offences contrary to Part 9.1 of the Criminal Code Act 1995 (Cth) (Criminal Code); ii) Dealing with money or property contrary to sections 400.3, 400.4, 400.5, 400.6(1), 400.6(2), or 400.7(1) of the Criminal Code; and iii) Other unlawful activities that are related to or connected with these activities, and that involve relevant offences against a law of a State that have a federal aspect. 146 The summons was also accompanied by the 2013 instrument, being both the authorisation of the investigation and the determination of the Board that the investigation was a special investigation, as required by s 28(2) of the ACC Act.

The 2016 instrument 147 The 2016 instrument, the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No. 2) Amendment No.1 of 2016, was made by the Board on 8 June 2016. Clause 3 of that instrument contained the operative provisions, which were as follows: Amendment of Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013 The Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013 made by the ACC Board on 4 September 2013 is amended as follows- Paragraph 4 delete 'until 30 June 2016'. Paragraph 5 after '30 June 2016' insert 'and 30 June each year thereafter'. After paragraph 6(c) insert: On 8 June 2016, the Board before making the amendment to paragraph 4: (i) considered whether ordinary police methods of investigation into the specified criminal activity are likely to be effective at understanding, disrupting or preventing the specified criminal activity; (ii) determined that ordinary police methods of investigation into the specified criminal activity are not likely to be effective at understanding, disrupting or preventing the specified criminal activity; and (iii) determines that the investigation authorised by this instrument, as amended, remains a special investigation.

The combined effect of the 2013 instrument and the 2016 instrument 148 The following representation of the authorisation, reporting request, and determination of the Board reflects the relevant terms of the 2013 instrument as they would read in light of the amendments introduced by the 2016 instrument: 4 Authorisation Pursuant to paragraph 7C(1)(c) and subsection 7A(c) of the Act, the Board authorises the ACC to investigate specified criminal activity. 5 Reporting In accordance with paragraph 7C(1)(b) and subsection 7A(d) of the Act, the Board requests that the ACC provide a report to the Board on the outcomes of this investigation at or before the first Board meeting after 30 June 2016 and 30 June each year thereafter. 6 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 specified criminal activity are likely to be effective; (b) determines that ordinary police methods of investigation into specified criminal activity are not likely to be effective; and (c) determines that the investigation authorised by this instrument is a special investigation.

Before the primary judge 149 It was submitted before the primary judge that the ACC Act, on its proper construction, did not empower the Board to authorise an investigation of indefinite or perpetual duration or otherwise to determine such an investigation to be "special". As there was no principal power to make such an authorisation or determination, it was said that the amendment power under s 33(3) of the Acts Interpretation Act 1901 (Cth) could not be exercised to achieve that result. 150 In rejecting the appellant's contention, the primary judge relied on a number of authorities. First, and most significantly, her Honour considered the reasoning of Finn J in X v Australian Crime Commission [2004] FCA 1475; 139 FCR 413 (X v ACC). In that case, the applicant for judicial review had been served with a summons under the ACC Act that was accompanied by two instruments. The first instrument was an authorisation and determination to the effect that there was to be a special investigation into certain criminal activity "until 31 May 2004". The second instrument purported to amend the prior instrument 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. This contrasts with the express reference in the 2016 instrument to the Board having determined that the extended investigation would continue to be a special investigation. 151 The applicant in X v ACC contended that the amending instrument was invalid by reason that the Board had failed to make a further determination under ss 7C(1)(d) and 7C(3) that the investigation was a special investigation. Finn J considered that the critical question arising was whether the Board had the power to extend the extant investigation, having regard to the requirement in s 33(3) of the Acts Interpretation Act that the amendment power made express by that provision could only be exercised "in the like manner and subject to the like conditions". At [35], his Honour concluded that the s 33(3) requirements were not engaged because the exercise of the amendment power involved no change to the reason for, or to the scope and purpose of, the investigation. Critically, his Honour concluded that it was one and the same special investigation, and did not cease to bear the status of a special investigation merely because of its (limited) extended time frame. His Honour said: 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 ACC 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 ACC Act. 152 Finn J in X v ACC also made several observations, endorsed by the primary judge, to the effect that the ACC Act does not impose any time limitations on the duration of special investigations. As reproduced above, at [36], his Honour considered that the ACC's investigative function "seems hardly one suited to performance by inflexible timetables". Earlier, at [19], his Honour in X v ACC observed 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. 