AB v National Crime Authority

[1998] HCATrans 446

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M56 of 1998

B e t w e e n -

AB

Applicant

and

NATIONAL CRIME AUTHORITY

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 10.42 AM

Copyright in the High Court of Australia

MR A.C. ARCHIBALD, QC:   I appear with my learned friend, MR P.W. COLLINSON, for the applicant, AB.  (instructed by Clayton Utz)

MRS S.M. CRENNAN, QC:   If the Court pleases, I appear with my learned friend MR B.E. WALTERS, for the respondent.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Mr Archibald.

MR ARCHIBALD:   We adopt the relevant submissions of our learned friends, Mr Richter and Mr Judd and rely upon our written submissions.  We say that our matter, likewise, raises special leave questions.  There are questions of general importance.  But, in particular, in our case, there are more acute questions affecting the administration of justice.  Our questions arise at the outset of the Authority embarking upon the compulsory processes which it seeks to exercise and we say that it is particular important that there be an available and satisfactory mechanism for challenging the Authority where it is alleged that the Authority is exceeding the power conferred upon it.  The approach adopted by the Full Court, in our case, makes it very difficult, if not impossible, for a person being examined effectively to challenge the subject matter which the Authority to examine that person upon because it confines attention in respect of the matter to the notice of reference.

The notice of reference is a notice which, by reason of section 13(2)(a), is couched in terms of generalities and not in terms of precision and so long as one is confined to a description of the general nature of the allegations it remains very difficult indeed for a party to establish and demonstrate that the Authority has moved from the authorised fishing waters into the unauthorised fishing waters and we say that matter arises with a particular point in the circumstances of our case.  We say that the “four corners” doctrine is unsound, particularly because the notice of reference is not the definitive exposition of the content of the matter which the Authority exercises its powers in relation to.  We say the function of a notice of reference under section 13 is, firstly, to effect the reference and, secondly, to give limited information in relation to the matter but not to define the matter.

The first step is to enliven the investigatory power separately conferred by statute.  The Minister does not clothe the Authority with the power, he enlivens it.  And, the remaining function of the notice is to convey general information of a kind that will be relevant when the notice is appended to a summons under section 28(5) but it is because of that second function of the notice that the statute goes out of its way, as we would contend, to avoid a requirement that the notice define the “matter” for if the notice were to define the “matter”, that is to state with precision the elements of the matter, then there would be a substantial impediment to the discharge by the Authority of its functions for the notice must accompany the summons and the Authority’s hand may well be tipped if the notice were to contain the definition of the “matter”.

And, that is way, as we would contend, section 13(2)(a) abstains from a command that the notice contain a definition of the “matter” and states in lieu that the notice shall describe the general nature of the circumstances or allegations and here it is allegations.  The process of description is apt to the process of providing a verbal picture of “subject matter” which separately exists.  To describe is not to establish the subject matter but to narrate its existence and to describe the general nature is to portray the main characteristics of the subject matter but not to identify each salient feature which the subject matter has.

GUMMOW J:   Now, this matter came into the Federal Court under section 32(2), is that right?

MR ARCHIBALD:   Yes, your Honour.

GUMMOW J:    There was a claim in resistance to a question that was put, is that how - and that raised the whole structure or foundation of the inquiry, is that what happened?

MR ARCHIBALD:   That is so, yes.  The matter first went to Justice Northrop.  It was essentially dealt with on preliminary points and then the substantive matters were picked up, particularly in the Full Court’s decision.  So, the burden of these submissions is to say that the Full Court erred in concluding, as it did, that the function of the notice was itself authoritatively to define the “matter”.  The further indicator which we say exists within subsection (2)(a) that that is not the function of the notice is the circumstance that the notice describes the general nature of the allegations.  Now, we say it is not the function of the notice itself to make allegations.  The allegations are the core substance of the matter.  It is not, and we would submit, cannot be the function of the notice itself to make those allegations.  They exist independently of the notice.  They exist, no doubt, antecedently to the notice and the function under subsection (2)(a) is to provide some indication of their general nature.

Now, on the footing that the matters resides within the allegations and on the footing that the notice does not make or constitute those allegations, we say it inevitably follows that the matter must reside outside the notice, the notice cannot be definitive of it, and the reasoning of the Full Court fails to recognise those elements, neglects to attend to them.  The court wrongly, in our submission, approached the notice of reference as though it had the substantive function of clothing the Authority with the power to investigate, as distinct from enlivening the statutory power and attributed and ascribed to the notice the substantive function of defining authoritatively the matter itself and we say it is wrong in that regard.

