AA v Board of the Australian Crime Commission

Case [2010] FCA 553

FEDERAL COURT OF AUSTRALIA

AA v Board of the Australian Crime Commission [2010] FCA 553

Citation: AA v Board of the Australian Crime Commission [2010] FCA 553
Parties:

AA v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD

EE v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD

FF v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD

HH v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and SE (TIM) SAGE

GG v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD

LL v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD

MM v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and SE (TIM) SAGE

EE, AA and BB v AUSTRALIAN CRIME COMMISSION and BOARD OF THE AUSTRALIAN CRIME COMMISSION; AUSTRALIAN CRIME COMMISSION v EE, AA and BB

DD v AUSTRALIAN CRIME COMMISSION and BOARD OF THE AUSTRALIAN CRIME COMMISSION; AUSTRALIAN CRIME COMMISSION v DD

BB v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD

CC v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JOHN PLANTA HANNAFORD; AUSTRALIAN CRIME COMMISSION v CC

DD v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and TIM SAGE

JJ v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JEFFREY ANDERSON

KK v BOARD OF THE AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION and JEFFREY ANDERSON

File numbers: SAD 64 of 2009
NTD 8 of 2009
NSD 436 of 2009
NSD 459 of 2009
NSD 460 of 2009
NSD 515 of 2009
NSD 522 of 2009
NTD 10 of 2009
NTD 13 of 2009
SAD 65 of 2009
SAD 66 of 2009
SAD 67 of 2009
SAD 70 of 2009
SAD 71 of 2009
Judge: FOSTER J
Date of judgment: 2 June 2010
Catchwords: ADMINISTRATIVE LAW – whether certain decisions and instruments made by the Australian Crime Commission were invalid because the Commission and its Board failed to comply with relevant statutory provisions governing the making of those decisions and instruments – decisions and instruments held to be valid – whether certain documents seized during the execution of a search warrant were protected from disclosure by legal professional privilege – legal professional privilege attached to some documents (but not all) – in respect of those documents originally protected by privilege, privilege held to have been waived  
Legislation: Acts Interpretation Act 1901 (Cth), s 20, s 25D
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 and s 6
Australian Crime Commission Act 2002 (Cth), ss 7B, 7C, 7D, 7E, 7F, 7G, 7H, 7J, 7K, 22, 28 and 29
Australian Federal Police Act 1979 (Cth), s 17(1) and s 19
Evidence Act 1995 (Cth), s 118 and s 122
Judiciary Act 1903 (Cth), s 39B
Cases cited: AA v Board of the Australian Crime Commission [2009] FCA 642 cited
Australian Crime Commission v NTD 8 (2009) 177…
Details
AGLC
AA v Board of the Australian Crime Commission [2010] FCA 553
Case
[2010] FCA 553
Decision Date

CaseChat Overview and Summary

The case of AA v Board of the Australian Crime Commission involved challenges to the validity of certain decisions and instruments made by the Australian Crime Commission (ACC) and its Board. The primary issues before the court were whether specific resolutions and authorisations made by the ACC Board were valid and whether documents seized during the execution of search warrants were protected by legal professional privilege. The applicants contested the validity of the ACC Board's resolutions and the authority of the individuals chairing the meetings where certain resolutions were made. Additionally, the applicants sought to have certain documents protected by legal professional privilege and argued that the ACC had waived that privilege.

The court considered the statutory provisions governing the making of decisions by the ACC Board and the requirements for chairing Board meetings. It was noted that certain resolutions and authorisations were made by the Board at meetings not chaired by the Commissioner of the Australian Federal Police, who is statutorily designated as the Chair of the Board. Despite this, the court found that the resolutions in question were valid as they were made in accordance with the statutory framework, even though the formal procedural requirements were not strictly adhered to. The court further determined that legal professional privilege applied to some of the seized documents but held that the privilege had been waived, thus allowing for their disclosure.

In its decision, the court dismissed the applicants' claims, finding that the ACC Board's resolutions were valid and that the privilege claimed over some of the documents had been waived. The court also ordered the applicants to pay the respondents' costs and incidental expenses related to the proceedings.

