Cxxxviii v Commonwealth of Australia & Ors

[2019] HCATrans 206

[2019] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A11 of 2019

B e t w e e n -

CXXXVIII

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

Second Respondent

JEFFREY ANDERSON

Third Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 OCTOBER 2019, AT 9.31 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:  May it please the Court, I appear with my learned friend, MR C. JACOBI, for the applicant.  (instructed by Patsouris & Associates)

MS S.J. MAHARAJ, QC:   May it please the Court, I appear with MR T.M. WOOD, for the respondents.  (instructed by Australian Government Solicitor (SA))

NETTLE J:   Yes Mr Abbott.

MR ABBOTT:   If the Court pleases, this application for special leave raises for the consideration of this Court the extent of the power of the Board of the Australian Crime Commission under the ACC Act to determine that an investigation is a special investigation, and whether a determination, which the Board purported to make in terms of a class or category, which in this determination was called highest risk criminal targets, can thereafter be applied to make special an investigation that was not being undertaken when the determination was made.

In other words, whether the Board of the ACC could validly create an authorisation and determination instrument, which at the time of its creation in September 2013, was not referable to the investigation which was subsequently created in 2017 and which investigation eventually targeted the applicant in 2018.  This was in circumstances where the determination instrument was utilised by the ACC staff as being prospectively applicable to that investigation created much later.

And from that flows a subsidiary issue as to whether, because it is the staff of the ACC that purportedly creates that later investigation by stating in a document created years later, that the proposed investigation they then want to conduct conforms to the requirements of the determination created years in the past, namely that the entity is considered in 2017 or 2018 to be a highest risk criminal target and that the specified activities consist of the offences in the determination, and ‑ ‑ ‑

GORDON J:   Do you accept ‑ do you contend that it cannot be prospective at all?

MR ABBOTT:   The determination?

GORDON J:   Yes.

MR ABBOTT:   I do not say the determination cannot be prospective, it depends what sense we are talking about.  Prospective ‑ the determination, there has to be an authorisation by the Board under section 7C and then a determination, and we say it has to relate to an existing, or contemplated, investigation.

GORDON J:   Of a particular person.

MR ABBOTT:   No, of a particular type. Could I give the Court an example?  I say that it would be within the terms of a determination if it was able to do so to say for the ACC to come along and say that in relation to a particular investigation, we intend to review all shipping containers imported into the Port of Melbourne from Mexico in 2020 and if they gave sufficient detail to the Board as to how they were going to do that, then that would be an investigation that could be covered by determination.

In other words, they could seek both an authorisation and a determination under section 7C(1)(c) and (d) for the Board to authorise and thereafter determine that such an investigation was a special investigation.

NETTLE J:   So it is not prospectivity but specificity that is the criteria?

MR ABBOTT:   Exactly, your Honour.  Exactly.  We do not say that there have to be feet on the ground.  What we do say is that the concept of an investigation under the ACC Act is an investigation which has form and substance, which has boundaries and definitions.  What you cannot have is what we have got in this case, namely, a determination which is so broad, so wide, and so enduring that anything and all manner of matters years down the track must purportedly come within it.  In other words, in one sense, there must be a particular investigation, as the Court has used that word in Strickland.

GORDON J:   So taking up that idea, if it is specificity about ‑ the three characteristics you identified were breadth, width and time, as I understand it, your complaints ‑ so lack of specificity in terms of the breadth, the width and the time.  You would have it narrower, more specific and time‑specific?

MR ABBOTT:   Well, I think it has to be time‑specific.  What we are trying to deal with ‑ what our argument deals with is that if the investigation does not have sufficient form then it is not an investigation within the meaning of what is contemplated by section 7C(1)(c) and (d) of the ACC Act.  In this case, those subsections were used to create a determination, if you like, as an umbrella under which any number of investigations, not created, not formed, not of any substance, but which came into existence years later, could then be applied to that determination.

GORDON J:   Can I just ask you, if you tie that back to the statute you have got a requirement in 7C(1)(c) for the authorisation and then 7C(1)(d) for the determination ‑ ‑ ‑

MR ABBOTT:   Yes.

GORDON J:   ‑ ‑ ‑ and that is, as I understand your argument, a determination without such an operation is, or an investigation is, a special investigation.

MR ABBOTT:   Yes, yes.

