AB v National Crime Authority
[1998] FCA 707
•12 JUNE 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW ‑ National Crime Authority ‑ Jurisdiction to conduct special investigation ‑ Reference to Authority in respect of matter relating to relevant criminal activity ‑ Notice of reference required to describe general nature of circumstances or allegations constituting relevant criminal activity ‑ Whether sufficient particularity in notice ‑ Functions of notice of reference ‑ Whether evidence admissible to assist in identification of matter or construction of reference ‑ Whether proposed line of investigation within scope of reference.
National Crime Authority Act 1984 (Cth) ss 9, 10, 11, 13, 14, 28
National Crime Authority (State Provisions) Act 1984 (Vic)
National Crime Authority v A1 (1997) 145 ALR 126 applied
A B v National Crime Authority (unreported, Full Court, 3 July 1996) considered
DPP Reference No 2 of 1996 (unreported, Victorian Court of Appeal, 26 September 1997) applied
Mannah v State Drug Crime Authority (1987) 13 NSWLR 43 distinguished
Douglas v Pindling [1996] AC 890 mentioned
AB v NATIONAL CRIME AUTHORITY
VG 623 OF 1997
BLACK CJ, SUNDBERG AND NORTH JJ
MELBOURNE
12 JUNE 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 623 of 1997
BETWEEN:
AB
APPELLANTAND:
NATIONAL CRIME AUTHORITY
RESPONDENT
JUDGES:
BLACK CJ, SUNDBERG AND NORTH JJ
DATE OF ORDER:
12 JUNE 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant pay the respondent’s taxed costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 623 of 1997
BETWEEN:
AB
APPELLANTAND:
NATIONAL CRIME AUTHORITY
RESPONDENT
JUDGES:
BLACK CJ, SUNDBERG AND NORTH JJ
DATE:
12 JUNE 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE COURT
BACKGROUND
On 8 September 1995 the appellant attended a meeting of the National Crime Authority in response to a summons issued by the Authority pursuant to the National Crime Authority Act 1984 (Cth) (“the Act”) and the National Crime Authority (State Provisions) Act 1984 (Vict) (“the State Act”). The appellant was represented by counsel, who informed the Authority, constituted by Miss King QC, that the appellant proposed to challenge the validity of the summons. The appellant was sworn to give evidence and was asked a question by counsel assisting the Authority. Counsel for the appellant claimed that there was a reasonable excuse for the appellant to refuse to answer the question. The member overruled the claim and formally required the appellant to answer the question. The meeting was then adjourned to enable the appellant to apply under s 32(2) of the Act for an order of review in respect of the decision overruling the claim. An application was filed, and was dismissed by Northrop J. The present appeal is from that decision.
THE ACT
The Act and the State Act are complementary measures. It is sufficient to describe the essential provisions of the Act. The Authority is established by s 7(1). Its functions are set out in s 11. They are of two types ‑ "general functions" which are the subject of sub‑s (1), and "special functions" which are the subject of sub‑s (2). The general functions include the collection of criminal information and intelligence relating to "relevant criminal activities" and the dissemination of that information to law enforcement agencies, the investigation of matters relating to relevant criminal activities, and the co‑ordination of investigations by Commonwealth Task Forces, State Task Forces and joint Commonwealth and State Task Forces into matters relating to relevant criminal activities. The special functions are described as follows:
(a)where a reference to the Authority made under section 13 is in force in respect of a matter relating to a relevant criminal activity ‑ to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory; and
(b)where a reference to the Authority made in accordance with section 14 by a Minister of the Crown of a State is in force in respect of a matter relating to a relevant criminal activity ‑ subject to subsection 14(1), to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State.
An investigation conducted in performance of the special functions is a "special investigation": s 4(1).
References to the Authority by the Commonwealth and a State are governed by ss 13 and 14 respectively. Section 13(1) empowers the Minister, after consulting the Inter‑Governmental Committee ("the IGC"), by notice in writing to refer a matter relating to a relevant criminal activity to the Authority for investigation in so far as the relevant offence or offences are or include an offence or offences against a law of the Commonwealth or of a Territory. Section 14(1) requires the Authority to investigate a matter relating to a relevant criminal activity referred to it by notice in writing by a State Minister, with the approval of the IGC, in so far as the relevant offence or offences are or include an offence or offences against a law of the State. The IGC is established by s 8, and consists of the Minister administering the Act and a Minister of the Crown of each participating State. A "participating State" is one which participates in the activities of the IGC: s 4(1). Section 13(2) provides:
A notice under subsection (1) referring a matter to the Authority for investigation:
(a)shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity;
(b)shall state that the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or a law of a Territory but need not specify the particular offence or offences; and
(c)shall set out the purpose of the investigation.
Section 14(2), which deals with notices under s 14(1), is in the same terms as s 13(2).
The expression "relevant criminal activity" is defined as
any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, committed against a law of the Commonwealth, of a State or of a Territory.