Orders

Orders of the court

1. The Application be dismissed.

2. The applicant pay the respondents’ costs of and incidental to the Application.

3. The Application be dismissed.

4. The applicants pay the respondents’ costs of and incidental to the Application.

5. The cross-respondents pay the cross-claimant’s costs of and incidental to the Cross-Claim.

1. The Application be dismissed.

2. The applicant pay the respondents’ costs of and incidental to the Application.

3. The Cross-Claim be dismissed.

4. The cross-respondent pay the cross-claimant’s costs of and incidental to the Cross-Claim.

Background

Background to the litigation

The document signed by Mr Hannaford in which he set out his reasons for issuing the summons to AA was created shortly before the summons to AA was issued and was in the following terms:MATERIAL FACTSI had regard to the following material for the purposes of being satisfied under subsection 28 (1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the summons: (a) A statement of facts and circumstances dated 1 May 2009 (b) Legal submissions dated 1 May 2009PURPOSE OF SUMMONSThe purpose of the Summons is to require the attendance of [AA] (‘the person’) to attend an Examination before an Examiner for the following reason:(a) to give evidence of federally relevant criminal activity involving criminal activity by members and associates of Outlaw Motorcycle Gangs (OMCGs) including your knowledge of any and all persons that may have been, may presently be, or may in the future be, involved in the commission of federally relevant criminal activity as set out in Schedule 1, Item 3 ‘Allegations’ of the attached (Annexure A) “Australian Crime Commission Authorisation and Determination” in particular your knowledge of serious drug offences and offences involving violence; and(b) attend from day to day unless excused or released from further attendance.Based upon my consideration of the statement of facts and circumstances and the legal submissions which are referred to above:(1)I was satisfied that the Special ACC investigation was within the terms of the Determination and that the Determination was still operative.(2)I was satisfied that it was reasonable in all the circumstances that the Summons be issued to the person to whom it is directed.(3)I was satisfied that it was reasonable in all the circumstances that the Summons be issued in the terms approved by me.(4)I was satisfied that the summons does, so far as is reasonably practicable, set out the general nature of the matters in relation to which it is intended to question the person.(5)I was satisfied that, in the particular circumstances of the special ACC investigation to which the examination relates, it would prejudice the effectiveness of the special ACC investigation for the summons to state beyond that which it does the general nature of the matters in relation to which the examiner intends to question the person.(6)I was satisfied that this was an appropriate Summons for the inclusion of a notation pursuant to subsection 29A(1)of the Australian Crime Commission Act 2002 because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the investigation and that a failure to do so might be contrary to the public interest.(7)I was satisfied that it was also appropriate that the notation pursuant to subsection 29A (1) of the Australian Crime Commission Act 2002 be in the terms approved by me. None of Messrs Hannaford, Sage or Anderson gave evidence at the hearing. Neither the statement of facts and circumstances dated 1 May 2009 nor the legal submissions dated 1 May 2009 referred to in the statement of reasons signed by Mr Hannaford in respect of AA was tendered in evidence.

Evidence

Evidence Before The Court

At all relevant times, s 28 of the Act provided: 28 Power to summon witnesses and take evidence(1)An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.(1A)Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:(a)before the issue of the summons; or(b)at the same time as the issue of the summons; or(c)as soon as practicable after the issue of the summons.(2)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.(3)A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.(4)The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.(5)An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:(a)the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and(b)the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.(6)In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.(7)The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.(8)A failure to comply with any of the following provisions does not affect the validity of a summons under subsection (1) of this section:(a)subsection (1A) of this section, in so far as that subsection relates to the making of a record;(b)subsection (2) of this section;(c)section 29A, in so far as that section relates to a summons under subsection (1) of this section.