GORDON J:   Do you draw support from the particularity of that language, read together with section 7C(3) in relation to special investigation?

MR ABBOTT:   Yes, we do, and we draw the Court’s attention to the definition in section 4 of what is a special ACC investigation, which is ‑ special ACC investigation means, relevantly:

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.

GORDON J:   Is it right that ‑ ‑ ‑

MR ABBOTT:   I am sorry, I could not hear you.

GORDON J:   That is all right.  Is it right that I recall that for the purposes of the Board determining it is a special investigation you need at least nine Board members rather than the majority for the authorisation?

MR ABBOTT:   I think that is right.

GORDON J:   I think under 7G(4), maybe.

MR ABBOTT:   Yes.  Yes, that is correct.  And, of course, if you look at sections like section 18, which talks about the Minister giving directions and guidelines to the Board, section 18(2)(a) refers to the Minister giving directions and guidelines in respect of the particular ACC investigation.

GORDON J:   These determinations are not reviewable?

MR ABBOTT:   No.  Could I refer you to our outline of submissions in the application book page 91, paragraph 10, subparagraph a, where we say:

In the broadest outline, the applicant’s argument . . . [is] that there must be a particular investigation being conducted or envisaged at the time the special determination is made is to be drawn from:

a.        the statutory concept of an “investigation” ‑

I will not read out what is in a., but we then repeat ‑ there are four grounds, four matters that we pray in aid of our definition of investigation.  There is the temporal requirement, which we set out in 10b; 10a deals with the characteristics, if you like, of an investigation, 10b deals with the temporal requirement, 10c deals with the ascertainment of the limits of power, and 10d deals with what I will call the safeguards that were contained in the explanatory memorandum in 2002 and which found their way into sections 7C(3) and 7C(4) of the Act, and 7C(2).

The safeguards that are in the explanatory memorandum found their way into section 7C(2) in relation to special operations:

The Board –

before determining:

an intelligence operation . . . must consider whether methods of collecting the criminal information and intelligence . . . have been effective –

7C(3), before an investigation:

must consider whether ordinary police methods of investigation –

et cetera.  And 7C(4), the determination itself had to:

describe the general nature –

and, of course, be in writing and state what the relevant offences are.

GORDON J:   Can I ask you about 7C(4)(b), which requires, as I understand it, as one of the three components of a determination that it must set out, or must list the relevant crime, or relevant crimes that they are, include a crime of a particular nation, but are not required to specify the particular offences.

MR ABBOTT:   No.

GORDON J:   Does that affect the way in which you put your argument?

MR ABBOTT:   No, it does not, with respect.  I say that, obviously there is some room given to the ACC as to how much they have to say in their determination.  They can do it by reference to offence or offences generally against the law, but they do not have to specify particular offence or offences.  My learned junior reminds me that in relation to the explanatory memorandum and the insertion of section 7C(4), that was a response to a decision of the Federal Court that it was necessary to specify the exact crime and this shows that it is not necessary to specify the exact crime.

Could I deal then with the decision of the court below?  Justice Charlesworth, with whom all the other members – the other two members of the Full Court agreed, acknowledged that the determination itself did not create the investigation and we find that in her judgment at application book page 24 and 25.  This was in accordance with the decision of this Court in Strickland, and as to her Honour’s further steps, her Honour’s approach is best seen ‑ and we say the passage which we say highlights the error of the approach in principle is the first line of page 73 of the application book, the first line of paragraph 99, where her Honour said:

In my view, the permissible scope of an investigation is not to be found in the meaning of the word “investigation”.

And we see then her Honour’s further steps in paragraph 101 where her Honour said that in her view the use of:

the word “particular” otherwise introduces a narrowing concept that is not to be found in the language ‑

And then her Honour said, in the last few lines of page 73 of the application book, that:

It is apt to confuse the concept of a permissibly broad investigation with the narrowing lines of inquiry that may arise in the ordinary course of it.  The question of how broad the subject matter may be is a critical one, but the resolution of the question is not to be found in the word “particular”.

And we say that, really, her Honour’s reasoning as to why she found against the applicant was her view of what can amount to an investigation.  And her Honour’s view, which, in our submission, is encapsulated at page 74 in paragraph 102, the first three lines, her Honour’s view, with respect, was that an investigation could be as broad as the words of the authorisation and determination, and it need not be a particular investigation into identified matters, nor need it exist at the time of the authorisation and determination.