The expression "relevant offence" means an offence:
(a)that involves 2 or more offenders and substantial planning and organization;
(b)that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques;
(c)that is committed, or is of a kind that is ordinarily committed, in conjunction with offences of a like kind; and
(d)that involves theft, fraud, tax evasion, currency violations, illegal drug dealings, illegal gambling, obtaining financial benefit by vice engaged in by others, extortion, violence, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, harbouring of criminals, forging of passports, armament dealings or illegal importation or exportation of fauna into or out of Australia, or that involves matters of the same general nature as one or more of the foregoing, or that is of any other prescribed kind ....
Section 22(1) empowers a judge of a prescribed court to issue a search warrant on the application of a member of the Authority who has reasonable grounds for suspecting that there may be in any premises a thing connected with a matter into which the Authority is conducting a special investigation. The warrant must, inter alia, include a statement of the purpose for which the warrant is issued, and the statement must contain a reference to the matter relating to a relevant criminal activity into which the Authority is conducting a special investigation and with which the thing is connected: sub‑s (5). Section 25(1) empowers the Authority to conduct hearings for the purposes of a special investigation. At a hearing the Authority may examine or cross‑examine any witness on any matter it considers relevant to the special investigation: sub‑s (8). It is an offence to give evidence that is to the witness' knowledge false or misleading: s 33.
Section 28 empowers a member of the Authority, for the purposes of a special investigation, to summon a witness to appear at a hearing to give evidence and to produce such documents or other things as are referred to in the summons: sub‑ss (1) and (7). A summons must be accompanied by a copy of the notice by which the matter to which the hearing relates was referred to the Authority under s 13 or in accordance with s 14: sub‑s (2). Unless the member is satisfied that to do so would prejudice the effectiveness of the special investigation, the summons must set out, so far as is reasonably practicable, "the general nature of the matters" in relation to which the Authority intends to question the person. However, the Authority may question the person in relation to any matter that relates to a special investigation: sub‑s (3). Failure to attend or answer questions without "reasonable excuse" is an offence: s 30. Section 29(1) empowers a member, by notice in writing, to require a person to attend and produce a document or thing that is relevant to a special investigation. Failure to comply with the notice without "reasonable excuse" is an offence: sub‑s (3).
Under ss 32 and 32A a person claiming to be entitled to refuse to produce a document under s 29, or to answer a question or produce a document at a hearing, may apply to the Federal Court for an order to review the decision of the Authority or, if the matter relates to a State notice or summons, to a State Supreme Court. Decisions of the Authority may also be subject to judicial review by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977.
THE REFERENCES
By notice dated 10 September 1990 the Attorney‑General for the Commonwealth referred to the Authority for investigation “the following matter relating to a relevant criminal activity insofar as the relevant offence or relevant offences are or include an offence or offences against the law of the Commonwealth or of a Territory”. The notice continues:
MATTER
Whether any relevant offences have been committed as alleged in the allegations particulars of which are set out below, and if so the identity of the person or persons involved and the nature of their involvement.
PARTICULARS PURSUANT TO SUBSECTION 13(2)
(a)The general nature of the allegations is:
That, in and in relation to transactions concerning (directly or indirectly) the disposal and/or acquisition of securities in Elders IXL Limited, certain directors of that company, alone, or in concert with other persons, improperly used their positions as directors of that company, and improperly used information acquired by virtue of those positions, in order to gain an advantage or advantages for themselves or some other person or persons or to cause detriment to that company and that with fraudulent intent, certain directors of that company, alone, or concert with other persons, failed, in and in relation to the said transactions, to act honestly in the exercise of their powers and the discharge of the duties of their office as directors of the said Elders IXL Limited.
(b)The allegations constitute a relevant criminal activity because the alleged activities may have constituted, or may be continuing to constitute, an offence against a law of the Commonwealth or of a Territory;
(i)involving 2 or more offenders and substantial planning and organisation including the use of complex corporate structures and complex commercial transactions;
(ii)of a kind or kinds ordinarily involving the use of sophisticated methods and techniques, including the deployment of persons with extensive knowledge of company law and regulation and with expertise in the area of corporate structures and financing mechanisms;
(iii)of a kind or kinds ordinarily committed in conjunction with other offences of like kinds; and
(iv)involving fraud, company violations, matters of the same general nature as fraud, and matters of the same general nature as company violations.
Paragraph (c) identifies “the offence or offences which may have been, or are being committed”. They are breaches of sub‑ss (1), (3) and (4) of s 299 of the Companies Act 1981, and conspiracy, contrary to s 86(1)(a) of the Crimes Act 1914, to commit offences against those sub‑sections. Paragraph (d) is as follows:
(d)The purpose of the investigation is:
(i)to ascertain whether any or what relevant offences (including any offence deemed to be a relevant offence pursuant to s 4(2) of the National Crime Authority Act 1984) have been or are being committed against the laws of the Commonwealth or of a Territory;
(ii)to identify the offender or offenders;
(iii)to assemble evidence that would be admissible in the prosecution of offenders; and
(iv)to furnish the evidence to the Attorney‑General of the Commonwealth of Australia or of a State or Territory or the relevant law enforcement agency for the prosecution of those offences.