153 Critically, the primary judge did not accept the appellant's contention that X v ACC could be distinguished both factually and legally from the issues in this case. At [110], her Honour considered that: 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. 154 The primary judge further observed that 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, referring to A1 v National Crime Authority (1996) 67 FCR 464; LX v Commonwealth [2016] FCA 441; 338 ALR 667; and XCIV v Australian Crime Commission [2015] FCA 586; 234 FCR 274. 155 At [117] and [124], the primary judge expressed the view that there was no necessarily implied requirement to fix an end date upon an investigation authorised under s 7C(1)(c) and determined to be special under s 7C(1)(d) and s 7C(3). That conclusion was correct. 156 Further, the primary judge considered that there was no requirement for the Board to comply with the like manner and like conditions requirements of s 33(3) of the Acts Interpretation Act in making the 2016 instrument. In reaching that conclusion, her Honour applied the test formulated by Finn J in X v ACC, considered above. Relevantly, her Honour considered whether the amendment changed the "reason for or scope or purpose of the investigation", and concluded that no such change had been occasioned, stating at [132]: … 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. 157 For the above reasoning to be correct, it necessarily depends upon the proposition that the scope of this investigation could not be changed only by a change in its duration. That is, it entails a conclusion that duration can never be any aspect of the scope of an investigation. 158 At [133], the primary judge also considered that the additional words in s 7C(3) that were introduced by legislative amendment did not, of themselves, support the conclusion that the reason for, or scope or purpose of, the investigation had necessarily changed. Her Honour considered that the unchanged purposes of the investigation continued to coincide with the overarching objectives of the ACC Act. 159 The primary judge then addressed the submission that the Board had, in any event, made a new determination, as evidenced by the terms of the 2016 instrument itself. Her Honour observed that the terms of the instrument suggested 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. In this regard, her Honour noted that the Board was under no obligation to include, on the face of the instrument issued pursuant to s 7C(3), a statement to the effect that it had complied with the conditions of its exercise, citing P v Board of Australian Crime Commission [2006] FCAFC 54; 151 FCR 114 (P v ACC) at [22]. 160 For those reasons, the primary judge considered that the condition in s 7C(3), as amended in the interim, did not apply to the making of the 2016 instrument. Rather, 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. 161 The primary judge considered that even if her Honour was wrong about the requirement to comply with s 7C(3), she would have held that the Board had complied with that condition. In reaching that conclusion, her Honour addressed the appellant's submission that the Board could not properly have made a determination under s 7C(3) in respect of an investigation of indefinite length. Her Honour stated: 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 [v ACC] 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. 162 The primary judge also said, at [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.

The grounds of appeal and issues raised 163 The appellant relied upon the following grounds of appeal (ground 2 not being pressed): 1. The learned Judge erred at [117] in finding that there was no implied requirement to "fix an end date upon an investigation authorised under s 7C(1)(c) and determined to be special under s 7C(1)(d) and s 7C(3)." 1.1 The learned judge further erred at [128] in finding that the Board's function under s 7C(1)(c) may be performed to authorise an ongoing investigation. … 3. The learned Judge erred at [135] in finding that there was no requirement for the Board to comply with the "like manner and subject to like conditions" requirements of section 33(3) of the Interpretation Act in making the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) Amendment No 1 of the 2016 (the 2016 instrument). 3.1 The learned trial Judge erred at [132] in finding that the 2016 Instrument did not change the reason, scope or purpose of the investigation in the relevant sense. 3.2 The learned trial Judge erred at [133] in finding that the additional words in s 7C(3) introduced by the Law Enforcement Legislation Amendment (Powers) Act 2015 (the Amending Act) did not support the conclusion that the reason for or scope or purpose of the investigation has necessarily changed. 