NETTLE J:   How does that fit with Strickland?

MR ABBOTT:   How does that fit with Strickland? We say that Strickland ‑ and I am referring the Court to Strickland at paragraph [71] where the Court said, in relation to the requirement that there be an ascertainable and particular investigation for the purposes of an examiner exercising his or her powers under section 24A(1) of the ACC Act, the Court said this:

to hold otherwise ‑

This is halfway down, towards the end of paragraph 71:

to hold otherwise would be to read “for the purposes of a special ACC operation/investigation” as meaning for the purpose of any line of enquiry, howsoever suggested, and of whatever significance or insignificance, as to a matter which perchance satisfies the description of one of the kinds of federally relevant criminal activity delineated in a determination.

And, in our submission, that is exactly what the interpretation of section 7C(1) and the concept of an investigation is what the court below held, and we say that, in fact, that is right in the face of what this Court said in Strickland.  Albeit, I recognise in relation to the requirement that there be an ascertainable and particular investigation for the purposes of an examination, but it must follow logically, if there has to be one for the purposes of an examiner conducting an examination, the same should apply to the Board for the purpose of determining whether a determination about an investigation has sufficient form to render it a special investigation.

GORDON J:   It arguably might be said to be ‑ ‑ ‑

MR ABBOTT:   I am sorry, your Honour, I could not hear you.

GORDON J:   It might be arguably said to be compelled by the precondition that the Board has to determine that existing police methods are not sufficient.  In other words in order to test whether or not you have something which is an investigation which can be classified as special, one has to, as I read the section, identify whether or not, or consider whether or not existing police methods are adequate.

MR ABBOTT:   Of course.

GORDON J:   Now, one wonders how you can do that without some form of specificity without conducting a Royal Commission into it.

MR ABBOTT:   Exactly.  Worse still, of course, how could one do it in respect of investigation ‑ how could one presumptively do that in respect of investigations not yet formed, not yet even considered, and not yet created, but which are created, in this case years later, in respect of a determination which is said, prospectively, that any investigations which are created under the umbrella of this particular determination, we can say in advance that ordinary police methods of investigation are not likely to be effective, to use the use the words of section 7C(4).

Also, I am reminded by my learned junior, of course, there is the footnote 46 to paragraph [71] of Strickland, the footnote says:

Whether the determinations would have been effective to render any such investigation a special ACC investigation is a question of law which, for present purposes, need not be decided.

In our respectful submission, that is exactly the question, or one of the questions, that would need to be decided, were leave to be granted in this case.

So if I could just make some further comments on the three issues that we say are important when considering the definition of investigation.  I have mentioned the temporal aspect but, really, in the court below, although they referred to the definition in section 4 of the ACC Act, the court did not deal with the temporal aspect of whether, on a proper construction of section 7C and the definition in section 4, the investigation must be an investigation that is in existence or contemplation at the time of the determination. 

Rather, the court proceeded on the basis that it was not a relevant consideration at all as to whether an actual investigation was in existence at the time of the determination, because, so the court held, it was sufficient if the determination could prospectively apply to all subsequent investigations claimed to have been created under it.  And we say that the temporal requirement, that the investigation must be extant in the sense of contemplated, is supported by the wording of section 7C(1), which creates a sequence in which the investigation is first authorised, and then determined after authorisation to be special, and it is reinforced, as your Honours pointed out, by the requirement in section 7C(3), the need to contemplate whether ‑ consider whether ordinary police methods are effective.

As to the second of the three matters, that is, undermining the safeguards in section 7C(3), which require a consideration of the effectiveness of the ordinary police methods, we say that the construction adopted by the Full Court really has the effect of undermining the apparent purpose of those safeguards.  And we say that the safeguard in 7C(3) about ordinary police methods, the protection afforded to a citizen, and indeed to an examiner, as to whether or not that has happened, is substantially eroded by the Board applying the requirement in such a way that the Board is able to create these wide‑ranging and all‑encompassing determinations such as we find, and subsequently creating a special investigation years later ‑ ‑ ‑

NETTLE J:   Mr Abbott, I see you are out of time.