By notice dated 5 September 1990 the Minister for Police and Emergency Services for the State of Victoria referred the same matter to the Authority for investigation. The only significant difference between the two notices is that par (c) of the State notice refers to s 229(1), (3) and (4) of the Companies (Victoria) Code (instead of the Companies Act) and conspiracy to defraud at common law (instead of conspiracy under the Crimes Act).
THE SUMMONS
A Commonwealth and Victorian summons issued by a member of the Authority was served on the appellant pursuant to s 28 of the Act and s 17 of the State Act. The summons stated that the Authority was conducting special investigations into the matters that had been referred to it as set out in the two notices, copies of which were annexed. It required the appellant to attend before the Authority at a specified time to give evidence “in relation to the nature of and circumstances surrounding the investment of $52 million by Elders IXL Holdings (UK) Limited (a subsidiary of Elders IXL Limited) in securities in Vicinvest Holding SA in or about July 1988” (“the Vicinvest investment”). The appellant attended at the appointed time and was shown a letter dated 27 October 1987 on the Pratt Group letterhead to Mr Ken Jarrett, and was asked whether he had signed the letter. The appellant refused to answer the question claiming that he was entitled to refuse to answer. As has been said, the presiding member decided that the appellant was not justified in refusing to answer.
THE PROCEEDINGS
The order of review claims that
the Authority has not issued the summons or sought to require the appellant to answer the question for the purpose of investigating any connexion or relationship between the Vicinvest investment and the matter involving the Elders IXL securities
the Authority has thus sought to exercise its power to summon the appellant for a purpose other than for the purpose of the special investigation
the notices of reference do not describe the general nature of the circumstances or allegations constituting the relevant criminal activity for the purposes of s 13(2)(a) of the Act or s 5(3)(a) of the State Act, and there is accordingly no special investigation for the purposes of s 28 of the Act or s 19 of the State Act
because there was no special investigation on foot at the time, the appellant was entitled to refuse to answer the question because the summons was not a valid summons.
The appellant sought orders quashing the Authority’s decision that the claim that he was entitled to refuse to attend and answer the question was not justified, and setting aside the summons. He also claimed a declaration that s 28(1) of the Act and s 17(1) of the State Act do not authorise the Authority to issue a summons requiring him to give evidence in relation to the nature of and circumstances surrounding the Vicinvest investment.
PRIMARY JUDGE’S REASONING
Northrop J identified the three issues raised by the application: the nature and scope of the “matter” referred to in the references, whether the questions about the Vicinvest investment fall within the scope of the “matter”, and whether the references describe the general nature of the circumstances or allegations constituting the relevant criminal activity.
The appellant proposed to call five persons to give evidence and produce documents which were said to be relevant to the identification of the “matter” and the validity of the references. They were Miss King, counsel assisting the Authority at the meeting, two former employees of the Authority and a third party.
His Honour directed that the following question of law be dealt with as a preliminary question at the commencement of the trial:
... whether in order to determine whether the proposed line of investigation falls within the scope of the references granted by the Authority, or any other issues raised by the pleadings, it is permissible to have regard to any of the events which led to their being given, or other matter extrinsic to the references themselves ....
His Honour answered the question in the negative, and said he would give his reasons later. In his judgment dismissing the application his Honour rejected the appellant’s submission that in order to determine the “matter” of a reference it was necessary to examine all relevant material leading to the grant of the reference, including oral evidence and contemporaneous documentary material. After his Honour’s interlocutory ruling on evidence, the Full Court had delivered judgment in National Crime Authority v A1 (1997) 145 ALR 126. His Honour set out a lengthy passage from pp 144‑145 of the report, which he said supported his ruling.
His Honour then rejected the appellant’s submission that an application under s 32 was a hearing de novo of the question whether he “has reasonable cause” to refuse to answer a question, and that the Court would have to determine that question on evidence given at the hearing of the application. His Honour said:
At the hearing the Court is required to decide whether the Authority made its decision within and in accordance with the power conferred upon it. The Court has no power to substitute its decision for that of the Authority. It is not appropriate for the Court to treat the hearing of the application as a hearing de novo.
His Honour then turned to the appellant’s substantive claims. These were:
that the notices do not describe the general nature of the circumstances or allegations constituting the relevant criminal activity;
that the Authority had not exercised its power to summon the appellant to give evidence in relation to the special investigation into the “Vicinvest/Elders matter”;
that if the Authority were authorised to conduct a special investigation into allegations that certain directors of Elders IXL might have committed offences concerning the disposal and/or acquisition of securities in Elders IXL, the Authority had not exercised its powers under s 28(1) of the Act to summon the appellant to give evidence in relation to the special investigation, and
that the Authority had sought to question the appellant in relation to the Vicinvest transaction, which does not relate to the special investigation.
