CXXXVIII v Australian Criminal Intelligence Commission
[2018] FCCA 2400
•31 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXXXVIII v AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION & ANOR | [2018] FCCA 2400 |
| Catchwords: ADMINISTRATIVE LAW – Application for Judicial Review – Australian Crime Commission – special investigation – federally relevant criminal activity – determination of the Board – conceded first summons issued by examiner invalid by reason of attachment of incorrect superseded determination – whether second summons and notice to produce issued by examiner invalid – improper exercise of power – notice to produce required production of electronic communication devices – whether notice to produce impossible to comply with due to its incoherence – whether requirement to produce thing unfair in nature – whether invalid first notice to produce renders second notice invalid – whether extent of determination unreasonably broad – lack of specificity of determination – whether more particulars of matter to be investigated required to be provided – abuse of process – mobile phone seized pursuant to invalid notice to produce – unreasonableness – re-exercise of administrative power. |
| Legislation: Australian Crime Commission Act 2002, ss.4; 7; 7A; 7B; 7C; 21A; 24ABA(1); 28 |
| Cases cited: Crowley v Murphy (1981) 34 ALR 496 George v Rockett (1990) 170 CLR 104 Egglishaw v Australian Crime Commission (No 3) (2009) 259 ALR 458 Melbourne City Investments v Treasury Wine Estates Limited [2016] FCA 787 XCIV v Australian Crime Commission (2015) 234 FCR 274 Lx v Commonwealth (2016) 338 ALR 667 XX v Australian Crime Commission (No 3) (2016) 335 ALR 180 XXVII v Commonwealth [2017] FCA 321 National Crime Authority v A1 (1997) 75 FCR 274 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 |
| Applicant: | CXXXVIII |
| First Respondent: | AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION |
| Second Respondent: | JEFFREY ANDERSON |
| File Number: | ADG 257 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 6 July 2018 |
| Date of Last Submission: | 6 July 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 31 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Abbott QC with Mr Jacoby |
| Solicitors for the Applicant: | Patsouris & Associates |
| Counsel for the Respondents: | Ms S Maharaj QC |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed 26 June 2018 is dismissed.
The applicant pay the respondents’ costs to be agreed and failing agreement as taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 257 of 2018
| MR CXXXVIII |
Applicant
And
| AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION |
First Respondent
And
| JEFFREY ANDERSON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In June of 2018, the applicant, who has been anonymised in these proceedings by the use of the pseudonym CXXXVIII, was served with summonses and related notices to produce, issued by the third respondent, Jeffrey Anderson.
The summonses are related in nature. As will appear in due course, it is conceded, by the respondents that the first such summons is defective in nature. However, it is contended that no such defects apply to the second summons and its related notice to produce.
Mr Anderson is an examiner of the Australian Crime Commission.[1] The summonses required CXXXVIII to attend at the ACC, on specified dates, (26 June 2018 & 3 July 2018 respectively) to be examined, before Mr Anderson, in respect of a special investigation being carried out by the Commission as a consequence of separate but related determinations issued by it, pursuant to the provisions of the Australian Crime Commission Act 2002 (Cth).[2]
[1] Hereinafter referred to as “the ACC” or the “Commission”
[2] Hereinafter referred to as “the Act”
The notices to produce each required the applicant to produce to the Commission the following things in the applicant’s possession, custody or control:
“1. All electronic communications devices (whether currently used or not) including but not limited to Blackberry devices, tablet computers (such as I-Pads), desktop and laptop computers.
2. All mobile telephone handsets and sim-cards.”
The applicant seeks the judicial review of decisions made both by the ACC and Mr Anderson relating to the issue of the relevant summonses and notice to produce, pursuant to the provisions of section 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
In particular, the applicant challenges the issue of the summonses and notices to produce issued to him and the legality of the determination of the ACC, which founded their issue.
Concurrently with his application, he seeks orders in the form of declaration, that the relevant summonses and the determinations which found them are invalid. If such orders are made, he seeks an injunction restraining Mr Anderson from examining him or requiring him to produce the various items sought.
Background
The ACC is established by section 7 of the Act. Its functions are listed in section 7A and include the following:
·To collect criminal information and intelligence;
·To undertake, when authorised by the Board, intelligence operations;
·To investigate, when authorised by the Board matters relating to federally relevant criminal activity.
The Board of the ACC 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 and Australia Customs. In summary, the Board consists of all the various heads of each of the senior law enforcement agencies, operating at both State and Federal level, within Australia.
The functions of the Board are delineated in section 7C of the ACC Act. They include the following:
·To authorise the ACC to undertake intelligence operations or to investigate matters relating to federally related criminal activity;
·To determine, in writing, whether any such operation is to be designated a special operation.
The expression federally relevant criminal activity is 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.
The expression special ACC operation-investigation is also defined in section 4 and means:
(a) an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or
(b) an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.
Pursuant to section 7C(3) the Board may by written determination direct that an investigation, into a federally relevant criminal activity, be designated a special investigation. But before doing so, it is required to consider whether ordinary police methods are likely to be effective at disrupting or preventing the criminal activity in question.
In addition, pursuant to section 7C(4) any determination issued by the Board must:
(a) describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and
(b) state that the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and
(c) set out the purpose of the operation or investigation.
On 26 June 2018, CXXXVIII was met by members of the Commission, at Adelaide Airport, where he was served with a summons (hereinafter referred to as “the first summons”), issued pursuant to a determination of the Board designated the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) 2013 (hereinafter referred to as the “the 2013 High Risk Criminal Targets Determination”). Mr Anderson had issued the first summons at 3.19pm on the previous day.
The applicant was further advised that he needed to attend at the ACC at 2:00pm that afternoon. The first summons was endorsed with the direction that he was to appear forthwith at the premises of the ACC in Adelaide. It had attached to it a copy of the 2013 High Risk Criminal Targets Determination”, which had been executed by a former Chair of the ACC, Mr Negus, on 4 September 2013.