Decision

Reasons for decision

On 24 June 2009, I ordered that pleadings be filed and served in proceeding SAD 64 of 2009 and in NTD 10 of 2009. It was agreed amongst all parties (including the NSW applicants) that the issues to be decided in all proceedings in which examination summonses were under challenge were those which would be articulated in the pleadings which I directed to be filed in SAD 64 of 2009 and that the issues to be determined in the search warrant proceedings would be those articulated in the pleadings which I directed to be filed in NTD 10 of 2009. The issues raised in respect of the examination summonses were the same in all proceedings in which those summonses were challenged and the issues raised in the search warrant proceedings were the same in the two sets of proceedings in which those warrants were challenged. SAD 64 of 2009 and NTD 10 of 2009 were thus designated as the lead vehicles through which all of the issues in the 14 actions being tried by me would be determined. As mentioned at [26] above, all questions of legal professional privilege and waiver of privilege in respect of documents seized at premises A, B, C and D were to be dealt with in the determination of the ACC’s Cross-Claims in proceedings SAD 66 of 2009, NTD 10 of 2009 and NTD 13 of 2009. The Decisions and Actions of the ACC under ChallengeThe Board Resolutions of 2007 and 2008 On 27 July 2005, the Board of the ACC resolved and determined that there should be a special investigation into certain federally relevant criminal activity. This resolution established Operation Wolsley. The resultant Determination was entitled Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005. I shall refer to that Determination as the 2005 Determination. The investigation authorised by the 2005 Determination was permitted to be carried on up to and including 30 June 2006. On 7 June 2006, the Board of the ACC resolved and determined that the term of Operation Wolsley should be extended to 30 June 2007. That Determination was entitled Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) Amendment No 1 of 2006. By that Determination, the Board of the ACC extended the time within which Operation Wolsley had to be concluded to 30 June 2007. I shall refer to that Determination as the 2006 Determination. No challenge is made either to the 2005 Determination or to the 2006 Determination. In the search warrant proceedings, an order is sought setting aside the 2005 Determination … “as amended ”. It is not clear to me precisely what is intended by that claim for relief. However, the applicants made no submission to the effect that the original Determination (the 2005 Determination) was invalid. All of their efforts were directed to challenging the 2007, 2008 and 2009 Determinations. I presume that the reference to the Determination (as amended) is to the extensions to Operation Wolsley effected by those Determinations.