4. The learned Judge: 4.1 Erred at [134] in finding that no occasion arose whether directly under s 7C(3) or by the application of s 33(3) of the Interpretation Act for the Board of the Australian Crime Commission in making the 2016 Instrument to consider and determine the matters specified in s 7C(3) of the Act. 4.2 Erred to the extent that the learned Judge held in the alternative at [136] and [137] that section 33(3) of the Interpretation Act was a relevant source of power by which the Board could extend an existing special investigation, but that the amendments to section 7C(3) only applied to "new determinations". Such an approach was contrary to the terms of the transitional provisions contained in clause 37(2) of the Amending Act. 4.3 Further erred in failing to address the contention that by reason of the amendments introduced by the Amending Act effecting an amendment to section 7C(3) a contrary intention had been expressed pursuant to section 2 of the Interpretation Act such that the section 33(3) power was not available. 4.4 Further erred at [137] in finding that the terms of s 7C(3) introduced by the Amending Act did not apply to the making of the 2016 instrument. 4.5 Further erred at [138] in finding that the Board had in any event complied with the conditions in s 7C(3) of the Act. 5. The learned Judge at paragraphs [141] to [153] failed to address the mandatory nature of the requirement imposed by section 28(2) of the Act that the Summons be accompanied by the determination. 5.1 The learned Judge erred in analysing the meaning of section 28(2) by reference to section 30 of the Act to the exclusion of other relevant matters. 5.2 Further, the learned Judge failed to consider the authorities upon which the Appellant relied in support of the contention that the requirement imposed by section 28(2) was mandatory. 164 For the reasons given by Dowsett J and by Wigney J, grounds 1 and 5 must fail. Each of grounds 3 and 4 challenge the validity of the 2016 instrument and warrant further consideration. 165 The critical issues advanced in the appellant's case may be addressed by considering grounds 3 and 4.5 (and, in the process, addressing the substance of grounds 4.1 to 4.4). As Dowsett J has pointed out, the appellant's case was advanced by reference to issues said to be raised by the above grounds of appeal. Key among those issues are those arising from grounds 3 and 4.5, described in the appellant's submissions as issues 3 and 5 as follows: Issue 3 [appeal ground 3] Whether the learned Judge erred in finding that there was no requirement for the Board to comply with the "like manner and subject to like conditions" requirements of section 33(3) of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), in making the 2016 Instrument. Issue 5 [appeal ground 4.5] Whether the learned Judge erred in finding that the Board had, in any event, complied with the conditions in s 7C(3) of the [ACC] Act. 166 Before turning to those grounds and issues, however, it is convenient first to address the question of the characterisation to be given to the investigation in light of the amendments that were made by the Board.

Characterisation to be given to the amended investigation 167 Much of the appellant's case was based upon an assumption that, in the absence of an express time limit, the investigation as amended is of "indefinite" duration. That characterisation appears to have been accepted by the primary judge, albeit that her Honour did not perceive any difficulty with such an investigation being approved by the Board. 168 The respondents submitted that, contrary to the appellant's argument, removing an express time limit does not mean that the investigation is "indefinite", "infinite" or "perpetual". Rather, it was submitted that the scope of the investigation remains bounded by the activities and purposes specified in the 2013 instrument. The respondents further emphasised that the Board can bring the special investigation to an end whenever it chooses. 169 The respondents' argument goes too far. In light of the removal of the end date specified in the 2013 instrument, the duration of the extended investigation was not, on its face, confined in any meaningful way, even if the Board must have hand in mind some general, but indeterminate, duration as a matter of resource allocation. While the investigation remained bounded in terms of subject matter by the parameters specified in the 2013 instrument, that subject matter imposed no readily apparent restriction on the investigation's duration on its face. That is particularly so having regard to the breadth of the circumstances and allegations outlined in the schedule to the 2013 instrument, to which the 2016 instrument related. 170 The term "indefinite" is therefore apt to describe the scope of the investigation in terms of its duration, reflecting the absence of any express temporal limit. The terms "perpetual" or "infinite" are less apposite because both suggest that some positive decision has been made that the investigation should continue forever, as opposed to no particular end date having been stipulated for an investigation that is nonetheless logically finite. The fact that an investigation without any stated end date can nonetheless be terminated at any time does not change its status as being of "indefinite" duration, unless and until such a curtailment takes place.

