Apm21 v Lusty
[2021] FCCA 570
•29 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APM21 v LUSTY & ORS | [2021] FCCA 570 |
| Catchwords: ADMINISTRATIVE LAW – Application for interlocutory relief in relation to a summons issued by the Australian Criminal Intelligence Commission (ACIC) – applicant summonsed to give evidence before the ACIC regarding specified criminal activity, as defined in the Special Australian Criminal Intelligence Commission Investigation Determination (Highest Risk Criminal Targets) 2020 – applicant contends the summons and its related determination is invalid as they were too broad in their terms and failed to set out the general nature of the matters in relation to which the applicant was to be questioned – applicant also contends the ACIC board’s determination is affected by jurisdictional error as the scope of the investigation is unable to be ascertained – respondent submits the public interest in the ACIC operating efficiently favours the interlocutory relief being refused – prima facie case – balance of convenience. |
| Legislation: Australian Crime Commission Act 2002 (Cth), ss.4, 7, 7A, 7B, 7C, 28, 46B |
| Cases cited: AA v Board of ACC (2009) 178 FCR 171 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 National Crime Authority v A1 (1997) 75 FCR 274 LX v Commonwealth (2016) 259 A Crim R 1 XCIV v Australian Crime Commission (2015) 234 FCR 274 |
| Applicant: | APM21 |
| First Respondent: | DAVID LUSTY |
| Second Respondent: | AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION |
| Third Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | ADG 31 of 2021 |
| Judgment of: | Judge Brown |
| Hearing date: | 10 March 2021 |
| Date of Last Submission: | 10 March 2021 |
| Delivered at: | Adelaide |
| Delivered on: | 29 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Abbott QC/Mr McDonald SC |
| Solicitors for the Applicant: | Patsouris & Associates |
| Counsel for the Respondents: | Ms Maharaj QC/Mr Tran |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the applicant be anonymised so that the identity of the applicant is not revealed in any documents filed on the court’s portal or otherwise filed with the court, or revealed in any other way, and the name be identified as ‘APM21’.
The application for interlocutory relief dated 12 February 2021 is dismissed.
The interim injunction, made on 10 March 2021 restraining Mr Lusty from proceeding with his examination of the applicant, is discharged.
Further consideration of the matter is adjourned to 15 June 2021 at 9.30am to determine whether a final hearing date should be allocated and to address any related applications of the parties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 31 of 2021
| APM21 |
Applicant
And
| DAVID LUSTY |
First Respondent
| AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION |
Second Respondent
| COMMONWEALTH OF AUSTRALIA |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings, arising at an interlocutory stage, relate to the operation of the board of the Australian Criminal Intelligence Commission,[1] which is an entity created by the Australian Crime Commission Act 2002 (Cth).[2]
[1] Hereinafter referred to as the ACIC or the Commission
[2] Hereinafter referred to as the ACIC Act or the Act
The central issue arising being whether a summons issued by the first respondent, requiring the applicant to give evidence and be examined before the ACIC, is valid. Mr Lusty, the first named respondent is an examiner appointed under the Act and as such a member of the Commission, which is an entity created by the Commonwealth.
The summons, dated 15 January 2021, required the applicant, whose identity has been suppressed, to present himself before Mr Lusty, at the Adelaide premises of the Commission, on 18 February 2021, to be examined about matters relating to “specific criminal activity” which might include any of the following:
·Serious drug offences;
·Dealing with the proceeds of crime;
·Being engaged in or supporting serious organised criminal activities.[3]
[3] These are offences delineated in various provisions of the Criminal Code Act 1995 (Cth)
The applicant commenced these proceedings on 12 February 2021, seeking various orders pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the basis that the summons and the determination of the board, which authorised its issue, are vitiated by jurisdictional error.
In these circumstances, it has been agreed that the appointment with Mr Lusty should be deferred until the court deals, at least provisionally, with the matter. For this reason, the case has been listed urgently before the court.
In brief terms, the applicant claims that the determination is illogical and circular in its terms and therefore renders it impossible for him[4] to know, as he is entitled to do pursuant to the relevant provisions of the Act, what is the nature of the “relevant criminal activity”, about which he is to be questioned by Mr Lusty, and this is legally unreasonable and so beyond the Commission’s jurisdiction.