MR ABBOTT:   Could I mention ground 2 very briefly, the validity of the notice to produce.  We say, although that second ground is subordinate, the point is simple, it was raised ‑ the notice was on the ‑ was according to the ACC even unhappily drafted.  Justice Logan, we say, is correct.  He said that no validity can be given to it, in truth the notice was incoherent and we say the error is most properly seen by Justice Charlesworth trying to engage in a construction and reading it down, in circumstances where the ordinary citizen could not possibly do that as the recipient of the notice.  If the Court pleases.

NETTLE J:   Thank you.  Ms Maharaj?

MS MAHARAJ:   May it please the Court.  We put two main contentions regarding the first ground.  First, every State and federal court, including intermediate appellant courts, have rejected similar challenges to the breadth of the determination.  Ground 1 is, in essence, an attack on the breadth of the determination and the applicant characterises it as lack of specificity in the determination itself.  The same argument was rejected in A1 Full Court of the Federal Court and also in B v National Crime Authority (1998) 85 FCR 538 at 551.

The second main argument we address is the construction of section 7C.  As to the first point, there are no differences of judicial opinion in the court below.  The decision below is not attended with sufficient doubt to warrant the grant of leave.  Since the Full Court of the Federal Court judgment in NCA v A1 in 1997, some 22 years ago, successive courts have upheld the validity of the 7C(3) determination and its predecessor, the section 13(1) notice of reference under the NCA Act, including the scope and what is required to be stated in these instruments in order to comply with section 7C(4).  Section 13(1) and (2) of the NCA Act were materially in the same terms as section 7C(3) and (4).

GORDON J:   I do not think there is any challenge to the provision itself as a matter of constitutional challenge, it is a question about what it requires as a matter of fact.

MS MAHARAJ:   That is correct, your Honour, but the challenge ‑ the argument that has been articulated today has been mounted before in various courts as a challenge to the scope or the breadth of the determination and all courts have rejected the same argument.

GORDON J:   Well, not in relation to this determination?

MS MAHARAJ:   Including in relation to this determination, there are three single judge Federal Court decisions, and two Full Court decisions, your Honour.

NETTLE J:   These broad spectrum determinations are commonplace, are they not?

MS MAHARAJ:   Your Honour, if I could just finish Justice Gordon’s question; three single judge judgments are XCIV, single judge XX, LX, all in our submissions, and the Full Court judgments are XXVII and, of course, the court below in this case.

GORDON J:   And they predated Strickland?

MS MAHARAJ:   Strickland, the primary judge and the Court of Appeal Victoria also upheld the validity of the determination, and similar arguments were mounted in that case.

GORDON J:   No, I mean, they predate Strickland in the High Court, this Court’s decision in Strickland.

MS MAHARAJ:   Yes, your Honour, it predates Strickland, that is correct.  Sorry, I apologise.

NETTLE J:   Are these broad spectrum determinations commonplace?

MS MAHARAJ:   Yes, your Honour, they are.

NETTLE J:   So this is the modus operandi normally employed?

MS MAHARAJ:   Yes, the determinations are in similar broad terms.

NETTLE J:   Thank you.

MS MAHARAJ:   There are in place, I understand, at least seven extant determinations similar in scope.

NETTLE J:   That would suggest ‑ ‑ ‑

MS MAHARAJ:   Sorry, nine, nine extant determinations.

NETTLE J:   ‑ ‑ ‑ that there are a very large number of matters in relation to which it has been at least purportedly determined that ordinary police methods are not satisfactory.

MS MAHARAJ:   Correct, your Honour.  Section 7(3) is a gateway that has to be passed or a condition precedent to the making of a 7(3) determination ‑ 7C(3) determination.

NETTLE J:   Thank you.

MS MAHARAJ:   In respect of Strickland, your Honours, that involved financial crimes and money laundering determinations, and we make three short points about Strickland.  First, both the primary judge and the Court of Appeal at paragraphs 127 to 152 rejected the attack on the breadth of the determination, which was, the attack was in similar terms to what is mounted here today, relying primarily on the Full Court’s judgment in A1 and the judgment of Justice Wigney in XCIV.

Second, the appeal to the High Court was restricted to the grant of special leave to a single ground of challenge confined to the Court of Appeal’s conclusion that a permanent stay was not necessary in order to preserve public confidence in the administration of justice ‑ [126] of Strickland.  Special leave was not given in respect of the direct challenge to the validity of the determination based on breadth.