Ground 3 171 Ground 3 asserts that the primary judge erred in concluding that the Board was under no obligation when making the 2016 instrument to comply with the requirement in s 33(3) of the Acts Interpretation Act to exercise the amendment power "in the like manner and subject to the like conditions". 172 Section 33(3) of the Acts Interpretation Act provides: Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall 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. 173 The substance of the appellant's argument under this ground is that removal of the end date for the special investigation entailed such a change to the underlying investigation that the Board was, in effect, making a new authorisation and determination by its 2016 amendment. In those circumstances, it was submitted that the Board was required to observe the conditions on the exercise of those powers, as is expressly dictated by s 33 of the Acts Interpretation Act. It should be noted that the requirement to observe those conditions is only material to the "special investigation" determination, because the authorisation of an investigation by the Board is not subject to any express conditions. 174 The effect of the Board having removed the investigation's end date may be considered by asking whether the amendment changed the "reason for, scope or purpose" of the investigation. That was the question formulated by Finn J in X v ACC and applied by the primary judge. 175 On this point, several of the primary judge's observations about the nature of the amendment may readily be accepted. The 2016 instrument did not change the subject matter of the investigation as specified in Schedule 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 clause 9. The criminal activities to which the 2013 instrument refers (identified in clause 8) remained unchanged. 176 The primary judge, however, then observed that "all that has occurred is that a temporal limit on the continuance of the same special investigation has been removed". For this reason, her Honour considered that the special investigation determination in the 2013 instrument continued to be operative. Her Honour found that the Board had therefore wrongly considered itself bound to make a new special investigation determination, as is recorded in the 2016 instrument. With respect, those conclusions cannot be accepted in the particular circumstances of this case. 177 The primary judge relied upon the result in X v ACC to arrive at the conclusion that no change had been occasioned to the reason for, or scope or purpose of, the special investigation in this case. In X v ACC, Finn J considered an amendment made to an instrument of the Board of the ACC that had authorised and determined a special investigation to be fixed for a duration of just over a year. Relevantly, the Board extended the duration of the authorised investigation for a further year by amendment, but did not make a fresh determination under s 7C(3) that the investigation as extended would also continue to be a special investigation. In part of [35], reproduced in full above at [151], his Honour observed as follows (emphasis added): 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. … 178 The passage from X v ACC reproduced in bold in the preceding paragraph requires further consideration in order to apply it to the present case. The effect of [35] to [37] in X v ACC is that Finn J found that while the power to amend or vary in s 33(3) was available to the Board to extend the duration of the investigation in that case, the exercise of that power was not subject to the conditions of the original exercise of the power because the change being made was not sufficiently substantial. His Honour was concerned that if the application of the amendment power in s 33(3) to the original power in s 7C(1)(d) (and s 7C(3)) was qualified by always being subject to observing the original conditions for the exercise of that power, no matter how slight the amendment or variation, that would "amount to a form of word play divorced from practical reality". His Honour therefore described the threshold at which an amendment or variation of a special investigation determination was insufficient to require the original conditions to apply as being one that did not change the reason for, scope or purpose of the investigation. The application of this test or measure for when the exercise of the amendment power subject to applying the conditions for the original exercise of the power simply makes s 33(3) of the Acts Interpretation Act more workable in its application to ss 7C(1)(d) and 7C(3) of the ACC Act. It permits minor amendments or variations of a special investigation determination to take place without observing the original conditions, but still requires the original conditions to be observed for changes that are more substantial. By that approach, the safeguard in s 7C(3) is required to be applied by taking those mandatory considerations into account when it really needs to be because of the significance of the change or variation taking place. 179 Finn J in X v ACC was careful to confine his Honour's conclusion and, especially, his Honour's assessment of the threshold of whether there was a sufficient change to require the original conditions to apply to the amendment or variation being made, to the case at hand. His Honour said that he did not wish to be taken as suggesting that in no circumstances would the safeguards not have to be complied with if an amendment was to be validly made. If the amendment were to change the reason, scope or purpose of what was previously authorised and determined, that amendment would need to be exercised "in the like manner and subject to the like conditions". This is because the amendment would in substance constitute a new exercise of those powers, but by way of variation or amendment, rather than by a wholly new determination. 