His Honour’s ruling on evidence disabled the appellant from pursuing grounds 2, 3 and 4. His Honour rejected ground 1 in reliance on National Crime Authority v AI.
MATTER
The appellant’s contention is that the nature and scope of a “matter” referred to the Authority pursuant to s 13(1) is not determined by the terms of the notice of reference, but exists independently of the notice. The word “matter” is used in a variety of different ways in the Act. In s 10(5) it appears in the passage “any matter the disclosure of which could prejudice a person’s reputation”. In s 25(8) it occurs in the passage “examine or cross‑examine any witness on any matter that the Authority considers relevant to the special investigation”. In s 28(3) it occurs in the passage “nothing in this subsection prevents the Authority from questioning the person in relation to any matter that relates to a special investigation”. Those contexts are unlike that provided by s 13(1). The word “matter” does not have a uniform meaning throughout the Act.
The appellant claims that ss 9 and 10 support his contention that the “matter” in s 13(1) exists independently of the notice. Section 9(1) lists the IGC’s functions. One of them is to consult with the Commonwealth Minister when he “proposes to refer under section 13 a matter relating to a relevant criminal activity”: par (b). Section 10(1) empowers the Authority to request the IGC to give approval for “a matter relating to a relevant criminal activity to be referred by a Minister or Ministers to the Authority for investigation”. Sub‑section (4A) empowers the Authority to request the Commonwealth Minister to refer to it under s 13 a matter relating to a relevant criminal activity. It was submitted that these provisions show that the matter has an existence before a reference under s 13(1) is in fact made.
Sections 9 and 10 do not in our view support the contention that the “matter” referred to in s 13 has an existence independent of the notice. All that can be derived from s 9(1)(b) is that the IGC has the function of consulting with the Commonwealth Minister in relation to a proposed reference. The very process envisaged makes it impossible to conclude that what the Minister has in mind will be what is in fact referred. The same may be said of s 10(1) and (4A). The matter in the mind of the Authority may not be the same as that approved by the IGC or referred by the Minister. (In this latter respect different considerations may apply to s 9(1)(c) in its operation in relation to s 14. But they do not bear on the scope of s 13).
In our view the nature and scope of the matter referred for investigation is to be ascertained from the notice alone. That is apparent from s 13 itself. The Authority’s power to investigate a matter is dependent on a reference under s 13 being in force. See s 11(2)(a) and s 19. Its charter, and thus the subject matter of investigation, is derived from the notice. The sequence of events the subject of ss 9, 10 and 13 supports the conclusion that the s 13(1) notice is the point at which the matter is defined. The very matter in fact referred may have been proposed and consulted about, but on the other hand, the Minister may, as a result of the consultation, have defined the matter in a way different from that originally proposed. The definitive and only source of information as to the subject referred is the notice by which the reference is made.
Section 13(3) provides further support for the view that the matter is to be identified by the notice. 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. The link between the notice and the power to investigate is made more express by s 14(1), which deals with reference of a matter by a State Minister. Where the Minister has referred a matter to the Authority, and has not by notice in writing withdrawn the reference, the Authority must investigate the matter. Further, it can be inferred, from the fact that s 13(3) contemplates the consideration of a reference by each House of the Parliament for the purpose of determining whether its withdrawal should be approved, that the reference laid before Parliament for consideration is the exclusive repository and description of the matter referred.
The requirement in s 28(2) that a summons be accompanied by a copy of the notice by which the matter to which the hearing relates was referred to the Authority supports the conclusion that the “matter” referred is to be ascertained from the words used in the notice. One of the purposes to be served by a notice of reference is to enable those subjected to the exercise of the Authority’s coercive powers to determine the relevance of acts, documents and things to the special investigation: A B v National Crime Authority (unreported, 3 July 1996) and National Crime Authority v A1 at 145. The relevance of acts, documents and things to the special investigation is determined by reference to the matter referred by the notice.
Such authority as there is in this Court supports the view we favour. In A B v National Crime Authority, which was an application for leave to appeal from an interlocutory decision of Northrop J in the present matter, Jenkinson J, as a member of the Full Court, said:
It was not submitted, although one might be forgiven for suspecting, that identification of the “matter” referred for investigation was to be alleged to be a process separate from, and anterior to, the process of determining what degree of success the draftsman of the notice of referral had achieved in his attempt to describe that matter. The allegations contained in paragraphs 12, 13, 14, 15 and 16 of the grounds of the application evoke the suspicion.
...