This determination authorised the ACC to investigate specified criminal activity until 30 June 2016. The criminal activity authorised to be investigated involved high risk criminal targets, which were defined as being involved in criminal activities across state borders and amongst other features to have a high degree of resilience to disruption by law enforcement agencies.
Pursuant to a notice to produce, served on him at the same time, the applicant was told he was required to surrender his mobile telephone, which he did. The notice to produce was issued pursuant to the same determination, which had been attached to the first summons.
The power to issue a summons to appear depends on section 28 of the Act. The relevant portions of which read as follows:
(1) An examiner may summon a person to appear before an examiner at an examination to do either or both of the following:
(a) give evidence;
(b) produce any documents or other things referred to in the summons;
if the examiner is satisfied that issuing the summons is:
(c) in all cases--reasonable in all the circumstances; and
(d) in the case of a post-charge, or post-confiscation application, summons--reasonably necessary for the purposes of the relevant special ACC operation/investigation even though:
(i) the person has been charged or the confiscation proceeding has commenced; or
(ii) that charge or proceeding is imminent.
(1A) The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:
(a) before the issue of the summons; or
(b) at the same time as the issue of the summons.
(2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.
(3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.
The power of an examiner to produce is created by section 21A of the Act, the relevant portions of which read as follows:
(1) An examiner may, by issuing a written notice served on a person, require the person:
(a) to attend, at a specified time and place, before an examiner or member of the staff of the ACC; and
(b) to produce to that person at that time and place a specified document or thing relevant to a special ACC operation/investigation;
if the examiner is satisfied that issuing the notice is reasonable in all the circumstances.
Note: The examiner may need to include a notation in the notice (see section 21B).
(2) The examiner must record in writing the reasons for the notice. The record must be made at or before the time the notice is issued.
The applicant commenced the current proceedings on 27 June 2018. Clearly this was after the date specified in the first summons for his examination. The examination in question did not take place. In the intervening period, a further summons (hereinafter referred to as “the second summons”) and a related notice to produce were issued. As indicated above, the second summons envisaged CXXXVIII being examined on 3 July 2018 by Mr Anderson.
Initially, the proceedings were made returnable on 26 July 2018. However, on 29 June 2018, a further application was made seeking an urgent hearing to pursue injunctions restraining Mr Anderson from firstly examining the applicant, at the hearing scheduled for 3 July 2018 and secondly, to prevent him (Mr Anderson) from accessing the mobile telephone, which had been seized at the Adelaide airport on 26 June 2018.
As indicated above, it is a requirement of a summons issued pursuant to section 28 that it be accompanied by a copy of the relevant determination of the Board that there is a special operation or special investigation on foot, relating to a federally relevant criminal activity.
The second summons had attached to it a determination of the Board dated 8 June 2016, which had been executed by its then Chair, Mr Golvin, on this date, which was designated the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) Amendment No 1 of 2016 (hereinafter referred to the “Amending Highest Risk Determination 2016”).
It is the position of the ACC that the first summons was issued in error as it attached a determination of the Board, which was no longer current, as it had been superseded by a later amending determination, which bore a related title.
The second summons and notice to produce were served on CXXXVIII at the offices of his solicitors, on the afternoon of 28 June 2018. At the time, officers of the ACC attempted to return the mobile telephone earlier seized from the applicant, pursuant to the first notice to produce and then re-seize it pursuant to the second notice to produce issued pursuant to the Amending Highest Risk Determination 2016.
Also present at the meeting was CXXXVIII’s legal representative, who advised the relevant officers of the ACC of his client’s intention to draw up necessary documents to challenge the issue of the first summons in this court, on the basis that the determination attached to it had expired and therefore it was invalid.
In these circumstances, the applicant was not inclined to accept the return of the telephone and then have it re-seized pursuant to the second notice, given his mooted challenge to the first notice. In general terms, the applicant contends that this action was tantamount to a charade and represents an abuse of process. The immediate deadlock was broken by the third respondent undertaking not to examine the telephone until such time as these proceedings had been resolved.
More significantly, the applicant contends that declarations be made that both the second summons and second notice to produce are invalid on the basis that their issue does not comply with the provisions of the Act and the nature and scope of the determination, on which they are based, is too broad and, as such, represents an abuse and/or an improper exercise of power.
Given the basis of the applicant’s challenge to the legality of the decisions made respectively by the ACC and Mr Anderson and the requirements of section 28(2), the determination of the Board regarding the declaration of a special investigation are central to the matters to be dealt with by the court in this case.
In this context, it is the submission of counsel for the applicant that the only protections available to his client, from the broad investigatory and interrogatory powers of the ACC are contained in this section.
Firstly, any recipient of such a summons is required to be informed of the nature of the intelligence operation, which has been designated a special operation or that it relates to a federally relevant criminal activity.
Secondly, all such summonses must be informed, as far as is reasonably practicable, the general nature of the matters in which the summons recipient is to be questioned, unless there are sufficiently special circumstances, which would result in the prejudice to the inquiry concerned.
It is the position of counsel for the applicant that the second summons and the determination attached to it are too broad in nature to satisfy the protections provided by the legislature in section 28(2).
The second summons
The second summons requires the applicant to attend before an examiner, on a specified date (3 July 2018), at premises in central Adelaide. The summons further informs him that he is required to give evidence, in relation to matters of the following general nature, which are said to be related to a federally relevant criminal activity and which may include the following:
·Serious drug offences, which are punishable by imprisonment for a period of three years or more, pursuant to Part 9.1 of the Schedule to the Criminal Code Act, 1995 (Cth). This section of the schedule is headed Serious Drug Offences and its purpose is to create offences relating to drug trafficking;
·Dealing with money or property contrary to various specified sections of the Criminal Code, which appear in Division 400 which is headed Money Laundering.
The attached determination indicates that it commences immediately after it is made and is an amendment to the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No2) 2013, which was the determination erroneously attached to the first summons issued to CXXXVIII. This first determination is also attached to the second summons.
The first determination authorised the ACC to investigate specified criminal activity until 30 June 2016. The amending determination, dated 8 June 2016, extends the authorisation from that date until 30 June each year thereafter. It is posited on the basis that the Board of the ACC considered whether ordinary police methods of investigation were likely to be effective.