Third, given the concession and the finding below in the present case, that there was an investigation on foot in the terms discussed in Strickland, Strickland is, with respect, of limited utility in resolving the present debate.  The key argument in the application ‑ this is application book 88 and 89 ‑ is that a determination made requires there to be a particular investigation which is then underway, or about to commence, or which is anticipated to commence, and to which the determination refers.

The applicant, therefore, is not contending based on Strickland, that an absence of an extant investigation spells the invalidity of the determination.  The applicant’s quarrel appears in essence, to be with the breadth of the determination.  Importantly, the applicant fails to spell out with precision what the missing details of the determination are, that is, over and above the express requirements in 7C(4) which are mandated by section 7C or the Act, the absence of which spells the invalidity of the determination.

All judgments on this point have subsequently followed the leading judgments of the Full Court of the Federal Court in A1 and XCIV and we have already taken your Honours to the series of judgments dealing with the same determination either in its 2013 form or as extended by the 2016 amendment.

The second main point we make, your Honours, is that the second determination accords with the requirements of the Act, section 7C(4) is the only provision that sets out expressly the requirements of the content of the section 7C(3) determination.  The question of validity raised in the present application turns primarily on whether the requirements of subsection (4) have been met.  Subsection (4), if we take your Honours to it, simply requires the determination:

describe the general ‑

we emphasise the word general:

nature of the circumstances or allegations constituting the federally relevant criminal activity –

Second:

set out the purpose of the operation or investigation –

And third:

state that the relevant crime . . . but need not specify the particular offence or offences ‑

The determination at pages 133 to 142 of the application book does all these things, particularly what is listed under the Circumstances and Allegations at AB 139 and 138.

Contrary to the applicant’s contention, definition of “ACC operation/investigation” in section 4 is not imported into section 7C.  It is not relevant for the purposes of construing section 7C(1)(a) or (d).  7C is concerned with the making of a determination by the Board of an abstract investigation for the Commission thereafter to conduct investigations upon its making.  The phrase, “is conducting”, “is undertaking”, in the definition of “ACC operation/investigation” has no role to play in the construction of section 7C; 7C does not import this concept into section 7C(1) or (3).

GORDON J:   Do you accept that in relation to subsection (2), which has the precondition that ordinary police methods are unlikely be effective ‑ ‑ ‑

MS MAHARAJ:   Yes, your Honour.

GORDON J:   ‑ ‑ ‑ do you accept that that idea, that precondition may change over time?  In other words, in 2016 it may be that police methods were unlikely to be effective; by the time you get to 2019 it might be a very different consideration.

MS MAHARAJ:   Yes, your Honour, the factual basis for the gateway wind change, and of course changes, your Honour.  So the statutory test is extant but the circumstances change.  That is the reason, your Honour ‑ ‑ ‑

GORDON J:   May it suggest it requires some specificity and reconsideration when one has investigations?  It may, in effect, bring into question this idea that you can have something that is passed in 2013, passed again by a very slight amendment by an extension of date in 2016, it seems odd that it would be, or arguably questionable, whether it arises again in 2019.

MS MAHARAJ:   Your Honour, there are safeguards that are built into the legislation and one of them is that the Board requires reporting by the ACC on a regular basis by virtue of subsection 7C(1)(b) and 7A(d) about the progress of the investigations under the umbrella determination.  On top of that ‑ ‑ ‑

GORDON J:   It is circular, though.  That is the question.  If you start with a very broad scope – firstly, this question about how the Board can, in effect, identify that, having regard to the precondition, but put that to one side, it is a completely circular argument, is it not?  I have got this broad umbrella, am I looking at police methods broadly, am I looking at it in relation to this particular investigation? What the section says is:

an investigation into matters relating to . . . is a special investigation.

It is looking at the investigation; it is not looking at this broad determination. So that is why, not only are we dealing with a temporal question, we are dealing with questions about the specificity of the connection between the determination upfront, including the reporting.

MS MAHARAJ:   Yes, your Honour.  Your Honour, the determination itself, once it is properly studied, given the policy, the terms, and the context of the provision, it becomes quite clear as to why the umbrella determination is cast in such broad terms.  The key phrases are, that are defined, are the definition of federally relevant criminal activity ‑ ‑ ‑

GORDON J:   Yes.