180 Finn J's observations in X v ACC should not be applied without due regard to the factual context of that case. It should be emphasised that his Honour was considering an amendment that purported to extend the duration of the underlying investigation for a finite and relatively short period. His Honour is not to be understood as saying that a change in the duration of an investigation cannot ever change its scope, but, rather, that no such change in scope had been occasioned on the facts of that case. In particular, his Honour said at [36], reproduced above at [151], that it was a form of word play divorced from practical reality to suggest that "every such extension" of time involved the establishment of a new investigation, leaving open the possibility that in some circumstances an extension of time may entail establishing, in substance, a new investigation to which the mandatory consideration in s 7C(3) would apply. His Honour did not go so far as to say that an extension of time could never change the scope of an investigation, let alone that a change from a limited duration to unlimited duration was not material in the sense of being sufficient to engage the like conditions requirement in s 33(3) of the Acts Interpretation Act. 181 A change to the duration of any given investigation may or may not affect its scope, depending on what the other parameters are and the extent of the change in the duration. Finn J's conclusion in X v ACC was that merely extending the duration of the 12-month investigation under consideration in that case by a further 12 months did not change its scope. That did not entail his Honour making any finding of wider application that a change in the duration of an investigation is incapable of changing its scope, whether that be by reason of its impact on the other terms of the investigation, or the extent of the change in the duration, or some combination of the two. It is not a question to be answered as a matter of abstract principle, but rather by reference to the terms of the investigation under consideration. 182 The distinct question that arises in the present case is whether an amendment that does not merely extend the duration of a special investigation for a finite period, but rather removes any time limit at all, can have the effect of changing the scope of what was previously authorised and determined. The question is not one that can be readily answered in absolute terms. It is a matter of context and degree. And it is not a question that is answered in this case by the findings that were made in X v ACC as to the 12-month extension of the duration of the investigation in that case. 183 It is instructive at this point to have regard to the operation of s 7C(3). The power to determine that an investigation be a special investigation is subject to an express mandatory consideration in the second sentence of that provision. In the context of the powers that a special investigation determination allows the ACC to use, the Board is, in substance, required to have regard to whether the use of such powers is really necessary, or whether ordinary police methods of investigation will suffice. 184 Having regard to the coercive powers that are made available by the determination of a special investigation, the legislature's insistence on the Board having regard to the mandatory consideration in s 7C(3) may be seen as an important safeguard. It reflects a concern to maintain a balance between encroachment upon individual rights and the interests of effective law enforcement. As part of that balance, the interests of law enforcement are only to be given primacy when the Board is satisfied that it is relevantly necessary in accordance with the conditions in the second sentence of s 7C(3). The obligation on the Board to consider the terms of that safeguard, and the content of that obligation, should therefore be strictly enforced: see George v Rockett (1990) 170 CLR 104 at 110.3; Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177 at [22]. However, it is a matter for the legislature to determine what the content of the safeguard should be at any given point in time, including changes that may make what is required to be taken into account more or less stringent. 185 Moreover, if there is ambiguity as to whether or not the s 7C(3) safeguard is required to be considered by the Board at all, that ambiguity should be resolved in favour of it applying. Not least, that is because, among the coercive powers that the determination of a special investigation permits the ACC to use, the examination power may be exercised in a way that overrides the privilege against self-incrimination, potentially even in circumstances where a witness summoned to attend an examination has been charged with a criminal offence and could be asked questions about the charged conduct, albeit that there would be limitations on the use or derivative use of the information thereby obtained: see ss 28(1)(d) and 30 of the ACC Act. Such a safeguard should be interpreted and applied having regard to the well-established authority that is applied to legislation that may have a material effect on such fundamental common law rights: see Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4 at [45]; Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v Western Australia (1990) 171 CLR 1 at 17-18; Coco v The Queen (1994) 179 CLR 427 at 437; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 at [11]; and Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [171]-[173]. 