As indicated above, the first determination as extend indefinitely by the second determination is directed towards the investigation of High Risk Criminal Targets. The purpose of the investigation mounted under the determination is to collect and analyse criminal intelligence and information about such targets and identify the individuals involved in it. It is not possible to identify, from the definition of High Risk Criminal Targets contained in the determination, who specifically these persons are or what is the actual nature of the crimes alleged to have been commissioned or planned by these persons.
Counsel for the applicant relies on the open-ended nature of this authorisation to support his submission about the unwarranted scope of the determination in question. It is further contended that the determination itself is too broad in its terms and is therefore invalid.
The applicant further contends that the second summons does not comply with the provisions of section 28(1)(c) of the Act in that there is nothing appearing on the face of the issued documents to indicate that the issue of the summons was reasonable in all the circumstances.
It is further contended that the second summons and notice to produce do not comply with the provisions of section 7C of the Act given the breadth and lack of specificity of the determination on which they are based.
Essentially, the applicant contends that the criminal matters listed in the determination are so broad that the applicant is not in a position to determine from it whether the documents served upon him are properly authorised by it.
Finally, it is submitted that the issue of the second summons and notice represent an abuse of process in that the second notice ostensibly requires production of an item already in the control of the ACC.
The applicant’s submissions
The applicant’s documents were hastily prepared. Given the acceptance by the ACC that the first summons was invalid much of its original grounds for review are now otiose. It is the position that CXXXVIII’s challenge to the second summons and related notice are based on three grounds as follows:
(a) A special investigation determination cannot be into disparate and unconnected activities
As previously indicated, the applicant contends that the relevant determination – the Amending Highest Risk Determination 2016 – is too general, too broad and too general in nature to be a valid exercise of the Board’s power conferred by section 7C of the Act.
The starting point for the submission is what was said by Lockhart J in Crowley v Murphy,[3] a case concerned with the issue of a search warrant under the provisions of a criminal statute. Lockhart J noted the need for courts, in their supervisory role, of striking a balance between the entitlements of citizens to be protected from the arbitrary and illegal search and seizure and the interests of the state to secure evidence relevant to the commission of crime.
[3] Crowley v Murphy (1981) 34 ALR 496 at 514
In this context, Lockhart J noted that one of the most important safeguards for the citizen was that “the person charged with the power of issuing search warrants satisfies himself that it is a proper case for the issue of such a substantial interference with a citizen’s liberties.
It is the submission of Mr Jacoby, who argued this aspect of the applicant’s case, that the coercive powers vested in the ACC are significant indeed. In particular, an individual when served with either a summons under section 28 of the Act or a notice to produce under section 21A is likely to have little idea as to why these things have been issued and in these circumstances, it is incumbent that all the protections provided by the legislature be complied with, particularly in terms of the provision of the determination which founds the summons in question to its recipient.
In this context, Mr Jacoby points to the fact that section 28(2) provides that any summons must be:
·Accompanied by a copy of the determination of the Board that there is a special operation; or
·That there is an investigation into matters relating to a federally relevant criminal activity.
Mr Jacoby places particular emphasis on the word matters. It is his contention that the recipient of such a summons is entitled to be provided with some information about the matters actually under investigation by the ACC, which pertain to him or her, the nature of such information being defined by the overall structure of the Act.
The relevant functions conferred on the Board by section 7C include:
·the authority to direct the ACC to undertake intelligence operations into federally relevant criminal activity; and
·the authority to determine that an operation or investigation is special in nature.
Section 7C creates two methods by which determinations involving the coercive powers of the ACC may be issued. Firstly, section 7C(2) permits the Board to determine that an intelligence operation is a special operation. This determination is subject to a consideration of whether what can be summarised as convention police powers would be sufficient to prevent or investigate the federally relevant criminal activity.
Secondly, section 7C(3) the Board may determine that an investigation, again into a federally relevant criminal activity is a special investigation. Both these expressions are defined in section 4. A federally relevant criminal activity involves an offence against a law of the Commonwealth. A special investigation/ACC operation is either an intelligence operation or an investigation into a federally relevant criminal activity.
Essentially, as I understand his submission, Mr Jacoby contends that the determination provided to CXXXVIII does not provide him with sufficient information into the nature of the matter which is the subject of the determination that it is relevant to either some form of special operation or investigation into a federally relevant criminal activity.
Certainly, Mr Jacoby contends CXXXVIII is not in a position to determine from the summons itself whether the matters germane to it are amenable to investigation through conventional police methods, which Mr Jacoby contends is one of the protections the legislature has placed on the ACC’s coercive powers in order to prevent their arbitrary application to citizens.
Essentially, this requires more than the recitation of various pieces of criminal legislation or generic definitions of the characteristics of so-called high risk criminal targets. Rather, it is incumbent on the ACC to give details of the actual matters which are the subject of the determination as it pertains to a particular target of its coercive powers.
In this context, Mr Jacoby likens the determination to a telescope. If it trained on a particular individual, he or she is entitled to know the basis on which it is being done. This flows from the use of the word matter in the context of the expression federally relevant criminal activity.
In Mr Jacoby’s contention, the subject of a summons must be provided with some information about what the particular matter is. That has not occurred in CXXXVIII’s case. Rather to utilise Mr Jacoby’s terminology, he has been provided with a shopping list of serious federally based criminal activity.
On the other hand, Ms Maharaj, senior counsel for the respondents, liken the determination to an umbrella, which once opened, covers whomsoever the ACC has nominated as being necessary of investigation and so subject to its coercive powers. It being the case that it is within the authority of the ACC to determine a matter is beyond the scope of ordinary police investigation and so amenable to its coercive powers.
(b) The notice to produce is incoherent
Pursuant to section 21A(4) a person who fails to comply with a notice to produce commits an offence, which is punishable by up to five years imprisonment. In these circumstances, Mr Jacoby contends that it is incumbent on the issuing authority to ensure that the terms attached to the relevant production are reasonable, in the sense that they are coherent and capable of being complied with.