Like the statutory provisions under consideration in Mannah v State Drug Crime Commission (1988) 13 NSWLR 43, ss 13 and 28 have in combination the effect of constituting a notice given under s 13(1) the only certain source of information to a person summoned in purported exercise of the power conferred by s 28(1) as to the scope of the special investigation for the purposes of which he is to be questioned under oath. The requirement of s 28(2) that a summons to give evidence at a hearing for the purposes of a special investigation shall be accompanied by a copy of that notice clearly has among its objects the provision to the person summoned of information by reference to which he may form a judgment as to whether the proposed interrogation may be for the purposes of a special investigation and therefore authorised by ss 28 and 30, and as to whether any particular question he may be asked at the hearing is for the purposes of that special investigation.
The precise question now under consideration was examined by the Victorian Court of Appeal in DPP Reference No 2 of 1996 (unreported, 26 September 1997). The first four of the twelve points the subject of the Reference raised the question. It is sufficient to note the first and fourth:
A.Whether the subject matter of a special investigation (referred by notice in writing by the Minister under section 13(1) National Crime Authority Act 1984 (Cth) (‘the Act’)) is to be determined by reference to that notice alone, or by facts, circumstances, and communications which preceded it?
...
D.Is the ‘matter’ referred to the National Crime Authority under section 13(1) of the Act to be ascertained from the notice in writing given under that section alone, or may consideration be given to extrinsic material which forms part of the historical background to the reference?
The Court answered the first question ‑ “By reference to that notice alone” and the fourth question ‑ “From the notice in writing given under section 13(1) alone”. Brooking JA, with whom Winneke P and Tadgell JA agreed, said (at 16):
The first four points the subject of the present reference invite consideration of how “the matter” is to be ascertained where the Commonwealth Minister has made a reference under s 13. Section 13(1) empowers the Minister to refer a matter to the Authority “by notice in writing” to it, and it might be thought that it was clear enough that the matter referred was to be ascertained by reference to the Minister’s notice and that the only question that might arise was whether it was permissible to look at extrinsic material to assist in the interpretation of the notice.
On the same page his Honour referred to the
more fundamental question ... whether the statute has the result that the matter being referred is ascertained before the notice under s 13 is given, the function of the notice being, not to mark out the matter, but only to give formal notice to the Authority of the reference of a matter that has already been marked out. I shall return to this distinction later, saying only at this stage that I entertain no doubt that it is the notice, not some other act or document, that determines what matter has been referred ....
Later, at 24‑25, Brooking JA said:
It seems to me that [Vincent J] acted on the view that the matter referred was to be ascertained independently of the notices, the view taken being that, in this case at all events, and presumably in all cases, the historical background would serve, and should be used, to identify the matter, the function of the notice being, not to act as the determinant of what was the matter referred, but merely to give notice of a matter which had already, by other means, been identified. This may seem, with respect, a somewhat surprising view, but after careful consideration of what the judge said I think that this is what his Honour decided.
His Honour concluded (at 29):
I cannot accept the submission that the matter referred is to be ascertained, not from the notice, but from material that precedes it. It is clear from s 13 and s 11(2)(a) that the matter is referred by the Minister’s notice in writing given under s 13. Mr Judd, senior counsel for the secondnamed respondent, was unable to suggest what was to constitute the authoritative source or sources from which the matter referred was to be derived, either by the Authority or by the recipient of a summons issued under s 28, nor was he able to identify what, under the Act, referred the matter to the Authority if it was not the notice.
We agree, with respect, with his Honour’s opinion. The answers given to the first and fourth questions accord with our analysis of the Act.
EXTRINSIC EVIDENCE
The appellant submitted that evidence as to certain antecedent events and circumstances extrinsic to the notice is admissible to define the relevant “matter”, or alternatively to aid in the construction of the notice. In A B v National Crime Authority Burchett and Whitlam JJ said:
The focus of counsel’s argument was on the construction of the notice under s 13 .... It was urged that an order to secure the production of the documents in question was “necessary” within the meaning of Order 15 rule 15 for the purpose of examining the context of the notice. In our opinion there is much to be said for the view that, in the context of the Act and the purposes it attempts to secure, a notice under s 13 must stand upon its own terms, irrespective of the terms of the documents which preceded it.
Their Honours, however, did not need to express a final view in the point. Jenkinson J, having noted in the passage set out earlier the purpose of the requirement in s 28(2) that a copy of the notice accompany a summons, said:
If the proper construction of such a notice were to be influenced by a consideration of documents to which the person summoned had not access, attainment of the latter object would be prejudiced.
His Honour had earlier referred to s 15AB(1)(i) of the Acts Interpretation Act 1901 (Cth) (as applied to “instruments” by s 46(1)(a)), which permits the court to give consideration to “any material ... capable of assisting in the ascertainment of the meaning of” those parts of the instrument that are obscure. His Honour assumed, without deciding, that a s 13(1) notice is an “instrument” within s 46(1)(a), but noted that s 15AB(1) was expressed to be “Subject to sub‑section (3)”, which is in part as follows:
In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act ....
His Honour went on to say that it seemed to him to be very unlikely that at the trial Northrop J would be persuaded to call in aid of his construction of the notices any extrinsic material.