186 Turning to the Board's amendments in the present case, it cannot be accepted, with respect, that the 2016 instrument did not change the scope of the underlying investigation. Clause 4 of the 2016 instrument amended the 2013 instrument by removing the end date of 30 June 2016 and therefore creating, on its face, an investigation of indefinite duration. When the text of the 2013 instrument is considered in light of that amendment, without more, it would contain a determination that the investigation authorised is a special investigation that is also of indefinite duration. On its face, the amendment allowed the ACC to use coercive powers for so long as the investigation continued, but with an annual reporting requirement in place of reporting only at the end of the investigation, so as to give that additional oversight. The Board must be taken to have considered whether such a determination was really necessary, and determined that it was, that being the substance of the safeguard consideration made mandatory in the second sentence of s 7C(3). 187 Put simply, it is one matter for the Board to determine that a given authorised investigation of 3 years' duration is to be a special investigation. It may be a very different matter for the Board to determine that the same investigation in content, but without any stipulated end date, is to be a special investigation. It must therefore be accepted that a significant change to the duration of a special investigation is capable of constituting a change in its scope, thereby engaging the requirement in s 33(3) of the Acts Interpretation Act to observe the conditions attaching to the exercise of the determination power when considering an amendment or variation. Of course, the materiality of any change in duration, including the removal or absence of any stipulated duration, will also depend on the ambit of the reasons for, scope (apart from duration) and stated purpose of the investigation. 188 In the present case, the removal of the end date specified for an investigation that was already very wide-ranging was a material change in its scope because of that very breadth. As such, it constituted not only a further exercise of the power in s 7C(1)(c) to authorise the ongoing investigation, but also a further exercise of the power in s 7C(1)(d) and in the first sentence of s 7C(3) to determine that the investigation was a "special investigation". That is so notwithstanding that the 2016 instrument is required to be read with the 2013 instrument to give the former content, an approach that has long-standing approval by the Full Court in P v ACC at [34]-[38]. The 2016 instrument, read with the 2013 instrument, was capable of being characterised as a new, separate and valid exercise of the power to authorise an investigation and the power to determine that it be a special investigation. 189 The above reasoning is not to be taken as casting any doubt on the correctness of the decision by Finn J in X v ACC. Rather, it points to the dangers in applying comments made by a judge of a factual or evaluative nature to materially different circumstances. When careful attention is paid to what his Honour was saying, and to the context in which it was being said, X v ACC is not authority for any sweeping proposition that a change in the duration of an investigation cannot change its scope, paying particular heed to his Honour use of the phrase "every such extension" in [36] to suggest that some changes in duration may constitute a change in scope. It was entirely open to his Honour to find that the addition of an extra year to the particular investigation in that case, that was originally only just over a year in duration, did not for that reason alone amount to a change in its scope, there being no suggestion of any change to the reason for, or purpose of, the investigation. 190 It follows that the further exercise of both the power to authorise an investigation and the power to determine that it be a special investigation was permitted under s 33(3) of the Acts Interpretation Act, albeit that each power was to be exercised "in the like manner and subject to the like conditions (if any)". As noted previously, there was no such condition on the exercise of the s 7C(1)(c) power to authorise an investigation. However, the power in s 7C(1)(d) and in the first sentence of s 7C(3) to determine that such an investigation be a special investigation was conditioned upon the Board taking into account the consideration stipulated in the second sentence of s 7C(3). 191 Part of the appellant's case under this ground was an assertion that the Board was required to observe the conditions under s 7C(3) as in force at the time of the making of the 2016 instrument. That is, the Board was said to have been required to have observed the provision in light of the different test introduced by the Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth). That submission should be accepted for the following reasons. 