In the current matter, Mr Jacoby submits that what was actually required to be produced by the applicant, in terms of the actual items specified in the schedule to the relevant notice to produce served on CXXXVIII, was incomprehensible in nature as was the time when those items were to be produced. Was it forthwith or did the notice require something else?
In these circumstances, it is submitted that it was impossible for the applicant to reasonably discharge the obligation placed on him by the notice. Accordingly, the notice to produce did not represent a fair exercise of the power conferred upon the ACC.
This argument is based on two main grounds. Firstly, the applicant was required to attend forthwith upon service before a member of staff of the ACC and produce the specified items at the time and place of service of the documents or things specified in the schedule to the notice. No time other than forthwith was actually specified.
Secondly, the argument that the notice to produce was incoherent in nature is based on what is characterised as the unreasonable breadth of the electronic communication device required to be produced. It included all devices – whether currently used or not.
On the face of its first page, the notice to produce, requires attendance (and by implication production) forthwith upon service. In these circumstances, what is the recipient of the notice required to do in respect of the long list of applicable electronic devices contained on the second page. If it is unclear to the recipient of the notice, as Mr Jacoby contends it is from the document itself, such a notice is too wide in nature of so not authorised by the relevant legislation.
Mr Jacoby contends that the relevant notice, in this case, is impermissibly wide in nature as it conceivably could include electronic equipment not used for decades and could also include device which are the actual property of another person, which for obvious reasons are incapable of immediate production.
In his written submissions, Mr Jacoby contends as follows:
“The fundamental difficulty is that validity and compliance … should be ascertainable at the point of service from the face of the instrument. Instead, the individual is left with a quandary. Does the notice depend on the happenstance of where the person is served … or does it require subsequent action and gathering of other items as it says on its second [page]?”
In the context of the asserted incoherence of the notice to produce, Mr Jacoby relies on what was said by the High Court in George v Rockett.[4] The case was concerned with the circumstances surrounding the issue of a search warrant, by a magistrate, particularly whether a police officer had provided to the magistrate concerned reasonable grounds for his suspicion and belief that documents relevant to the crime being investigated by the officer would be affected by the warrant sought.
[4] George v Rockett (1990) 170 CLR 104
The High Court said as follows:
“Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.”[5]
[5] Ibid at 110 - 111
Besanko J consider George v Rockett in Egglishaw v Australian Crime Commission (No 3)[6] which also concerned a notice to produce issued under the ACC Act. He said as follows:
“A summons issued under s 28 and a notice to produce issued under s 29 interfere with the rights of the citizen and, generally speaking, the courts will insist on strict compliance with conditions governing their issue.”[7]
[6] Egglishaw v Australian Crime Commission (No 3) (2009) 259 ALR 458
[7] Ibid at 464 [23]
For her part, Ms Maharaj submits that the applicant’s argument in respect of these matters can be characterised as an exercise in extreme pedantry. It is her contention that the time frame for production of things, arising under section 21A and what is to be produced must be construed by reference to the operational realities confronting the ACC at relevant times.
(c) Abuse of process/improper exercise of power
The applicant’s case in respect of this issue relies on the factual circumstances of the case, particularly the seizure of the applicant’s mobile telephone, pursuant to the first defective notice to produce and then the issue of the second summons and related notice to produce, within a short time frame.
In this context, Mr Abbott of senior counsel points to the fact that Mr Anderson provided him with an undertaking not to examine the mobile telephone, whilst these proceedings were instituted. However, the only purpose, which can be inferred from the issue of the second summons and related notice to produce was to enable such an examination. In these circumstances, Mr Abbott contends that the issue of the second set of notices is vitiated by improper purpose.
In order to support his contentions, Mr Abbott relies on what was said by Foster J in Melbourne City Investments v Treasury Wine Estates Limited.[8] In the case, His Honour indicated, in respect of abuse of process that:
“An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve ... Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused’s conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose.”
[8] Melbourne City Investments v Treasury Wine Estates Limited [2016] FCA 787 at [123]
It is Mr Abbott’s contention that the issue of the second summons and related notice to produce were not directed to their ostensible purpose but rather to overcome the defect surrounding the issue of the first, namely the superseded determination on which it was founded and thence secure the examination of CXXXVIII’s mobile telephone in circumvention of the undertaking provided to Mr Abbott.
In this context, Mr Abbott relies on further authority summarised by Foster J in Melbourne City Investments, which indicates that an act of power, ultimately characterised as improper does not have to be the sole purpose of the exercise of power in question. Rather:
“…it [is] sufficient that the predominant purpose for the institution and maintenance of the proceeding is an improper purpose in order to found an entitlement to restrain or terminate the proceeding as an abuse of process. The improper purpose need not be the sole purpose for the institution or maintenance of the proceeding ... [however it is] well established that the onus of satisfying the Court that there is an abuse of process lies upon the party alleging it. [And such onus is] “a heavy one” and that the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.”[9]
[9] Ibid at [121]
It is Mr Abbott’s contention that the initial seizure of CXXXVIII’s mobile phone was illegal, based as it was on the first defective notice to produce. In addition, he extends upon the arguments advanced by Mr Jacobi, regarding the incoherence of the first notice and the impossibility of complying with the strict conditions endorsed on its face.
Firstly, the notice to produce requires production of documents as specified in the schedule forthwith. However the schedule itself enumerates no such documents, only things of an electronic communication nature. Secondly, the requirement to attend forthwith is impossible to comply with and therefore must be regarded as unreasonable.
In these circumstances, Mr Abbott submits that the first notice is bad. It did not provide CXXXVIII with any opportunity to consider the validity of the documents in question, which as a citizen subject to the invasive powers of the ACC, was something to which he was entitled. Rather, in Mr Abbott’s submission, the applicant was unfairly and erroneously told that the effect of the notice was that he was required to surrender his mobile telephone without demur, which was legally erroneous.