[4] No inference should be drawn that the applicant is of the male gender. I will refer to the applicant as “the applicant” in these reasons for judgment and utilise male pronouns for ease of reference.
As such, each of the senior counsel retained by the applicant, Mr Abbott QC and Mr McDonald SC, submits that the summons issued is not authorised by the ACIC Act and should therefore be set aside, by this court, to avoid the applicant suffering significant prejudice.
The court is not ruling on this issue definitively at this stage. Rather, it is concerned with whether the Commission should be restrained from utlilising the summons to examine the applicant, until the various complex issues, including some of a constitutional nature, raised in his application for judicial review, have been resolved.
In these circumstances, the applicant seeks orders in the nature of an injunction to prevent Mr Lusty being able to utilise the summons. Ideally this should occur prior to any examination of the applicant being undertaken by Mr Lusty so that the applicant himself is not subject to any prejudice, as a consequence of the nature of any information having been gathered from him or the applicant himself being subject to serious sanction, if he declines to answer questions put to him by Mr Lusty.
From the perspective of both Mr Lusty and the ACIC, it is important and congruent with the general public interest relating to the detection and prevention of serious crimes that the examination take place as soon as is practicable and the examiner is able to put the matters of interest to the Commission to the applicant. This provides the context of the current proceedings.
As a matter of urgency, the applicant seeks an order, in the nature of an injunction restraining Mr Lusty and the Commission from utilising the summons to examine him, until such time as there has been a final determination of the validity of the summons and the various issues raised by him in his originating motion for judicial review.
The respondents resist the injunction and seek to be able to examine the applicant as soon as possible, given what they assert is the urgency of its obligation to protect the public from the effects of serious crime. They are, however, prepared to provide an undertaking not to disseminate examination evidence derived from any examination of the applicant outside the immediate sanctum of the Commission and its officers until the case is definitively resolved.
In all these circumstances, from the perspective of each of the parties, it is imperative that the interlocutory issues be determined as soon as is practicable. It is Mr Lusty’s desire to be able to examine the applicant in either late March or early April of this year.
From the applicant’s perspective, the undertaking offered is inadequate and he fears that any information derived from him will potentially be utilised in ways adverse to his interest, regardless of whether or not his ultimate application is determined in a manner favourable to him.
As such, without the protection of an injunction he fears that any ultimate success he may attain at trial will be rendered nugatory, if an injunction is not granted. These reasons for judgment are directed towards the resolution of this interlocutory application.
Principles applicable to the granting of interlocutory injunctions
The principles germane to the grant of an interlocutory injunction are well established and can be easily summarised. They turn on two considerations.
Firstly, the applicant concerned must establish a prima facie case for the relief sought in the principal litigation. Secondly, the court must consider the balance of convenience. This process consists of the weighing up of the potential prejudice to be occasioned to each of the parties concerned if the injunction is or is not granted.
Necessarily, this latter process must entail some consideration of the strengths and weaknesses of the case of the applicant concerned. It is the respondents’ position that the applicant’s case is a weak one.
This is because it is the Commission’s contention that its powers stem from an exercise of the executive authority of the Commonwealth, which has granted to it wide ranging coercive powers to investigate federally relevant criminal activity.
As such, its contention is that it is not required to provide anything more than general information about matters it is investigating, particularly given that it is highly probable that it itself knows only about suspected criminal activities, in the most general and broadest detail, given the clandestine nature of serious criminal behaviour.
In this context, it is the submission of senior counsel for the respondents, Ms Maharaj QC, that the public interest relating to the efficient conduct of the activities of the ACIC tips the balance in favour of the court rejecting the application for the relevant injunction.
On the other hand the applicant contends that he has established a sufficiently strong prima facie case deriving from what he would categorise as the opaque circular definition of the federally relevant criminal activity, about which Mr Lusty wishes to examine him and which is specified in the summons to which he is currently subject.