The Full Court  was also wrong, in our submission, in addressing section 13(3) which the court did in the application book.  The passage appears at the top of page 81.  In addressing section 13(3) there the court said at line 6:

A reference may be withdrawn by the Minister by notice in writing to the Authority.  The subsistence of the notice is a condition of the Authority’s ability to investigate the matter.  That indicates that the nature and scope of the matter are contained in and defined by the notice.

But, it is palpably wrong, in our submission, to say as the court did there at line 7 that:

The subsistence of the notice is a condition of the Authority’s ability to investigate –

the condition of the Authority’s ability to investigate is the continuance of the reference, not the notice of reference and plainly, in that passage as well, the court is drawing upon the notion of the substantive function of the notice as clothing the Authority with the power to investigate as part of its reasoning which involved a conclusion that the notice also defined the matter.  Now, we say those elements of the court’s reasoning are plainly wrong and they undermine the soundness of the approach that it has sought to adopt in respect of the question as to whether the matter was defined within the notice.

Now, we say there is no provision in the Act providing for or requiring an authoritative definition of the content of the “matter” but we do say that, in any event, it is clear from the terms of section 13 that you do not finding it in the notice of reference.  Ordinarily, one will find the most complete identification of the content of the “matter” in the request for reference that is propounded.  If that request is embraced in its totality then no doubt one has all that one needs in that document.  If the request is accepted in part, is modified, ordinarily there would be a separate document, probably a single separate document, identifying that alteration and one might expect, therefore, that the quest for identification of the matter will not be a difficult one.

There may be some exceptional cases but in the ordinary circumstance it will not be a difficult or extensive process.  Here the material which we sought to rely upon, and would but for the determination adversely to us have relied upon, one has material indicating what were the allegations, the general nature of which are described in the notice of reference.  One has the request for reference at page 38 of the application papers and at page 40 under the heading, “Details of Relevant Criminal Activity” one has a passage setting out, “What allegations have been made” and those were the allegations that formed the subject matter of the request.  Now, it does not matter for the purposes of this application but if one considers the detail of the allegations there, one sees subject matter that is so far divorced, as we would contend, from the transaction about which AB was sought to be questioned, that one could clearly see it is outside the matter on any view of the facts.

But, the point that one notes for present purposes is that one cannot divine from the description of the general nature contained in the notice of reference the elements of the allegations which appear at page 40 and that is the embodiment that one needs in order to define the “matter”.  There are, of course, in the notice of reference certain phrases that require one to go outside the notice, in any event.  One instance is that the notice of reference refers to “certain directors of Elders” and one cannot, without going outside the notice, comprehend which of the directors are the subject of the allegations.  The material at page 40 gives you that.  So, that the process is a workable one, an understandable one.

The Full Court  ultimately adopted the reasoning of Justice Brooking in the DPP reference.  The reasoning of Justice Brooking seemed to be founded primarily, if not exclusively, on questions of inconvenience.  A principle of inconvenience, as we would contend, tells in favour of the argument that we propound rather than against it.  The view of inconvenience is that certainty would exist if one were confined in the notice of reference, but because the notice is couched in terms of generality, necessarily so, one cannot derive certainty from the generality.  In order to have certainty one needs to go to the external material that will identify and provide the boundaries or provide the limits of the fishing waters that are necessary both for the Authority and for the person being examined, so that there is, as we would contend, in fact, inconvenience in being confined to the notice of reference, no help, as I think was put for some of the applicants, no help, either, to the Authority or to persons who are the subject of examination.

So, in that context, we say that the reasoning incorporated by reference in the Full Court’s decisions is itself unsound and mistakes the practical operation of the notice of reference.  If one looks at the notice of reference here one sees immediately the opaqueness of the language that is insusceptible of conveying with precision what are the boundaries of the matter.  One needs to know the boundaries of the matter with certainty.  True it is one then has the nexus issue, can there be a connection with what is within the boundaries, but the importance lies in defining the boundaries and the mechanisms accepted and adopted by the Full Court and by the Court of Appeal in the DPP matter are not conducive to establishing those boundaries and they misconceive, in our submission, the function of the notice.

