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.