192 It is true that consideration of s 7C(3) in its new form does not meet precisely the requirement in s 33(3) of the Acts Interpretation Act that the determination power be exercised in the "like manner" and "subject to the like conditions" that governed the 2013 instrument. However, to make the amendment power subject to the amended condition rather than the original condition is a necessary and appropriate way to harmonise the operation of s 7C(1)(d) and s 7C(3) of the ACC Act with the terms of s 33(3) of the Acts Interpretation Act. A legislative change to the content of the safeguard could otherwise be set at nought by an amendment or variation of substance which ignores the change to new terms of the condition, and worse, as in this case, does so for an indefinite period of time. The legislature should not be found to have permitted its will to be sidestepped in that way in relation to s 7C(3), whether that be to make the mandatory consideration more, or less, stringent. Of course, that does not mean that s 33(3) of the Acts Interpretation Act is always to be read in this way when a condition attaching to a power has changed. In other circumstances there may be very good reasons for an original condition to continue to apply. But that is not the present case. 193 For these reasons, the Board was therefore quite correct to take into account the mandatory consideration in the amended version of s 7C(3) in determining that the investigation to be authorised without a stipulated end date was to continue to be a special investigation. It follows that while her Honour erred in finding that there was no requirement for the Board to consider the matters in s 7C(3), that made no difference because the Board in fact took the step that was erroneously found by the primary judge to be unnecessary, albeit that a question remains as to whether that step was validly performed. 194 The above reasoning leads to the conclusion that the legislature has conditioned the availability of ACC's coercive powers on the Board's lawful satisfaction and determination that ordinary police methods were not likely to be effective (X7 at [146]): (1) "to permit the laying of charges against offenders" in relation to the 2013 instrument (following that interpretation of the former version of s 7C(3) in X7); or (2) "at understanding, disrupting or preventing the federally relevant criminal activity" in relation to the 2016 instrument (following the amendments to s 7C(3) after X7). 195 It is important to make clear that it is not for this Court to have any say in the decision that is ultimately made by the Board as to whether or not a special investigation determination is necessary for the ACC's investigative purposes. Rather, the Court's role is only to ensure that the decision is validly made, subject to the considerations mandated by the ACC Act. The appellant's success in relation to ground 3 does not enable the appeal to succeed in rendering the 2016 instrument invalid.

Ground 4.5 196 This ground of appeal asserted error by the primary judge in finding, in the alternative, that the Board had, in any event, validly determined that the authorised investigation as amended would remain a special investigation for its extended and indefinite duration. Addressing this ground also addressed grounds 4.1 to 4.4. 197 The 2016 instrument made the following material amendments or variations to the 2013 instrument: (1) it removed the end date of 30 June 2016 for the previously authorised investigation, effectively authorising that investigation, on its face, to continue indefinitely, although not in terms or in the form of a fresh authorisation; (2) it varied the request to report to the Board on the outcomes of the investigation - in lieu of that taking place at or before the first Board meeting after 30 June 2016, the ACC was to provide its report at or before the first Board meeting after 30 June each year, commencing after 30 June 2016, implicitly unless and until the investigation was terminated; and (3) it recorded a determination that "the investigation authorised by this instrument, as amended, remains a special investigation". 198 Ground 4.5 challenges the validity of that part of clause 3 of the 2016 instrument by which the Board made the third amendment or variation listed above, determining that the investigation that had been authorised would remain a special investigation without an end date. In light of the conclusion reached above in respect of ground 3, it follows that this determination was required to permit the extended investigation's continued status as a special investigation for all or any part of the duration of the authorised investigation, and thereby the availability of the ACC's coercive powers. To this end, the appellant's challenge addressed the antecedent consideration and determination, which was recorded in the 2016 instrument, that the Board had first: (1) considered "whether ordinary police methods of investigation into the specified criminal activity are likely to be effective at understanding, disrupting or preventing the specified criminal activity"; and (2) determined "that ordinary police methods of investigation into the specified criminal activity are not likely to be effective at understanding, disrupting or preventing the specified criminal activity". This assessment, to make compliance with the condition in s 7C(3) meaningful, had to be referrable to the reason for, and scope and purpose of, the investigation that had been authorised. 199 In substance, it was submitted by the appellant in support of ground 4.5 and issue 5 that, given the indefinite duration afforded to the authorised investigation in question, the mandatory consideration in s 7C(3) required the Board to engage in the impossible task of predicting that ordinary policing methods would always be ineffective. It was submitted that the impossibility of the Board giving proper consideration to that question meant that s 7C(3) was not lawfully complied with. However, it is the incorrect way in which the appellant frames this issue that creates the asserted impossibility. The framing is incorrect for two reasons. First, "indefinite" in this context does not mean "always" any more than it means "infinite" or "perpetual". Secondly, the Board was not required to predict that ordinary policing methods would be ineffective, but only that they would not be likely to be effective. The Board did not make any determination that that ordinary