In addition, it is the applicant’s contention that if he is examined and effectively coerced to comply with a summons that is later found to have no legal affect, this will cause him potentially irreparable damage and therefore the balance of convenience favours the granting of the injunction concerned.
Applicable legislative framework
The ACIC is established by section 7 of the Act and consists of its Chief Executive Officer, examiners appointed under the Act and other members of its staff. Examiners are appointed pursuant to written instrument and are required to be qualified legal practitioners.[5] There is no controversy that Mr Lusty is appropriately appointed.
[5] See section 46B of the Act
The functions of the ACIC are listed in section 7A of the Act and include the following:
·To collect and analyse criminal information and intelligence and authorise its appropriate dissemination;
·To undertake, when authorised by its board, intelligence operations and any special investigations of the Commission itself.
The board of the ACIC is established by section 7B. It consists of the head of the Police forces of each State and Territory of Australia; as well as the Commissioner of the Australian Federal Police; the Commissioner of Taxation; the Director-General of ASIO; and the heads of ASIC, the ATO and Australian Customs. In summary, the board consists of all the various heads of each of the senior law enforcement agencies, operating at both the state and federal level within Australia.
The functions of the board are delineated in section 7C(1) of the ACIC Act. Of relevance to the current matter, they include the following:
“[T]o authorise, by determination, a special ACC investigation to occur.”
The special ACC investigation is defined in section 4 of the Act and means: “An investigation relating to federally relevant criminal activity that the Board has authorised to occur.” The expression federally relevant criminal activity is also defined in section 4 and means:
“(a) a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or
(b) a relevant criminal activity, where the relevant crime:
(i) is an offence against a law of a state; and
(ii) has a federal aspect.”
Section 28(1) of the ACIC Act authorises an examiner to issue a summons to a person to give evidence before him/her if the examiner concerned is satisfied that it is reasonable for such a summons to issue.
Section 28(3) provides a gloss on the discretion conferred on examiners to issue such summons’ and in particular directs that unless the examiner concerned is satisfied that prejudice may potentially be occasioned to any relevant investigation, any such summons, so far as it is reasonably practical to do so , should set out the “general nature of the matters in relation to which the person is to be questioned.”
It is the position of the applicant that the summons directed towards him has provided not even a general exposition of the matters about which he is to be questioned and the applicable determination of the board authorising the particular investigation about which his evidence is said to be germane is similarly lacking in such specificity.
Pursuant to section 7C(3) of the ACIC Act, the board of the Commission is granted a discretion to authorise a special ACIC investigation to occur. The only specific requirement of such a determination is that it should be in writing.
The special investigation relevant to this occasion arises as a consequence of a determination by the board on 28 July 2020 which is entitled Special Australian Criminal Intelligence Investigation Determination (Highest Risk Criminal Targets) 2020.
This determination is attached to the summons issued to the applicant and is central to the applicant’s contention that the summons issued to him has been unlawfully issued to him because its terms do not allow him to have even the most general notion of what is the federally relevant criminal activity into which the board is inquiring.
In this context, it is necessary to delineate in full the matters which such a determination may identify [section 7C(4)] and the conditions which pertain to any exercise of the board’s jurisdiction to make a determination authorising a special ACIC investigation [section 7C(4A), (4B) and (4C)].
The relevant sub-sections read as follows:
“(4A) The only condition for the exercise of the power under subsection (2) or (3) is that the Board considers, on the basis of the collective experience of the Board members voting at the meeting when a determination is made, that it is in the public interest that the Board authorise the special ACC operation or special ACC investigation to occur.
(4B) To avoid doubt, a determination under subsection (2) or (3) can be made, and has effect, regardless of whether the ACC:
(a) is, at the time the determination is made, already investigating any or all of the federally relevant criminal activity to which the determination relates; or
(b) subsequently investigates any or all of the federally relevant criminal activity to which the determination relates by any means other than through the exercise by an examiner of the powers under Division 2; or
(c) decides to investigate some part of the federally relevant criminal activity to which the determination relates because of a request for assistance by another law enforcement agency.