The next matter we would seek to address as a distinct topic is the admissibility of extrinsic evidence as a discrete topic.  If we were to be right in the contention that the “matter” is not defined in the notice then one necessarily has to go outside the notice in order that there be a delineation of what the “matter” is and evidence must be able to be adduced for that purpose.  If we are wrong about that contention there is still the issue as to whether extrinsic evidence may be permitted to elucidate that which is the subject of the definition of “matter” within the notice of reference.  And, we say there is no reason in principle, there is no necessary implication in the Act as to why that course should be prohibited.  We say that there is a positive reason as to why it should be permitted and that is because the definition - which we accept for this part of our argument – contained in the notice of reference is a general definition.  At best, it is a definition by reference to general nature, and no more. 

In order to delineate the boundaries of that matter, as so defined, one needs more completely and comprehensively to understand what falls within the matter and that step can be achieved by resort to outside material such as the request at page 40 of the application papers or, indeed, in this case, the second critical document we were seeking to rely upon was the initiating letter from the National Companies and Securities Commission to the Authority, which is at page 18, and in the submissions attached to that document running through to page 23, are even more details of the allegations.

The process of resort to extrinsic evidence for these purposes is not so much to resolve an ambiguity but better to identify that which is described within the notice of reference.  It is not a case of selecting between two alternative meanings which are open, on the face of the notice of reference, rather the process of resort to extrinsic evidence is to give particular embodiment to the general words that one finds in the notice so that one knows whether boundaries are to be drawn.  Again, the foundation

of the reasoning against that view is the concept of Justice Brooking in the DPP case that there is inconvenience associated with that process.  The Full Court expressly adopted that reasoning.  For the reasons we earlier advanced, we submit that there is nothing in the inconvenience point to oust what would otherwise be the normal conclusion that one would reach that where other evidence can provide a better embodiment of the matter it should be available to be considered.

So, on those two main points we say substantial doubt attends the reasoning of the Full Court.  The matters are of general importance.  They are particularly acutely relevant to the circumstances of our client and we say that special leave should go.  This case is not a case which presented the kind of considerations which the Court considered in R v Elliott 185 CLR 250 where there were observations about not only the circumstances of the criminal trial but also that the issues had not arisen at the time at which the Authority was exercising its compulsory powers. Here that is the case and we say that gives rise to those special administration of justice issues that we identify. If the Court pleases.

GLEESON CJ:   Thank you, Mr Archibald.  Yes, Ms Crennan.

MS CRENNAN:   If the Court pleases.  We do not seek to repeat our written outline and we also adopt what Mr Jackson said in relation to what he described as his first point. 

It was put by him that one of the reasons why one should not go outside the four corners of the reference to determine the scope of the Authority’s power is that the Authority’s charter is set out in the reference and we would add to that that it is clear from a reading of the legislation and, most particularly, from a fair reading of section 13(1) and 13(2) that the only way to determine the scope of the powers is to check what was in fact referred. 

Secondly, we would briefly mention that there is a helpful passage in relation to the application book in the Full Court’s decision at page 80, at the bottom of the page at about point 9 where the Full Court deals with the connections between sections 9 and 10, which deal with matters antecedent to the reference, and section 13, and it is put there that:

The sequence of events the subject of ss 9, 10 and 13 supports the conclusion that the s13(1) notice is the point at which the matter is defined.

And we would be submitting that that is clearly correct and that what the Minister is told or what is in the IGC meetings or whether or not the Authority has access to matters such as minutes of those meetings are all irrelevant in terms of determining the scope of the power which, by reason of section 13(1) and (2), read fairly, is to be found only in the reference itself.

Related to that point, that is to say the “four corners” issue, we say is - bearing in mind the nature of the special investigations which are permissible under section 11 of the Act, in National Crime Authority v A1
(1997) 75 FCR 274 there is a description at the top of page 285B in relation to the types of investigations permitted under the legislation and it is put at the bottom of that first paragraph:

So the concern is with possible, undiscovered and incomplete offences.

That characterisation of what is permissible concern does affect, we would submit, the way in which one should treat the degree of generality which is set out not only in this reference but which is permissible under the precise terms of section 13(2).