In the DPP Reference at 17 Brooking JA referred to the “sound reason” Jenkinson J had given for concluding that, if s 46(1) applied to a notice of the kind in question, the court should decline to give consideration to any material under s 15AB(1). However, Brooking JA answered the question left open by Jenkinson J, and held that a s 13(1) notice is not an “instrument” within the meaning of s 46(1). The expression used in s 46 ‑ “any instrument (including rules, regulations or by‑laws)” ‑ should be regarded as confined to subordinate legislation. He said that there is nothing legislative about a notice under s 13; the giving of the notice is a purely executive act.
Brooking JA then considered the matter apart from s 15AB (at 19‑20):
It would lead to highly inconvenient results if it were to be held that recourse could be had to preliminary materials for the purpose of interpreting a notice given under s 13. In the first place, I should find great difficulty in formulating rules, either about the circumstances in which recourse to relevant material was permissible or about what was capable of constituting relevant material (bearing in mind always that the intention to be sought was that of the Minister). In the second place, I see great virtue in the simple view that one must seek the intention of the Minister with regard to what constitutes the matter within the four corners of the written document which is the formal expression of his will. The Authority can then have no doubt about what constitutes its charter for the purposes of the investigation, nor can those who will be affected by its compulsive powers. It is of great importance here that s 28(2) requires a summons to appear at the hearing to be accompanied by a copy of the notice under s 13 referring the matter to the Authority. If the notice is the self‑contained charter of the Authority, witnesses summonsed under s 28 will be in a very much better position to assess their rights for the purposes of the hearing in the light of the subsequent provisions of the Act than if recourse may be had to preliminary material, possibly of doubtful import and standing and in any event not available to them.
His Honour referred with approval to the observations of the members of the Full Court in A B v National Crime Authority, of Heerey J in MFI v National Crime Authority (1991) 5 ACSR 353 at 359 and of the Court of Appeal of New South Wales in Mannah v State Drug Crime Authority (1987) 13 NSWLR 43 at 48‑49 and 53‑55. In each of those cases the court referred to the assistance the notice may afford the person summoned to give evidence. See also National Crime Authority v A1 at 145.
We respectfully agree with Brooking JA’s view that, for the reasons he gave, evidence is not admissible to aid in the construction of the notice. It accords with the views that have been expressed, although in some cases only tentatively, in this Court. It accords also with the view that has been taken in this Court of one of the reasons behind the requirement in s 28(2), and by the Court of Appeal of New South Wales of one of the reasons behind the comparable provision considered in Mannah.
AUTHORITY’S PURPOSE ‑ ADMISSIBILITY OF EVIDENCE
In ruling that the appellant was not justified in refusing to answer the question Miss King set out the factual matters that in the Authority’s view demonstrated the connection between the references and the matters the subject of the summons. She said the Authority suspected that the Vicinvest investment was made in furtherance of the objectives of certain directors of Elders IXL to effect a management buy‑out of Elders IXL, and that the investment was suspected to have been a payment from the funds of Elders IXL authorised by and made on behalf of certain directors of Elders IXL. In its Reply to the Authority’s Defence, the appellant asserted that the Authority did not in fact hold the suspicions so stated.
Had the case been conducted in accordance with the pleadings, evidence would have been admissible to show that the Authority did not hold the suspicions Miss King asserted. But that was not how the case proceeded. When referring to the connection made by Miss King between the Vicinvest investment and Elders IXL, Dr Buchanan QC, who appeared for the applicant at the trial, submitted that the suspected link was “not in fact what the investigation is pursuing at all”, and that “the connection advanced ... is trotted out to justify an investigation of possible offences that have nothing to do with the sale or acquisition of any shares in Elders IXL”. Thereupon Northrop J asked whether this was a suggestion of mala fides. Dr Buchanan said it was not; that the claim was that the investigation upon which the Authority was engaged was outside the matter that had been referred. “It is a lack of power rather than a want of good faith”. Later he disavowed any suggestion of impropriety on Miss King’s part, and affirmed that the claim was that the Authority “is ... acting for an improper purpose or a purpose outside the special investigation and does not involve impropriety on the part of either Miss King or Mr Walters”. Mr Walters was counsel assisting the Authority at the meeting.
Northrop J had directed that witness statements be prepared by the appellant for the purposes of his ruling on admissibility. His Honour did not expressly deal with the admissibility of the evidence proposed to be given. He appears to have treated it as excluded by his answer to the preliminary question. In our view, evidence which was relevant to the improper purpose contention would have been admissible. Its admissibility was not resolved by the answer to the preliminary question. Accordingly it is necessary for us to decide whether the evidence was relevant to the improper purpose contention.