(4C) A determination under subsection (2) or (3) must, to the extent that the Board reasonably considers appropriate having regard to the level of generality at which it has authorised a special ACC investigation or special ACC operation to occur:
(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity to which the determination relates; and
(b) set out the purpose of the investigation or operation; but, to avoid doubt, the determination is not required to specify:
(c) any particular offence or offences; or
(d) any particular conduct, transaction or person to which the investigation or operation relates; or
(e) any timeframe within which:
(i) any federally relevant criminal activity may have occurred; or
(ii) the investigation or operation must commence or be completed.”
The summons and determination relevant to the current matter
The specific terms of the summons issued to the applicant require him to give evidence in relation to matters relating to specified criminal activity as defined in the applicable determination, namely the Special Australian Criminal Intelligence Commission Investigation of 2020 referred to above.
It is alleged that the interaction of the summons with the determination is circular in nature. This is the primary subject of the applicant’s submissions regarding its invalidity and the basis on which it is submitted that there is a significant issue to be tried.
The relevant determination indicates that it is made pursuant to section 7C(1)(d) and subsection 7C(3) of the Act and relates to specified criminal activity. It further notes that the board requests the Commission to provide its report regarding its various investigations regularly.
The determination also contains a certification that the board considers, on the basis of its collective experience, that it is in the public interest for the applicable special investigation created by this determination to occur.
It is the submission of the respondents that given the self-apparent authority and expertise arising from the combined experience of the various members of the board, the sole condition germane to the issue of such a determination, arising pursuant to section 7C(4A), is readily satisfied. In my view, this is axiomatic.
In respect of whatever obligation resided on the board pursuant to section 7C(4C) and on the examiner pursuant to section 28(3) to provide to the applicant any description deemed appropriate of the general nature of the criminal matters being inquired into, by the Commission, the determination referred to a schedule attached to it, which was designated as containing the specified criminal activity to which the determination relates.
These activities are further defined by clauses 2 and 3 in the schedule, which are respectively designated circumstances and allegations. These in turn reference two specific categories of entity designated as High Risk Criminal Targets and Australian Priority Organisation Targets. These in turn are reduced to acronyms – HRCTs and APOTs respectively.
The general nature of the circumstances said to constitute federally relevant criminal activity, to which the special investigation is directed, are those implied or suggested from information available to the Commission regarding the activities of HRCTs.
In this context, the schedule indicates that HRCTs are:
·Responsible for a significant proportion of serious and organised crime and therefore a serious risk to Australia’s national, economic and business interests and the safety and well-being of the Australian community generally;
·Involved in the trade of illicit goods, such as drugs and firearms, and otherwise enable criminal activity through such activities, such as money laundering; and
·Generally resilient to conventional law enforcement interventions.
In this context, the general nature of the allegations being investigated by the Commission include relevant criminal activity that may have been, may be being, or may in future be, committed by HRCTs in the following ways:
·Serious drug trafficking;
·Breaches of the Customs Act 1901 (Cth);
·Cross border and international fire-arms tracking;
·Offences of violence;
·Tax evasion;
·Dealing with proceeds of crime;
·Theft;
·Identity crime;
·Use of a telecommunication network with intent to commit a serious offence;
·Being engaged in or supporting serious organised criminal activities.
It is the contention of the applicant that the determination does not actually appear to identify any actual circumstances of criminal activity, which the applicant himself might be able to reference in regards to how he is to approach the examination germane to him. Rather, it identifies an open-ended class of information from which circumstances might be, at best, implied or suggested. It is the applicant’s submission that this is not what the ACIC Act contemplates.
As I understand the applicant’s submissions, it is that the determination defines the germane special ACIC investigation by reference to concepts that cannot be known to either the board, any examiner or any person affected by the exercise of powers under the relevant Act because there is no definition of the actual relevant federal criminal activity, within the schedule itself. Rather, the various references to the activities of HRCTs are both indeterminate and unascertainable.
Essentially, given HRCTs are defined to mean “entities” which an ACIC officer has reasonable grounds for suspecting may be engaged in certain specified criminal activity, given the indeterminate list of criminal activities attributed to them in clause 2 and 3 of the schedule, in the submission of senior counsel for the applicant, this is meaningless and circular. As a consequence the determination does not identify any federally relevant criminal activity to which the summons relates and is illogical in its construction.