Thereafter, Mr Abbott contends that the abuse surrounding the first notice to produce is compounded because Mr Anderson, the examiner, having illegally obtained the mobile telephone in question proceeded to issue the second notice as “a device to somehow resecure the phone in circumstances where he intends that no challenge will be able to made to its second seizure.”[10]
[10] See transcript of proceedings at page 64
It is further Mr Abbott’s contention that the Act provides a clear regime for ACC staff to return seized items [see section 24ABA(1)] by direction of the examiner. Given this regime was not followed in respect of the seizure of the telephone, pursuant to the first notice, he submits that this compounds the abuse of process involved.
No attempt whatsoever was made to return the mobile telephone to CXXXVIII pursuant to this regime, which in Mr Abbott’s submission adds further emphasis to what he would characterise as the artificiality of the situation surrounding the seizure of the telephone in the first place.
On the other hand, Ms Maharaj would characterise what occurred, when the second summons was issued, as being a fresh exercise of the power arising under the provision of the Act downstream and so distinct from the exercise of the power to issue the first summons. In these circumstances, she would characterise the issue of the second summons and related notice to produce as a routine exercise of administrative power, vested in the examiner, to correct what was nothing more than an oversight. Essentially, the exercise of the power to issue the first summons was entirely independent of the exercise of the power to issue the second one, which was based on the correct determination of the Board.
Consideration
Ms Maharaj concedes that the relevant determination of the ACC is extremely broad in its scope. However, given the scope of its functions, conferred by section 7C – in effect to investigate organised crime operating over state borders – she submits that this is understandable and indeed, to a certain extent, inevitable, given the nature and sophistication of organised crime.
As Mr Jacobi observes, there are three possible limitations on the power of the ACC Board to issue determinations under section 7C. Firstly, the determination must relate to a federally relevant criminal activity.
Secondly, it must consider whether ordinary police methods of investigation are likely to be effective in application towards the applicable criminal activity.
Thirdly, pursuant to section 7C(4), the determination must provide some description and purpose of the general nature of the circumstances or allegations which constitute the federally relevant criminal and state the relevant offence but without the need for particularity.
The purpose of the investigation, as indicated in the determination, is analyse criminal information and intelligence relating to high risk criminal targets. The matters to be investigated include federally relevant criminal activity committed before the date of the determination; which may be in the process of being committed; or may, in future be committed.
As previously indicated, the expression high risk criminal targets is defined in open ended terms in the determination, which depends on the an authorised ACC officers suspecting that a person is such a target because one or more attributes are applicable to him or her. Largely, a person becomes a high risk criminal target if the ACC believes so, on reasonable grounds, which grounds, in general terms, are referrable to involvement in organised crime.
In terms of the current determination and the general nature of the circumstances pertaining to CXXXVIII personally, the determination indicates that high risk criminal targets are responsible for a significant proportion of serious and organised crime and thus represent a serious risk to Australia’s national interests.
Again, as indicated above, the allegations of criminal activity involve a non-specific list of serious criminal offences, including some relating to corruption and bribery. It is axiomatically the case the circumstances of any personal allegations made against CXXXVIII, in the determination, are extremely general in nature. In addition, the purposes of the investigation in question are generic in nature relating to the identification and disruption of organised crime.
The essential question for the court is whether the determinations in this matter exceed the powers of the Board, as provided by section 7C, particularly section 7C(1)(c), which confers on the Board the specific power:
“to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity.”
In XCIV v Australian Crime Commission [11] Wigney J discussed consideration relating to the ACC’s High Risk Criminal Targets Determination of 2013. His analysis has been adopted in a number of subsequent decisions of the Federal Court.[12]In my view, there are no obvious defects in His Honour’s reasoning and it cannot be said that the subsequent authorities are “plainly wrong”. As such, I am bound by these authorities.
[11] XCIV v Australian Crime Commission (2015) 234 FCR 274
[12] See Lx v Commonwealth (2016) 338 ALR 667; XX v Australian Crime Commission (No 3) (2016) 335 ALR 180; and XXVII v Commonwealth [2017] FCA 321
In XCIV Wigney J discussed the issue of what onus is created by the requirement that the ACC is required to consider the applicability of ordinary police methods to the matters in which it is interested. On its face, the determination in question indicates that this issue has been considered and it has been determined that ordinary police method are not likely to be effective and therefore a special investigation is warranted.
Wigney J accepted that Board was not required to provide any further reasons as to why it had determined as it did. His Honour reasoning can be summarised as follows:
·The determination in question indicated consideration had been given to ordinary police methods;
·It was not necessary for the Board to call further evidence in respect of this issue. Nor could any inference be drawn from such a failure to provide such evidence.
·The onus is on the applicant to prove that the Board gave no consideration to the issue of the application of ordinary police methods. This can only be done on the basis of inference not suspicion.[13]
[13] See XCIV v Australian Crime Commission (2015) (supra) at 27 [95] – [97]
The more significant challenge to the issue of the determination is the breadth of its scope. In this context, His Honour said as follows:
“The only limit on the scope of the investigation that may be authorised under s 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.”[14]
[14] Ibid at [103] – [104]
Accordingly, the Act only requires the person being summonsed to be informed of the general nature of the matters about which it is intended he will be questioned. It is not necessary for any specific details or dates of offences to be provided. This follows as a consequence of the special or extraordinary investigative powers conferred upon the ACC, which are necessarily broader and more encompassing than those conferred on the conventional police.
In XX[15] Perry J approved the following passages from National Crime Authority v A1,[16] which dealt with the National Crime Authority, a precursor to the ACC:
“An NCA investigation starts with no specific issues or charges. It has only its terms of reference, which may be extremely wide. Its function is inquisitorial, not adversarial. It must pursue lines of inquiry, and in doing so may find that other lines of inquiry appear profitable … Because the NCA is an investigative body, it must necessarily embark on a fishing expedition … Given the nature of an NCA investigation, to say that it is a function of the notice of reference to enable the NCA to ascertain the extent or limits of its powers does not mean that a notice must possess the particularity insisted upon by the primary judge.