The evidence proposed to be called from Miss King repeated part of her ruling about the Authority’s suspicions. This added nothing to Miss King’s ruling, the whole of which was in the transcript which was in evidence. It did not bear on the existence of any improper purpose in the sense asserted by Dr Buchanan. Mr Walters was to say that he asked the appellant the question about the letter, and that the Authority had the suspicions set out in Miss King’s statement. That evidence did not bear on any question of improper purpose on the part of the Authority. It was already before the Court in the transcript of the proceeding. Mr Walters’ statement contains nothing that suggests that he had any purpose for asking the question other than that outlined by him before the Authority. Mr Henry Bosch’s statement records that in 1989 he sent a letter to the then Chairman of the Authority about an investigation that the National Companies and Securities Commission, of which he was then Chairman, had conducted into the circumstances whereby control of Elders IXL had been gained by Harlin Pty Ltd, a company associated with the Chairman of Elders, Mr Elliott, and other Elders executives. At the time of sending the letter he was not aware of any allegations concerning a fee paid to interests associated with Mr Pratt. Mr Bosch was never a member of the Authority or employed by it. What he did or knew in 1989 was not shown to have any possible bearing on the suspicions held by the Authority when the question was asked of the appellant in September 1995. The evidence proposed to be called from him was irrelevant to any question of improper purpose the Authority may have had in mind in 1995. Mr Bateman was employed by the Authority until 1991. He was to say that as a result of investigations carried out in 1990 the Authority suspected that the Vicinvest investment was a fee paid to Mr Pratt for assistance provided by him in relation to the BHP takeover in 1986. The Authority was concerned to investigate whether the “investment” might involve a criminal offence. What an employee of the Authority discovered or suspected in 1990 was not shown to have any possible bearing on any improper purpose the Authority may have had when the question was asked in 1995, and was not relevant to that question. The Authority consists of the persons described in s 8 of the Act. Of the witnesses proposed to be called, only Miss King was a member. Mr Livermore was employed by the Authority until, it seems, 1991. He was to give evidence about investigations into the Vicinvest investment. He was to say that the Authority’s concerns about the legality of the investment did not depend upon establishing that the transaction was related to the later transactions whereby Harlin gained control of Elders IXL. For the reasons given in relation to Mr Bateman, that evidence was irrelevant.
DOES VICINVEST FALL WITHIN SCOPE OF REFERENCE?
In National Crime Authority v A1 at 145 von Doussa and Sundberg JJ said that the Authority should not be regarded as acting outside its charter “so long as it bona fide seeks to establish a relevant connection between certain facts and the subject matter of the reference, and that connection is one that is reasonably capable of being related to the purpose for which the power is conferred”. The notion of “relevance” in the context of an investigation is much broader than it is in adversary litigation. Indeed “relevant” may not be the correct word to use to describe the required connection between facts, events, documents or testimony and an investigation under the Act: National Crime Authority v A1 at 136‑138. In the course of her ruling on the question Miss King set out the relationship “between the references and the matters the subject of the summons”, and was satisfied “that there is the required connection between the references on the one hand and the line of inquiry presently being pursued on the other”. The sequence of events was outlined on the basis that it was kept within the confidential confines of the hearing, and we will not set it out. Miss King correctly directed herself as to the nature of the required connection between the references and the question, and it cannot be said that she could not reasonably have arrived at the conclusion she did. Cf Douglas v Pindling [1996] AC 890 at 904. We note that in AB v National Crime Authority at 12 Jenkinson J, having examined Miss King’s reasons for her conclusion that the Vicinvest investment was connected and related to the matter referred, said that those reasons were “persuasive to that conclusion”.
VALIDITY OF NOTICES OF REFERENCE
The appellant contended that the notices are invalid because they do not refer a “matter” for the purpose of s 13(1), and do not describe the general nature of the circumstances or allegations constituting the relevant criminal activity for the purposes of s 13(2)(a). The complaints were
that there was no time frame for the “transactions concerning ... the disposal and/or acquisition of securities in Elders IXL Limited”
that the transactions in question included those having an indirect (as well as a direct) relationship to the disposal and/or acquisition of securities in the company
that the phrase “in relation to” were words of wide import which exacerbated the uncertainty created by the words “directly or indirectly”
that the description of the conduct constituting the relevant criminal activity did little more than adopt the language of s 229(1), (3) and (4) of the Companies Act
that the word “security” was capable of more than one meaning.
It was also submitted that a notice which defines a matter cannot do so by reference to the description required by s 13(2)(a). It was said that the “matter” and the “general circumstances” must be separately described, as is expressly required by s 25 of the New South Wales Crime Commission Act 1985 (NSW) as a result of the amendments made after Mannah v State Drugs Crime Commission.