On the other hand, the respondents contend that, although broad and general in nature, the relevant determination has, on its face, provided sufficient details of the relevant criminal activity to which it refers, adequate to satisfy the requirements of section 7C(4C).
This follows as a consequence of the contents of clause 8 of the determination itself, which reads as follows:
“The specified criminal activity includes offences against:
a) a law of the Commonwealth;
b) a law of a Territory; or
c) a law of a State that has a federal aspect; being offences that:
d) may have been committed before, or may be in the process of being committed on, the commencement of this determination; or
e) may be committed in the future, including at a time after this determination ceases to be in force.”
In my view, this clause needs to be interpreted in the context of the idiosyncratic nature of ACIC Investigations, which necessarily deal with occult criminal activities, which may not yet have occurred and if they have, may not be actually known to law enforcement agencies, even if generally suspected. Necessarily, this state of affairs renders the function of the Commission inquisitorial in nature, rather than adversarial.
An investigation by the ACIC does not start with any specific issues or charges. It has only its terms of reference, which may be extremely wide in nature, as its commencement point. As such, the Commission is entitled to pursue any lines of inquiry, which it considers may be profitable to it and which, in turn, may lead to other avenues of investigation.
Given its investigatory role, the ACIC is required to embark, when a special investigation is called, on an exercise which can be considered analogous to a fishing expedition. Relevant authority has indicated that, given the inquisitorial nature of ACIC investigations, this cannot be a basis for criticism per se. Necessarily such investigations are, by their nature, fishing in nature and this is the intention and purpose envisaged in the enabling legislation. [6]
[6] See LX v Commonwealth (2016) 259 A Crim R 1 at 15 per Besanko J referring to National Crime Authority v A1 (1997) 75 FCR 274 at 294
The analogy utilised by the Full Court of the Federal Court in A1 to explain this concept was of the NCA (the criminal investigatory precursor to the ACIC) becoming aware of a large amount of heroin being trafficked in an Australian capital city. Clearly, such an eventuality was worthy of the investigation of the NCA, given its implications for community well-being and its likely connection to some form of organised crime.
Yet it was likely that the authority would have no knowledge as to the identity of any particular offender concerned or the various transactions involved in leading to the heroin being trafficked in the city concerned when it commenced its investigation.
In these circumstances, the Full Court determined that it was not necessary for any relevant determination to specify the criminal activities to which it was directed in precise terms; provide any precise time-frame in which relevant criminal activities had occurred; or the identity of the persons or entities said to be engaged in the relevant criminal activities or what were the individual transactions of such individuals.
In this context, Ms Maharaj of senior counsel points to the obvious discretionary nature of the authority conferred upon the board, by section 7C(4C), which allows it to describe the criminal activities in respect of which it is interested in whatever general terms it considers appropriate. The only criterion which has to be satisfied is that the board, on the basis of its collective experience considers that there is a public interest in authorising a special ACIC investigation.
In addition and significantly, she points to the proviso contained in subclauses (c) – (e) of section 7C(4C), which pick up the directions provided by the Full Court in A1, namely the board has no obligation to provide any particulars of an offence, identify the individual or individuals of interest to it or specify when any relevant crime has or may be committed.
The evidence of Jason Leigh Halls
The respondents rely on an affidavit of Jason Leigh Halls, who is a senior member of staff of the ACIC, namely national manager for the Commission’s operations in the southern area of Australia. He has deposed as to the Commission’s view that there is a level of urgency in respect of the examination of the applicant by Mr Lusty.
Mr Halls alleges that the applicant is a senior member of a major criminal syndicate which has been engaged in the supply of methylamphetamine in South Australia. In this context, Mr Hall deposes that individuals who are or have been members of the same syndicate have been convicted of serious criminal offences relating to importation of methylamphetamine into Australia; the production of the drug in Adelaide; and of having significant sums of cash attributable to engagement in criminal activities.