Now, thirdly, Mr Archibald has put it that it is not possible to divine the elements of the allegations from the reference.  In response to that we would say it is no part of the reference requirements under section 13(2) to set out in anything other than generalities the nature of what is to be covered by the reference.  Miss King, in identifying the relevance of the question, was not making reference to any extrinsic materials bearing upon that reference, rather what she was identifying was something comprehended by the reference and we would say that is the correct approach.  That is to say, one does not look to the reference to be divined, one looks to the reference to see what is comprehended by the reference, what can reasonably be said to fall within the reference, what is encompassed by the four corners of the reference, and connected with that issue is the relevance issue generally. 

We would say that it is important to recollect in relation to the submissions about how much certainty is to be sought in the reference itself that it is not relevance in the curial sense that is really being referred to, it is rather relevance in the context of being concerned with possible undiscovered and incomplete offences.  So, it is relevance in relation to an inquisitorial process rather than an adversarial process that is the relevant benchmark.  There are helpful passage which we will not of course read.  In A1, to which I have already referred, there are passages commencing on page 285 going through to 287 in relation to the precise nature of relevance as used in this context and, in particular,Justice Dixon, as he then was, in

McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, said that the question objected to in McGuinness’ Case would not be relevant in adversary litigation but the inquiry commanded by the commission is not the trial of an issue but the ascertainment of unknown facts.

That marries with the point that the special investigation can concern itself with undiscovered and incomplete facts.  So we would say a correct approach is not – not helpfully references to a perceived nexus or a nexus but rather to test the relevance by whether or not it is relevant to the ascertainment of an unknown fact.  That leads to the various authorities which have dealt with the fact that any challenge or review to a question or a proceeding with this type of investigative process can only be made if it can be put that the question is not bona fide or is somehow unreasonable in the light of the general terms of the reference.  So, rather than relevance, the focus is necessarily upon bona fides and reasonableness.

Next, Mr Archibald has put a point which is somewhat new.  It was not argued before the trial judge nor before the Full Court and it is this, that somehow one ought to be able, as a matter of principle, to go outside the four corners of the reference and have access to extrinsic material, as he would put it, to have some certainty in respect of generalities in the reference.  Our answer to that would be that first of all the degree of generality permissible in the reference is to be gleaned not from what a witness perceives as his or her requirements in a divining process but is rather to be gleaned from the requirements of section 13(2).  It is important, we would suggest, to bear in mind that specificity or identification of specific matters may not even be possible in relation to a reference in this investigative process.

The third point we would make is that this particular notice contains all that is required by section 13(2) and we would also call in aid the passage at page 295 in A1 where the Court observed that requiring specific matters to be set out in the reference was contrary to legislative intention which made it plain that no more than a general description of the circumstances was required, and we would submit that, in essence, Mr Archibald’s suggestion that as a matter of principle one ought to resort to extrinsic materials for reasons of certainty is demanded that the reference have a specificity that the legislative intention clearly did not require.  Those are our submissions, if the Court pleases.

GLEESON CJ:   Thank you, Ms Crennan.  Yes, Mr Archibald.

MR ARCHIBALD:   If the Court please.  We agree that the notice contains all that is required by section 13(2) and we say that does not include the definition of “matter”.  My friend referred to sections 9 and 10 of the Act. 

We accept, for present purposes, that the matter need not necessarily be defined at that point.  Section 9 is the consultation point and section 10 is the making of the request.  There is an interval and a step between the making of the request and the reference of the matter and that is the point at which “matter” is ultimately and finally defined as a matter of concept.  It may in a practical sense be defined earlier if that which is the subject of the request finds favour with those to whom the request is directed but the final definition of content occurs, in our submission, after the making of the request but that does not lead one to the conclusion that it happens eo instanto with the making of the reference and is necessarily embodied within the notice of reference.  If the Court please.

GLEESON CJ:   We will adjourn for a short time to consider the course which we will take in this matter.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

GLEESON CJ:   The Court is of the view that there is not sufficient reason to doubt the correctness of the decision of the Full Court of the Federal Court to warrant a grant of special leave and special leave to appeal is refused.

Mr Archibald, do you resist the application for costs in this matter?

MR ARCHIBALD:   No, I cannot.

GLEESON CJ:   Very well, the applicant must pay the respondent’s costs of the application.

AT 11.16 AM THE MATTER WAS CONCLUDED