In National Crime Authority v A1 von Doussa and Sundberg JJ held at 139‑140 that the specification of a time frame is not required in order for a reference to describe the general nature of the circumstances or allegations constituting the relevant criminal activity. Black CJ, who dissented on that point, said at 130 that in some cases “the context of allegations of criminal activities may be such as to fix them within a time frame”. That is the case with the present notices. The Commonwealth reference refers to offences under s 229 of the Companies Act 1981 and conspiracy to commit those offences. That Act was only in force for a ten year period. The Victorian reference specifies offences against s 229 of the Companies (Victoria) Code. That too was only in force for the ten years from 1981. It is true that this reference refers to “conspiracy to defraud, contrary to common law”. Read in isolation, the conspiracy could have gone back as far as 1962, when Elders IXL came into existence. But read in context, fairly and not perversely, it is clear that the conspiracy is something arising out of the same matter as that which constitutes the breaches of s 229. In the case of the Commonwealth reference, s 86(1)(a) of the Crimes Act 1914 (Cth) picks up the s 229 offences, and in the case of the State reference, common law conspiracy to defraud is relied on instead.
The time frame is further narrowed by the fact that the definition of “relevant offence” in s 4(1) of the Act excludes offences the time for the prosecution for which has expired. The references designate only offences a prosecution for which must be commenced within five years (s 229 offences), and conspiracy to commit those offences, which in practical terms is subject to the same limitation. In practical terms therefore, what is being inquired into is conduct that occurred within the five years preceding the date of the references.
The words “directly or indirectly”, “in relation to” and “securities” appear under the heading “general nature of the allegations”, the phrase in s 13(2)(a). The first two expressions are indeed wide, and the word “security” does have more than one meaning. But given the nature of an investigation by the Authority (as to which see National Crime Authority v A1 at 135‑136), and the fact that s 13(2)(a) requires only a description of the “general nature” of the allegations, these general expressions do not vitiate the notices. And the fact that an equity lawyer might take out a construction summons to ascertain the meaning of “securities” in a will, does not spell invalidity in a s 13 notice.
The complaint that par (a) of the particulars in the notice recites the language of sub‑ss (1), (3) and (4) of s 229 is not a matter for surprise. The particulars tie the statutory language to the conduct of certain directors of Elders IXL who are said to have engaged in transactions concerning the disposal and/or acquisition of securities in the company. That, in the circumstances, is an acceptable statement of the “general nature of the allegations”.
There is no substance to the contention that a notice cannot define a matter by reference to the description given pursuant to s 13(2)(a). The post‑Mannah legislation in New South Wales, which may require separate descriptions of the “matter” and the general circumstances, cannot govern the construction of s 13. That section does not require the notice to describe (a) the matter and (b) the general nature of the circumstances or allegations. To determine whether a notice refers a matter relating to a relevant criminal activity to the Authority, it is necessary to read the notice as a whole. The “matter” is one “relating to a relevant criminal activity”. The circumstances or allegations in sub‑s (2)(a) are those “constituting the relevant criminal activity”. The “matter” and the “circumstances or allegations” are thus closely linked. A “matter” may only achieve its complete statement as a result of the sub‑s (2)(a) description. But that does not signify, because the question is not whether the notice does four things separately ‑ describe the matter and satisfy the three requirements of sub‑s (2), but whether it satisfies those requirements and refers a matter to the Authority.
It may be noted in passing that the present objection to the notices would have vitiated the notices in National Crime Authority v AI. But no such deficiency was asserted in that case.
On a more general plane, the present notices are more specific than those in National Crime Authority v AI, which survived a vast array of challenges. There s 13(2)(a) was satisfied by a reference to “members of certain clubs” or “persons associated with the members or clubs”. Here the field is limited to the activities of certain directors of a named company, and the activities are confined to transactions concerning the disposal and/or acquisition of securities in that company. In National Crime Authority v A1 the activities covered most of the matters described as offences in par (d) of the definition of “relevant offence”. Here, the offences in question are limited to offences against three sub‑sections of s 229 of the Companies Act or the Companies Code, and conspiracy to commit those offences.
Reliance was placed by the appellant on Mannah. That case is examined and explained in National Crime Authority v A1 at 141‑143. What is said there distinguishes Mannah from any case arising under the Act.
NATURE OF A REVIEW UNDER S 32(2)
Before the primary judge the appellant contended that the review contemplated by s 32(2) is a hearing de novo. The respondent contended that it was in the nature of a review under the Administrative Decisions (Judicial Review) Act 1977. The contentions related to the admissibility of the evidence discussed under a previous heading. Before us the precise label to be attached to the review did not loom so large. The respondent accepted that relevant and admissible evidence could be led on the review, but contended, correctly in our view, that on the review the Court was not in the same position as the Administrative Appeals Tribunal under the Administrative Appeals Act 1978. Section 32(2) and (4) and s 57 of the Act would seem to make that clear. In the end it does not appear that there was any dispute between the parties as to the nature of the review. Rather they were in dispute as to the relevance of the evidence that the appellant sought to call.
CONCLUSION
The appeal should be dismissed with costs.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of their Honours Black CJ, Sundberg and North JJ
Associate:
Dated: 12 June 1998
Counsel for the Appellant: A C Archibald QC and P Collinson Solicitors for the Appellant: Clayton Utz Counsel for the Respondent: M S Weinberg QC and B E Walters Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 April 1998
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