In this context, Mr Halls deposes as to his belief that any delay in collecting information, including from the applicant, may compromise the effectiveness of the Commission’s on-going special investigation pursuant to the applicable Board determination. He characterises the timely collection of intelligence as being vital to the relevant special investigation and any delay in its activities as having the potential to compromise its effectiveness.
Conclusions
The main thrust of the applicant’s submission is that he is able to mount a strong prima facie case in respect of the invalidity of the summons directed towards him and the supporting determination turns on what is characterised as the illogical and legally unreasonable nature of the federally relevant criminal activity about which the examiner wishes to question him.
In general terms, it is an inherent requirement of the exercise of any power, conferred on an administrative decision maker, that such power be exercised reasonably. To be exercised reasonably, it must be possible to glean from the relevant decision record “an evident and intelligible justification” for the pertinent decision in question.[7]
[7] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76] per Hayne, Kiefel & Bell JJ
If such an evident and intelligible justification cannot be discerned, the resulting decision can amount to a failure of jurisdiction. However, as Gageler J indicated in Li, the analysis of whether any decision is vitiated by legal unreasonableness, on the basis that it is illogical or irrational in some way, must be determined within limits set by the subject-matter scope and purposes of the statute conferring the relevant decision making authority.[8]
[8] Ibid at [90]
The scope and purpose of the ACIC Act is to be determined by the various functions designated to the Commission in section 7A of the Act. These include the collection, correlation, analysis and dissemination of criminal intelligence. It is an investigatory organisation with an obligation to maintain a data base in respect of criminal activity, specifically through conducting such special investigations as directed by its Board.
Given these powers, the scope of the investigations which the Board may authorise is extremely broad. In XCIV v Australian Crime Commission[9] Wigney J said as follows:
“The only limit on the scope of the investigation that may be authorised under section 7C is that it is into ‘matters relating to federally relevant criminal activity’. The investigation does not have to be any more specific or confined than that. The extremely broad definition of ‘federally relevant criminal activity’ means that the investigation may be very broad indeed. Important also, is the fact that the Determination need only describe the ‘general nature’ of the circumstances or allegations constituting the federally relevant criminal activity. There is no need for specificity or particularity of the sort that the applicant contends is necessary.
It follows that the Determination does not need to identify by name suspected offenders, or detail specific offences, or specify a time frame in which the federally relevant criminal activity occurred, or identify specific conduct by specific persons, or precise transactions for investigation.”
[9] XCIV v Australian Crime Commission (2015) 234 FCR 274 at [103] – [104]
Wigney J further considered that the authority of the Board to determine to hold a special investigation should not be narrowly construed.[10] He further indicated that it was sufficient to satisfy the requirement that any summons refer to some form of federally relevant criminal activity if the relevant summons tied the activities of HRCTs to offences in the list provided in clause 3 of the schedule attached to the summons. He said as follows:
“Turning then to the terms of the Determination, it authorised the ACC to investigate ‘specified criminal activity’ (see clause 4 of the Determination). The term ‘specified criminal activity’ is defined in clause 3 to mean ‘the federally relevant criminal activity described in Schedule 1.’
Clause 2 of Schedule 1 contains a description of the ‘general nature of the circumstances constituting federally relevant criminal activity’ which the Determination authorised the ACC to investigate. The circumstances outlined in clause 2 all relate to particular characteristics of criminal activity engaged in by ‘HRCTs.’ The acronym HRCT is a reference to ‘highest risk criminal targets’. That expression is defined in clause 3 as meaning entities ‘which an authorised ACC officer has reasonable grounds for suspecting’ may have a number of specified attributes. It includes persons who are identified on the National Criminal Target List (NCTL), which is a list of criminal ‘targets’ compiled from intelligence gathered by the ACC and its partners. Entities are included in this list if they are assessed as having certain attributes which mean that they pose a particular threat to the community.
Clause 3 of Schedule 1 to the Determination sets out the general nature of the allegations constituting federally relevant criminal activity. In summary, the allegations in clause 3 mostly involve activities by HRCTs that may fall within a long list of specified offences under a number of Commonwealth statutes, including: the Criminal Code, the Crimes Act 1914 (Cth), the Customs Act 1901 (Cth), the Corporations Act 2001 (Cth), the Financial Transaction Reports Act 1988 (Cth), and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The description of the allegations also includes ‘incidental offences’ that may be connected with the commission of the offences under the listed Commonwealth statutes and ‘other unlawful activities that are related to or connected with these activities [the activities that may constitute offences under the various Commonwealth statutes] and that involve relevant offences against a law of a State that have a federal aspect.’