policing methods would always be ineffective, or even that they would be always likely to be ineffective, but only that they would not be likely to be effective for the purposes of the approved investigation, which was of indeterminate length, but not infinite or perpetual. The issue properly raised is whether this particular determination was lawfully made given that the investigation in question had no stipulated end date. 200 Several observations should be made about what is required of the Board by the mandatory consideration in s 7C(3). In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 347 ALR 173, the Full Court at [36]-[45] relied upon a series of cases which had addressed the meaning of a statutory obligation imposed on a decision-maker to "consider" particular matters. The burden of that authority means that, to the extent that s 7C(3) mandates that the Board "consider" the likely efficacy of ordinary police methods of investigation, the Board is required to engage in an "active intellectual process" in its consideration and determination. However, as observed by the High Court in X7, the Board is required not only to consider this question, but also necessarily to determine that ordinary police methods are not likely to be effective in relation to the stated matters: X7 at [150]. 201 Although in different terms to what was in force at the time of the 2013 instrument, s 7C(3) as amended still required a predictive and qualitative assessment by the Board. For the requirement to have had any meaningful content, that assessment was to be directed to existing or foreseeable ordinary police methods of investigation, as applicable to the federally relevant criminal activity in contemplation. The conclusion was required to be reached that those methods were not likely to be effective in the sense required by the terms of s 7C(3). That is not to say that such a conclusion, once made, must be revisited. But it must be properly reached at the time that the determination is carried out. 202 It was for the Board and the Board alone to consider whether the extended investigation, which it authorised to be without any definite end date, should also be determined to be a special investigation, and in so doing to make a predictive assessment of ordinary police methods and to conclude that a special investigation was necessary. The question raised by appeal ground 4 is whether the decision evidenced in the terms of the 2016 instrument went far enough to meet the requirements of s 7C(3). More precisely, the question is whether the appellant has established that the primary judge erred in finding, in the alternative to the conclusion that this was not required, that the safeguard consideration requirement had been met. 203 As already noted, the problem with the appellant's argument is that the absence of an end date does not entail any conclusion that the Board had in contemplation that the special investigation would be required or continue forever. Indeed, there is nothing to suggest that the Board in fact proceeded on that basis and considered that it was necessary to determine that ordinary police methods would always be ineffective. Rather, the determination of the Board was, in accordance with the predictive exercise required by s 7C(3), that ordinary police methods were not likely to be effective as applicable to the federally relevant criminal activity the subject of the authorised investigation, being an investigation which did not have a fixed duration. The distinction is subtle, but fundamental. It goes to the heart of the respective roles of the Board as an agent of the executive making decisions and exercising powers bestowed by the ACC Act on the merits, and the limited supervisory role of this Court in relation to the lawful performance of that executive function. 204 It was a matter for the Board to consider whether any variation should be made to the reason for, scope or purpose of the special investigation that had previously been approved. It is clear that the Board formed the view, in effect, that while the reason for and purpose of the investigation should not be changed, it was no longer appropriate to stipulate an end date for the investigation. Such a restriction was evidently seen as being insufficiently flexible. The Board therefore made a fresh authorisation based upon its prior authorisation in the 2013 instrument by removing the specified end date. At the same time, the Board determined that this indefinite investigation would continue to be a special investigation. Such decisions as recorded, akin to reasons, are required to be read beneficially: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. 205 In the absence of any error having been positively demonstrated, the Board must be taken to have formed a view that, for whatever period it considered the investigation was likely to continue, ordinary police methods of investigation would not be likely to be effective. The Board was under no obligation to stipulate the period for which it made that assessment, but there is no basis for assuming that it was either perpetual or infinite. It therefore cannot be accepted that the Board faced any impossible task of assessing what it could not have known. Rather, it is to be assumed that the Board made an assessment based on what it did know and could predict. 206 The appellant has not made good his contention that the Board failed to have regard to the mandatory consideration in s 7C(3) of the ACC Act. Accordingly, he has not established that the primary judge erred in this respect. 207 It follows that ground 4 must fail.

Conclusion 208 The appeal should be dismissed with costs. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.