… in our view a reference will be valid which states that the general nature of the allegations is that unspecified persons may have engaged in or be engaging in one or more of a list of activities which are relevant offences…”
[15] XX v Australian Crime Commission (supra) at [53] – [55]
[16] National Crime Authority v A1 (1997) 75 FCR 274
In A1, in construing a provision analogous to section 7C, the Full Court (von Doussa & Sundberg JJ) considered that it was appropriate for the court to consider “the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” In my view, these comments are apposite to the current matter, particularly in the context of the statutorily based functions of the Board as set out in section 7C(1).
It is for the Board alone to determine its national criminal priorities and determine what matters of federal relevance will be investigated by the ACC. Its membership is composed of officers at the apex of law enforcement responsibility in Australia. Its remit is wide relating to any federally relevant criminal activity of interest to it.
Necessarily, it is not likely to be helpful to its broad and open ended investigative powers if it is required to provide chapter and verse as to why it wishes to question any particular individual and what form that questioning will take.
To utilise Ms Maharaj’s terminology, the issue of an ACC determination is analogous to the opening of an umbrella, which has the capacity to broad enough to cover and provide protection in respect of many things. The ACC Board determines when such an umbrella is to be opened and what it will cover. However, once opened, it is up to ACC officers to determine where it will go, which may change as conditions and circumstances change from time to time, like the weather, which the umbrella is intended to provide protection against.
In these circumstances, I find that the second determination complies with the provisions of section 7C(4) and does concern a federally related relevant criminal activity. There is no evidence available to me to indicate that the Board did not consider the applicability of ordinary police methods to the matters of interest to it.
The determination itself complies with the requirements of section 7C(4) in respect of the extent of provision of particulars to CXXXVIII of the activities of interest to the ACC. It is not incumbent on the ACC to provide further particulars, which may have the effect of impeding its investigative functions.
In respect of the notice to produce served on CXXXVIII, it is Ms Maharaj’s submission that it should be read sensibly as a composite document and when done so there can be ambiguity about its effect.
Section 21A(1) empowers an examiner to issue a notice in writing, which after service on the person to whom it is directed, requires that person:
·To attend, at a specified time and place before either an examiner or a member of staff of the ACC; and
·To produce to the person nominated in the notice any specified document or thing relevant to the special operation or investigation being undertaken by the ACC.
The first notice to produce, based on the superseded 2013 determination, was issued at 3.25 pm on 25 June 2018. It was served on CXXXVIII, at the Adelaide Airport, at around 12.30 pm on 26 June 2018 by David Simms, who is an investigator employed by the ACC, after he (CXXXVIII) had disembarked from a flight and been asked by Mr Simms to attend at an office at the airport.
Mr Simms deposes as follows:
“As a result of having the notice served on him, the Applicant produced a large Apple i-phone and stated that he was not in possession of any other electronic communication devices.”[17]
[17] See affidavit of David Graham Simms filed 6 July 2018
In my view, this narrative indicates that there was no unreasonable or unfair level of incoherence in respect of the obligations placed on CXXXVIII or any uncertainty on what he was required to do in the circumstances prevailing. In addition, I am satisfied that the first notice, apart from the attachment of the superseded determination, complied with the provisions of section 21A(1).
CXXXVIII was able to attend, then and there, before a member of staff of the ACC, namely Mr Simms and produce a thing designated in the document, namely his mobile telephone. I am satisfied that the expression thing should be given its ordinary meaning as “an inanimate material object or an article”.[18] It is also, axiomatic, in my view, that the Apple i-phone met the descriptor of electronic communications devices.
[18] See Concise Oxford Dictionary
In Egglishaw, Besanko J said as follows in respect of a notice which required production forthwith:
“The ACC Act gives the examiner the power to fix the time for production and this is not a case in which an Act is silent on the time within which a statutory obligation must be performed. In other words, this is a not a case in which the law must imply a requirement that the performance of a statutory obligation must take place within a reasonable time because, under the ACC Act, the examiner has the power to fix the time for performance. However, that does not mean that the examiner’s decision as to the time within which documents or things must be produced is unexaminable. I do not need to examine in detail the grounds upon which an examiner’s decision as to the time for production may be successfully challenged because I am satisfied that “forthwith” was a reasonable time in the circumstances of this case, or at least that the applicant has not established that an examiner could not reasonably take the view that it was a reasonable time.
The documents or things in issue in this case were in the possession of the respondent on 19 February 2004. The applicant was present at an examination on 19 February 2004 and he was accompanied by his senior counsel and by his solicitor. The documents or things were handed to him and then he was served with the notice to produce. He then produced the documents or things in issue. He did not need time within which to locate the documents or things he was to produce and he had the opportunity “on the spot” to obtain legal advice.”[19]
[19] Egglishaw v Australian Crime Commission (No 3) (supra) at 482 [89] – [90]
In my view, these comments are relevant to the current matter. CXXXVIII had his telephone in his possession, when the notice to produce was served upon him. He did not have to leave the airport or make any other inquires to retrieve it. Although it may be the case that potentially he had other “electronic communication devices” available to him, which were not in his immediate possession, this did not affect the immediate application of the notice to produce in question to his circumstances.
As such, in my view, there was no lack of clarity about what the notice required CXXXVIII to do, namely produce his mobile telephone then and there to Mr Simms. In this context, Ms Maharaj submits that it was appropriate for the relevant notice to stipulate production of the thing in question immediately, because of the Examiner’s assessment of the operational reality, which confronted the ACC at the time.
It is her submission, which I accept, that the relevant provisions of the ACC Act, given that it empowers an examiner to determine what is reasonable in respect of the issue of a notice to produce, has the consequence of empowering such an examiner to determine when an item is to be produced, within the context of such operational reality, which may reflect concerns relating to the risk of concealment or destruction of the item in question.
Mr Simms has set out his involvement with CXXXVIII between 26 June and 4 July 2018, during which period the first and second summonses and notices to produce were issued. Mr Simms was involved with the service of both sets of proceedings on CXXXVIII.
As has already been indicated, Mr Simms served the first set of documents, at the Adelaide Airport, on 26 June 2018 and seized CXXXVIII’s mobile telephone, which he took with him back to the premises of the ACC, where it was handed to another officer, Mr Saywell, where it was placed in the exhibits registry. Prior to the telephone’s seizure, CXXXVIII used it to contact his solicitor.
