Consideration
39 Mr Abbott is strictly correct in saying that the Board's resolution of 27 July 2005, does not, on its face, determine to do anything. Instead, on its face, it only "authorise[s] the ACC to undertake a special investigation …". Moreover, under s 7C(1)(c), the word "undertakes" appears to relate only to an intelligence operation, and not an investigation. However, in my view, the validity of the first determination (or indeed any of the determinations) cannot be determined by focusing on the words used by the Board in the resolution relating to the determination, but rather by construing the relevant provisions of the Act that specify what is required of the Board to make a valid determination under them; and then looking to see wherever the Board complied with those requirements.
40 At this point, it is appropriate to interpolate what the High Court of Australia had to say about the task of construing the provisions of legislation in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ("Project Blue Sky"). In that case, the High Court held that a legislative provision should be construed: "by reference to the language of the instrument viewed as a whole"; by considering: "the context, the general purpose and policy of a provision and its consistency and fairness ...", and beginning by: "… examining the context of the provision that is being construed": at [69]. Where conflict appeared to arise from the language of particular provisions, the Court went on to observe that it: "must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions" and "… [r]econciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"" at [70]. Finally, the Court held that: "a court construing a statutory provision must strive to give meaning to every word of the provision": at [71].
41 In this instance, the relevant provisions of the Act that specify what is required of the Board when authorising an investigation and making a determination that the authorised investigation is a special investigation, are s 7C(1)(c), s 7C(1)(d), s 7C(3) and s 7C(4). I should add that Mr Abbott did not place any reliance on s 7C(4) for the purposes of this ground of challenge, so it is not presently necessary to consider the effect of those provisions. Furthermore, s 7C(2) only deals with a determination that an intelligence operation is a special operation, so its provisions are not relevant here where the Board was dealing with an investigation. The remaining provisions (above) give the Board the functions, among others, of authorising, in writing, the Commission to investigate federally relevant criminal activity (s 7C(1)(c)); and determining, in writing, whether such an investigation is a special investigation (s 7C(1)(d)). However, as I have already noted, before doing the latter, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective (s 7C(3)).
42 In this respect, it is important to recall the critical interrelationship I have already mentioned above (see [4] above), between the Board's determination under s 7C(1)(d) (including 7C(3)), that an investigation is a special investigation and the triggering of the Commission's coercive powers as set out in the Act. It is also important to note how the authorisation and determination provisions of s 7C fit into the scheme of the Act. The expression "federally relevant criminal activity", which is the focus of the authorisation under s 7C(1)(c), is defined in s 4 of the Act to mean:
(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.
43 The situations where an offence against a law of a state has a "federal aspect" to it are defined in s 4A of the Act. Those provisions are lengthy and detailed but, in essence, they require that either: the elements of the state offences; or the circumstances in which they were committed; potentially fall within Commonwealth legislative power; or the Commission investigation of them, or intelligence operation in relation to them, is incidental to an investigation or intelligence operation in relation to an offence against a law of the Commonwealth or a Territory.
44 This interaction between State and Commonwealth laws and the peculiar statutory context in which the Commission operates was described by the Full Court in P v Board of the Australian Crime Commission (2006) 151 FCR 114; [2006] FCAFC 54 ("P") at [27] as follows:
In order to understand the relevant aspects of the Act, it is appropriate to consider the overall governance structure which it establishes. That structure - Inter-Governmental Committee, the Board and ACC - is unusual, as are some aspects of ACC's functions. These aspects probably reflect the fact that ACC is a creature of the Commonwealth but is to operate in areas which have been historically, and are primarily, regulated by the States. ACC's operational and investigative functions are limited to those authorised by the Board. Such authorisation may only be granted in connection with serious and organized crime, committed or anticipated, against a law of the Commonwealth, a State or a Territory. Where the relevant law is a State law, the crime must have a federal aspect. See ss 4, 4A and 7A. The definition of "federal aspect" in s 4A is particularly complex. It is likely that the intention was to ensure constitutional validity of the Act by limiting the functions of ACC to areas in respect of which the Commonwealth Parliament might legislate. It was probably intended that ACC operate in support of agencies such as those represented on the Board, rather than in competition with them. The composition of the Board may also have been designed to prevent encroachments on the areas of responsibility of those and other Commonwealth and State law enforcement and intelligence agencies. (emphasis added)
45 As well as describing the broader constitutional and institutional context of the Act and the Commission's operations, in my view, these observations assist to identify the purpose and policy of some of the relevant provisions of s 7C. In particular, the purpose and policy of ensuring the investigations and intelligence operations conducted by the Commission relate to an area of Commonwealth legislative power (emphasised above) is promoted by the requirements of s 7C(1)(c) which confines the Board to intelligence or investigations operations that relate to a federally relevant criminal activity, as defined in s 4 and s 4A. Further, in my view, the purpose and policy of avoiding having the Commission encroach on areas of ordinary policing responsibility, whether at a State or Federal level (also emphasised above), is promoted by s 7C(3) which requires the Board to consider whether ordinary police methods of investigation into the matters are likely to be effective, before it determines that an investigation is a special investigation.