Ratio Decidendi

Legal Principle Established

The next challenge to the search warrants mounted by the applicants is that the Issuing Officer in each case could not and should not have been satisfied that there were reasonable grounds to issue the search warrant. Satisfaction of this matter is a precondition to the issue of a search warrant under the Act. Particulars furnished in support of this ground refer to the absence of the requisite affidavit in support of the application for the warrants (a ground which was abandoned) but also refer to two further grounds, namely that:(a)The Issuing Officers made no findings concerning the grounds for issuing the search warrants; and(b)The Issuing Officers relied upon the post 1 July 2007 material in deciding whether or not there were reasonable grounds to issue the search warrants and they should not have had regard to such material for the same reasons as the Examiners should not have had regard to such material when issuing the examination summonses.Consideration and Decision The 2007 and 2008 Determinations The 2007 Determination is said by the ACC to have been authorised at a meeting of the Board of the ACC held on 14 June 2007. As I have noted at [38] above, the only challenge to the validity of the 2007 Determination is that the resolution by which it was authorised is said to be invalid because it was made at a meeting of the Board which was not chaired by the Chair of the ACC at the time (Commissioner Keelty) but rather was chaired by Mr John Lawler who, at the time, had been appointed Acting Commissioner of the Australian Federal Police. Mr Lawler was fulfilling that role whilst the Commissioner of the Australian Federal Police was absent from Australia. The same point is taken in respect of the meeting of the Board held on 25 June 2008. That is the meeting at which the 2008 Determination is said to have been authorised. On this occasion, Mr Tony Negus chaired the meeting. As at the date of that meeting, he had been appointed Acting Commissioner of the Australian Federal Police. As had been the case with Mr Lawler, Mr Negus was fulfilling that role whilst Commissioner Keelty was absent from Australia. It is, therefore, not in dispute that Commissioner Keelty did not chair either of the meetings to which I have referred. Section 7B to s 7K of the Act are found in Subdivision B—The Board of the ACC—Div 1—Establishment and functions of the Australian Crime Commission, the Board and the Inter-Governmental Committee—in Pt II—The Australian Crime Commission. Those sections are in the following terms:7B Establishment of the Board(1) The Board of the ACC is established by this section.Board members(2) The Board consists of the following members:(a)the Commissioner of the Australian Federal Police;(b)the Secretary of the Department;(c)the Chief Executive Officer 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.Chair(3) The Commissioner of the Australian Federal Police is the Chair of the Board.7C Functions of the Board(1) The Board has the following functions:(a)to determine national criminal intelligence priorities;(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;(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.Note:The CEO must determine, in writing, the head of an intelligence operation or an investigation into matters relating to federally relevant criminal activity: see subsection 46A(2A).Special operations(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.Note 1:See also subsection 7G(4) for the voting rule that applies in relation to such a determination.Note 2:See also Division 2 for the examination powers available if there is a special operation.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.Note 1:See also subsection 7G(4) for the voting rule that applies in relation to such a determination.Note 2:See also Division 2 for the examination powers available if there is a special investigation.Further details(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.Informing the Inter-Governmental Committee(5)The Chair of the Board must, within the period of 3 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.When determination takes effect(6)A determination under subsection (2) or (3) has effect immediately after it is made.7D Board meetings(1)The Chair of the Board may convene meetings of the Board.(2)The Chair, in exercising his or her power to convene meetings, must ensure that meetings of the Board are scheduled to meet the following requirements:(a)the first meeting of the Board must be within 2 months after the commencement of this section;(b)there must be a minimum of 2 meetings each calendar year;(c)the Board must meet in accordance with the schedule of Board meetings determined by the Board under this section.(3)The Board, at its first meeting, must determine, in writing, a schedule of Board meetings.7E Presiding at Board meetingsA meeting of the Board must be presided over by:(a)if the Chair of the Board is present—the Chair; or(b)otherwise—another eligible Commonwealth Board member who is present and who is nominated, in writing, by the Chair to preside.7F Quorum at Board meetingsAt a meeting of the Board a quorum is constituted by 7 Board members (not including the CEO).7G Voting at Board meetings(1)Subject to this section, a question arising at a meeting of the Board is to be determined by a majority of the votes of Board members present.Person presiding has a casting vote(2) The person presiding at a meeting has:(a)a deliberative vote; and(b)if necessary, also a casting vote.CEO is not a voting member(3)The CEO is not entitled to vote on any question arising at a meeting of the Board.Voting for special ACC operations/investigations(4)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.7H Conduct of Board meetings(1)The Board may regulate proceedings at its meetings as it considers appropriate.Note:Section 33B of the Acts Interpretation Act 1901 provides for people to participate in meetings by various means of communication (e.g. telephone).(2)The Board must ensure that minutes of its meetings are kept.7J Resolutions outside of Board meetings(1) This section applies to a resolution:(a)which, without being considered at a meeting of the Board, is referred to all members of the Board; and(b)of which:(i)if subparagraph (ii) does not apply—a majority of those members (not including the CEO); or(ii)if the resolution is that the Board 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—at least 9 Board members (not including the CEO but including at least 2 eligible Commonwealth Board members);indicate by telephone or other mode of communication to the Chair of the Board that they are in favour.(2)The resolution is as valid and effectual as if it had been passed at a meeting of the Board duly convened and held.7K Board committees(1)The Board may, with the unanimous agreement of all the members of the Board (not including the CEO), establish a committee or committees to assist in carrying out the functions of the Board.(2)The Board may dissolve a committee at any time.Functions(3)The functions of a committee are as determined by the unanimous agreement of all the members of the Board (not including the CEO).(4)However, the Board cannot determine that a committee has the function of determining whether an intelligence operation is a special operation or whether an investigation into matters relating to federally relevant criminal activity is a special investigation.(5)In performing its functions, a committee must comply with any directions given to the committee by the Board.Voting(6)A question arising at a meeting of a committee is to be determined by a majority of the votes of committee members present.(7)However, the CEO is not entitled to vote on any question arising at a meeting of a committee of which he or she is a member.Informing other Board members of decisions(8)A committee must inform the other members of the Board of its decisions.Conduct of committee meetings(9)A committee may regulate proceedings at its meetings as it considers appropriate.(10)A committee must ensure that minutes of its meetings are kept.