CXXXVIII presented, as directed, at the offices of the ACC, before Mr Anderson, on the afternoon of 26 June 2018. I have been provided with a transcript of the proceedings.[20] The applicant was represented by Mr Abbott, who objected to Mr Anderson examining CXXXVIII on the basis that the summons was invalid. Mr Abbott then drew Mr Anderson’s attention to the fact that the determination, attached to the summons, had expired.
[20] See Annexure DBR 1 to the affidavit of David Brian Richardson filed 5 July 2018
After a short adjournment, counsel assisting Mr Anderson confirmed that the amending determination had not, in fact, been attached to the summons. Mr Anderson indicated that he had the “document on my screen … when I issued the summons.” In answer to the question, from Mr Abbott, “so the document you saw and issued it is not the document that got served?” To which Mr Anderson replied: “In so far as it’s missing the amendment, correct.”
At this stage, Mr Abbott indicated his intention to challenge the summons “in the Federal Court”. Mr Anderson indicated that he would discharge CXXXVIII from any further compliance with the summons. Mr Abbott then made other objections regarding the alleged invalidity of the notice to produce served on his client in respect of its non-compliance with section 21A in respect of production “forthwith” of an unspecified “thing”.
In this context, Mr Abbott indicated to Mr Anderson that his client’s mobile telephone was in the possession of ACC staff and, on this basis, he sought a confirmation that it would remain sealed up and unexamined until the proposed proceedings were finalised. To which Mr Anderson replied: “I’m happy to give you that undertaking in the circumstances.”
Thereafter, counsel assisting indicated the possibility of another summons being issued. The transcript thereafter is not clear, but what is clear is that Mr Abbott indicated he “was not prepared to speculate” about what attitude his client would take to such a course.
Mr Simms further deposes that, on 28 June 2018, he “was tasked to assist in the return of the mobile phone to the applicant … and in the service” of the second summons and notice to produce on CXXXVIII in company of another ACC officer, Mr Saywell. It had apparently been pre-arranged that this process would occur at the offices of CXXXVIII’s solicitor, Mr Patsouris.
Mr Patsouris recorded the various conversations which occurred between him, CXXXVIII and the ACC officers.[21] Mr Patsouris confirmed that, after a request from Mr Saywell, he had arranged for the applicant to attend, at his office, so that the second summons could be served.
[21] See affidavit of Harry Patsouris filed 29 June 2018
Following its service, Mr Saywell indicated that he had been advised by the ACC’s legal officers:
“…to return the said item to you, which we advocate is an apple iPhone plus, I’m unsure what model it is, what version of the iPhone it is that was seized from you under a Section 21A notice on 26 June. Subsequent to attendance at the ACC by Michael Abbott QC on that date, on an undertaking by the Examiner, this item was seized hasn’t been analysed, sorry was secured, hasn’t been analysed and has logged in the ACC exhibits room since that date without any attendance to it. You can see that it has been sealed with ACC seal, signed and dated with the time it was sealed. Our instruction is to return that to you.
In response Mr Patsouris indicated as follows:
“We are not accepting receipt of that. At that hearing you mentioned with Michael Abbott present the Examiner gave an undertaking to Michael Abbott that that item would not be examined and would not be otherwise dealt with until proceedings challenging the validity of the Section 21A notice that had been previously served were finalised and determined. The examiner has not sought to be released from that undertaking that he has given, that undertaking still exists and is still valid in our view. We are not accepting receipt of this, sorry CXXXVIII is not accepting of what’s in that envelope. To avoid the ruse that, put nicely, has been suggested namely that you were going to leave this on the table in my room, and then if CXXXVIII was to leave you would then serve him with a fresh Notice outside of the office and search him and if he did not have it on him that you would then come in …”
Accordingly, Mr Patsouris and CXXXVIII, on the one hand and Mr Simms and Mr Saywell, on the other, were in a Mexican standoff, so far as the telephone was concerned. Clearly Mr Patsouris and his client were unwilling to accept it back, fearing that it would then be re-seized with the effect of releasing Mr Anderson from his undertaking. On the other hand, Mr Simms and Mr Saywell were not in a position to compel CXXXVIII to physically assume possession of the envelope in which the mobile telephone was stored.
In this context, the second section 21A notice to produce was served on CXXXVIII at 15.43 hours on 28 June 2018. It is the submission of Ms Maharaj that CXXXVIII was in a position to gain physical control of the telephone in question by accepting its tender back to him and thereafter comply with the direction contained in the second notice to produce.
In these circumstances, she contends that it cannot be maintained that the second notice to produce was incapable of being complied with by the applicant, although, in practical terms, if he had accepted the telephone back, the overwhelming likelihood would have been that either Mr Simm or Mr Saywell would have immediately re-seized pursuant to the second notice. As indicated above, Mr Abbott contends that this process constitutes an abuse of process.
There is no evidence available to me that Mr Anderson or anyone else has examined the mobile telephone in question. Indeed, in the proceedings before me, counsel for Mr Anderson has indicated her client’s continued adherence to the undertaking, whilst these proceedings play out.
Accordingly, in my view, I am not in a position to draw any inference that the issue of the second summons and related notice to produce, which occurred after Mr Abbott had advised Mr Anderson and his assisting counsel of the defect in the documents served upon CXXXVIII, was some form of ruse, as characterised by Mr Patsouris, to gain access to the telephone in question.
Rather, Ms Maharaj characterises the issue of the documents in question, after the defect in the original summons had been detected, as a fresh exercise of the administrative authority provided by the ACC Act, which occurs downstream and independently of the first exercise of power and is permissible because it is directed solely to the correction of error.
It is clear from the transcript of proceedings involving Mr Abbott and Mr Anderson that the latter believed, when he issued the first summons, which he had viewed on his computer screen, it had with it the second amending determination extending the period of the High Risk Criminal Targets special investigation. It seems clear from what he said that he believed, as a consequence of some administrative error, the actual paper document had not been compiled properly prior to its service on CXXXVIII.