46 However, while these matters assist to identify the broader purpose and policy of an authorisation and determination under the relevant provisions of s 7C, they do not directly answer the question: what is required to make a valid determination under those provisions? In part, the answer to that question lies in the prescriptive language, if any, employed in the relevant provisions, ie s 7C. It is self-evident that one such requirement is that any authorisation or determination under s 7C must be "in writing". In CC, Mansfield J observed that the purpose of this requirement was: "… to secure certainty as to the terms of the determination, so that the obligations arising from the determination can be implemented and the consequences arising from actions taken by reason of the determination can be properly validated": at [32]. I respectfully agree. I should add that the Full Court dismissed an appeal from the decision of Mansfield J in CC: see (2007) 159 FCR 282; [2007] FCAFC 96 ("CC FC").
47 However, apart from the requirement of writing (and the requirements in s 7C(4) which are not presently relevant), there is nothing in s 7C that prescribes the form an authorisation or determination must take (see P at [34]), or even that it must be contained in one document. Accordingly, in P, the Full Court held that it would satisfy the requirements of s 7C if two documents were to be read together (see P at [38]). Furthermore, there is nothing in s 7C, or elsewhere in the Act, that prescribes how the Board must determine in writing that an operation or investigation is a special operation, or a special investigation, eg that a document be executed by affixing a common seal (see CC at [26]), or that it be by a resolution in particular terms: see SS at [32]. Thus, in CC, Mansfield J held that the Board's resolution in that case adopted a draft instrument put before the Board, such that it (the latter) became the Board's determination in writing: see CC at [33]. These observations are not intended to ignore provisions such as s 7G(4) that prescribes a majority vote of at least nine Board members (including at least two eligible Commonwealth members) for a determination of a special intelligence operation or a special investigation, or s 7H(2) that requires the Board to keep minutes of its meetings, or s 7C(5) that requires a copy of a determination to be given to the Inter-Governmental Committee three days after it is made. However, none of these provisions has been raised by Z in support of this ground of challenge. It follows from all this that, for present purposes, the only specific relevant requirement of a valid authorisation and determination under s 7C, is that it must be in writing.
48 In this matter (as in CC: see [36] above), the Board's resolution began with the words: "… resolve[d] in terms of the instrument …". The instrument referred to in the resolution was the first draft instrument attached to the agenda paper for the Board's meeting. Mr Abbott did not submit that I should not infer this fact and even if he did, I consider that such an inference is clearly open on the evidence before me (set out at [29] - [32] above): cf a similar inference drawn by Jagot J in SS at [16]. By passing its resolution in these terms, I consider the Board adopted the first draft instrument as the Board's determination in writing. I consider this complied with the sole relevant requirement of s 7C that the Board's determination must be in writing. Since this is the only relevant requirement of a valid determination under s 7C, I consider that the first determination was a valid determination under the Act. I note and respectfully agree with the similar conclusions reached by Mansfield J in CC at [33], by the Full Court in CC FC at [21] and by Jagot J in SS at [31] and [35]. Indeed, I am probably bound by the decision in CC FC.
49 In other respects, I consider the terms of the first draft instrument and, therefore, the first determination, are quite specific and detailed about what the Board authorised and determined under s 7C. I note the Full Court took a similar view of the effect of the contents of the draft instrument in CC FC at [21]. In particular, clause 4 of the first draft instrument (see at [31] above), sets out the terms of the Board's authorisation under s 7C(1)(c), that the Commission was authorised to investigate the matters in Schedule 1 of the first draft instrument relating to federally relevant criminal activity. When clause 4 is read with Schedule 1 (consistent with the observation in P at [38]), the general nature of the circumstances, or allegations, constituting the federally relevant criminal activity, have been clearly described. Furthermore, clause 5 of the first draft instrument, makes it clear that the Board determined under s 7C(1)(d) and s 7C(3), in clear and express terms, that the investigation described in Schedule 1 (which is the same as that referred to in clause 4), was to be a special investigation.
50 It follows that I do not consider the absence of the word "determination" from the Board's resolution is significant. I consider that is overcome by the clear and specific provisions of clause 5 of the first draft instrument which, by the resolution, the Board adopted as the first determination. For the same reason, I do not consider that the presence of the word "undertake" in the Board's resolution has the significance contended for by Mr Abbott. In my view, that, too, is addressed by the specific terms of clause 4 of the first draft instrument/first determination, which closely follow the provisions of s 7C(1)(c) and make it clear that the Board was authorising the Commission to investigate the matters mentioned in Schedule 1. In any event, I respectfully agree with the observations of Jagot J in SS that, in this context, the functions of undertaking an intelligence operation and an investigation are not mutually exclusive and, indeed, overlap: see SS at [72] to [73].
51 For these reasons, I reject this ground of challenge to the first determination.