There could be no doubt that the scope of the investigation authorised by the Determination is extremely broad. It does not, however, follow that the description of the general nature of the circumstances and allegations in clauses 2 and 3 of Schedule 1 does not satisfy the requirement in s 7C(4)(a) of the Act.
The applicant’s submission that the Determination authorises an investigation into any criminal activity is wrong. Whilst the circumstances and activities described in clauses 2 and 3 of Schedule 1 no doubt cover a very broad range of criminal activities, the description is not unlimited. The criminal activities must be engaged in by entities that have particular characteristics and must be related to the commission of certain serious Commonwealth offences, or offences related to or connected with those offences.”[11]
[10] Ibid at [116]
[11] Ibid at [117] – [121]
In my view, these comments are apposite to the circumstances with which I am dealing in the current matter. The relevant federal activity, in respect of which Mr Lusty wishes to examine the applicant is, without doubt, defined in extremely broad terms but this does not necessarily render the summons invalid, given the equally broad terms of section 7C(4) as further qualified by section 7C(4C).
The function, which the Board of the ACIC has assumed in this particular case, was to consider whether any particular entity, because it poses some form of threat to the Australian community, could be considered to be a HRCT and therefore worthy of its special investigation, including the investigation of individuals related to such targets.
In my view, at this prima facie stage, the summons directed towards the applicant has identified a federally relevant criminal activity about which Mr Lusty wishes to examine the applicant in furtherance of the Board’s determination to hold a special investigation. It relates to a HRCT which is believed to have engaged in or to be contemplating engaging in criminal conduct contrary to federal legislation.
In my view, on the basis of authority binding on this court, that is all that is required to be specified in any summons to satisfy the provisions of section 7C of the Act. Accordingly, I consider that the import of the summons and the determination on which it is based is intelligible on its face, particularly when the purposes of the ACC Act is considered.
The summons may be broad. In addition, the determination which authorised its issue may be convoluted in its drafting but that does not, in my view, render it illogical or legally unreasonable. Rather it seems to me to reflect the broad power vested in the Board of the ACC to conduct open ended inquiries into serious breaches of federally directed criminal law.
In these circumstances, I do not consider that the applicant has established that he has a prima facie case that he is entitled to the relief sought by him on the basis that the summons does not identify any federally relevant activity.
Further, on the basis of the evidence of Mr Halls, I am of the view that the balance of convenience favours the respondents given the public interest in ACC investigations, involving as they do the prevention and detection of serious criminal activities, occurring in an efficient and timely manner.
In this context, the following comments of Besanko J in AA v Board of ACC [12] are relevant:
“I recognise that an examination pursuant to an examination summons may represent a substantial intrusion into the life and affairs of a person. However, in relation to the further ground of review, I think the balance of convenience favours refusal of the applications for interlocutory injunctions. The public interest in the examinations proceeding expeditiously is substantial, and it will be affected adversely by the delay occasioned by interlocutory injunctions and the delays associated with the legal proceedings. The delay associated with the latter may be considerable, even if the Court adopts all means available to it to advance the proceedings to an early resolution. The applicant may suffer the inconvenience and costs associated with an examination, but he has the protections provided by s 30(4) and (5) of the ACC Act.”
[12] AA v Board of ACC (2009) 178 FCR 171 at [87]
These sections provide limits on what use can be made in respect of answers provided to an examiner appointed under the Act and in particular prevent answers and documents produced being used in any criminal prosecution of the person concerned.
In these circumstances, the application for interlocutory relief is refused and the interim injunction, made on 10 March 2021 restraining Mr Lusty from proceeding with his examination of the applicant is discharged. I will list the matter for further directions on 15 June 2021 to determine whether a final hearing date should be allocated and to deal with any related applications of the parties.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 29 March 2021
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