It is Ms Maharaj’s submission that there was no legal impediment to Mr Anderson correct this error and rendering his administrative decision to issue a summons and notice to produce to CXXXVIII legally and jurisdictionally effective, given the contents of section 28(2). In this context, Ms Maharaj concedes that the first summons legally ineffective and was in effect, no summons at all.
This being said, as is clear, it did have the operational consequence of bringing CXXXVIII before Mr Anderson on 26 June and the related notice to produce did have the consequence of securing his mobile telephone. So although all concerned concede that the first summons is clearly bad, it did have initial effect and that effect continued to play out, as the impasse of 28 June between Mr Patsouris and Mr Saywell demonstrated.
In this context, courts reviewing the actions of administrative decision makers have characterised erroneous decisions as being either void ab initio or voidable – the distinction being that in first categorisation the decision has no consequence whatsoever and in the second there is consequence until it is set aside.
In Minister for Immigration & Multicultural Affairs v Bhardwaj[22] Gleeson CJ cited a passage of Finkelstein J in Leung v Minister for Immigration & Multicultural Affairs[23] as follows:
"There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside."
[22] Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 604 - 605
[23] (1997) 79 FCR 400 at 413
In this context, Gleeson CJ said as follows:
“I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it has made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it.”
In this case, as a consequence of the submissions made by Mr Abbott, Mr Anderson accepted that his original decision to issue the summons had miscarried. In these circumstances, he discharged CXXXVIII from attending and provided an undertaking to Mr Abbott. That did not mean he no longer wished to examine CXXXVIII or apply the relevant determination of the Board to the investigation of his activities.
Indeed, Mr Anderson foreshadowed to Mr Abbott that this was not the case. In addition, for his part, Mr Abbott made it abundantly clear that it was highly probable his client would seek to challenge the validity of any subsequent summons served upon him. In my view, it was clear to all concerned that Mr Anderson would re-consider the issue of the summons in question and correct the error.
It is also, I think clear from the evidence, notwithstanding the impasse between Mr Patsouris and Mr Saytell, that the status quo, prevailing after the initial wrongful seizure of the telephone, remained in place between the parties concerned. Mr Anderson allowed CXXXVIII to proceed to challenge the validity of the process against him and agreed to abide his undertaking to Mr Abbott. Indeed the court provided an expedited hearing to this effect. As such, I do not consider that the applicant has been able to demonstrate any abuse of process.
In Bhardwaj Gaudron and Gummow JJ described as helpful the distinction of decisions as being void or voidable. They said as follows:
“…there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.”[24]
[24] Ibid at 614
I have concluded that there is no jurisdictional error pertaining to the second summons and related notice to produce issued to CXXXVIII. Essentially, the defect apparent in the first summons has not vitiated the exercise of administrative authority leading to the issue of the second set of documents. In my view, it would be illogical for the first invalid exercise of power to have the effect of permanently preventing Mr Anderson exercising the jurisdiction conferred upon him to examine persons of interest to him pursuant to the determinations of the Board of the ACC.
Again in Bhardwaj Gaudron and Gummow JJ said as follows:
“… a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.”[25]
[25] Ibid at 616
The administrative authority vested in Mr Anderson concerned not only the rights of CXXXVIII but also the statutory responsibility of the Board of the ACC to determine national criminal intelligence priorities within Australia and to determine what matters should be subject to ACC special investigations.
In these circumstances, I accept that Mr Anderson was entitled to form the view that he had not performed his administrative obligations so far as the Board of the ACC was concerned and therefore he was able to re-exercise the authority conferred upon him, which he did when the second summons issued. The effect of the second summons was to cure the defect arising from the failure to attach the amending and extending determination to it.
In addition, in all the circumstances of this case, I do not consider that the attempt to return and the re-seize the telephone can be characterised as an abuse of process. Essentially, I do not accept that the evidence available to me indicates that Mr Anderson had some ulterior motive for issuing the second notice to produce or in his attempt to have his officers return the mobile telephone to CXXXVIII.
As Forster J indicated in Melbourne City Investments, it is not possible to state exhaustively every incident or category of abuse of purpose. However, in general terms, in the context of criminal investigation, it arises when a law enforcement agency or regulator utilises a procedure surreptitiously or disingenuously for a purpose for which that procedure is not intended or directed towards. The essential ingredient of abuse of process is unfairness, against which a party is entitled to the court’s protection.
I accept that the powers of the ACC are wide indeed. This is as a consequence of the potential implications, for the security of Australia, of serious or organised crime, which the legislature intends the ACC to combat. There is no indication that the failure to physically attach the correct determination to the first summons, served on CXXXVIII, was some form of ruse or device to secure advantage over him.
Thereafter, there is nothing to indicate that the service of the second summons secured some form of unfairly obtained forensic advantage, for the ACC, over CXXXVIII in the exercise of its coercive powers. To the contrary, the applicant’s mobile phone remained seized but unexamined. Mr Anderson had not reneged upon his undertaking. In all these circumstances, I do not consider there has been abuse of process demonstrated in the actions of the ACC through any of its officers.
Conclusion
Accordingly, I do not accept the contention that the relevant determination of the Board, in this matter, is too wide or discursive in its nature and is therefore beyond the jurisdiction invested by the ACC Act. Rather, I accept that the Board properly considered the matters relevant prior the issue of the determination in question and thereafter, Mr Anderson the issuing examiner provided all the information the Act required him to provide to CXXXVIII in respect of the nature of the matters under his investigation.
In addition, I do not accept that the notice to produce in question was incoherent in nature or incapable of being complied with in a reasonable fashion. In the circumstances then prevailing, the direction to CXXXVIII to provide his mobile telephone forthwith was capable of compliance and was not unreasonable.
Finally, although there the first summons was issued without a proper jurisdictional basis, it was capable of being rectified by a subsequent exercise of administrative power by Mr Anderson in the form of the second summons. There are no circumstances of abuse of process surrounding this exercise.
For these reasons, it must follow that the application for judicial review, filed on 27 June 2018 should be dismissed. The respondents seek their costs. In my view, it is appropriate that costs should follow the event.
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 one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date 31 August 2018
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