MS MAHARAJ:   ‑ ‑ ‑ which in turn imports, or is based on the definition of a relevant criminal activity, which means ‑ and it picks up:

circumstances implying –

This is in section 4, your Honour:

or any allegations, that a relevant crime may have been, may be being, or may in future be, committed –

So the argument‑ ‑ ‑

GORDON J:   Dealing with prevention?

MS MAHARAJ:   Because of prevention, and understanding ‑ ‑ ‑

GORDON J:   No, dealing with prevention of crime.

MS MAHARAJ:   And, your Honour, understanding.  Section 7C(3) is very widely crafted.  The investigation is not a traditional police investigation, it is not an adversarial process, it is an inquisitorial exercise, and case law establishes that it permits ‑ ‑ ‑

GORDON J:   I accept ‑ ‑ ‑

MS MAHARAJ:   And that the scope of the ‑ ‑ ‑

GORDON J:   Even if that is right, what it recognises, though, the statute recognises that there are a number of what you describe as protection mechanisms.

MS MAHARAJ:   Yes, safeguards.

GORDON J:   It has to have a Board, not by majority but at least nine votes, it has to have this precondition satisfied, the Board has got to turn its mind to identify whether or not the investigation meets the precondition or not before it can make the determination.  Those things are, whether they are for or against you, factors which seriously impact upon the way in which ‑ I would have thought, the way in which the Board looks at these questions in making the determination.

MS MAHARAJ:   Yes, your Honour, but section 7C(3) in itself says that it deals with:

understanding, disrupting or preventing the federally relevant criminal activity.

The phrase matters in section 7C(3) is as wide a term as one can get.  The words:

relating to federally relevant criminal activity ‑

all spells the express intent of the legislature visualising a very broad umbrella document where the Board, at its high level, given the composition of the Board under section 7(b) which consists of all the heads of the premier, State, and federal agencies, looking at particular subject matters, broad as it may be, but coming to a conclusion that that requires the deployment of coercive powers and other methods which are beyond ordinary police methods.

GORDON J:   Does that sit with section 28 and the power to summon witnesses?

MS MAHARAJ:   Yes, your Honour.

GORDON J:   That argument?

MS MAHARAJ:   That is a coercive power; yes, your Honour.

GORDON J:   It is what?

MS MAHARAJ:   Section 28 ‑ ‑ ‑

GORDON J:   No, I did not hear what you just said, it is a what argument?

MS MAHARAJ:   It is a coercive power ‑ ‑ ‑

GORDON J:   Yes.

MS MAHARAJ:   ‑ ‑ ‑ and it has to be exercised for the purposes of the special determination.  Section 28(7), your Honour, is the provision.  So these coercive ‑ ‑ ‑

GORDON J:   In order to issue it, you have to be satisfied that it is reasonably necessary, do you not ‑ ‑ ‑

MS MAHARAJ:   Yes, your Honour, in the ‑ ‑ ‑

GORDON J:   ‑ ‑ ‑ for the purposes of the investigation?

MS MAHARAJ:   Yes, your Honour, in the circumstances of that case, but your Honour will see 28(7) ‑ if I can take your Honour to 28(7) ‑ and that says:

The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.

And there is a mirror provision in section 24A.

GORDON J:   I am talking about 28(1)(d) which provides:

in the case of a post‑charge –

I am summarising it:

summons ‑‑ reasonably necessary for the purposes of the relevant special . . . investigation even though:

(i)       the person has been charged ‑

MS MAHARAJ:   Yes, your Honour.  So that is still referable to the special investigation, your Honour.  Yes:

reasonably necessary for the purposes of the relevant special ACC operation/investigation –

which picks up section 7C.  The “special ACC operation/investigation” is defined in section 4, your Honour.

Our short submission, your Honours, is that there is no mandate given the terms, context and policy of Act to read down the ordinary words of wide import critical to the construction issue, these words are matters relating to federally relevant criminal activity which captures crimes to be committed, crimes in future, and 7C does not require the determination to identify persons whose conduct is in question, describe the conduct, state the dates, the relevant conduct that has occurred, or state in a detailed way any alleged criminal activity; A1, page 295.

Indeed, such particular details might not even be in the contemplation of the Board given the definition of “relevant criminal activity” in section 4, which means any circumstances implying, or any allegations that a relevant crime may have been, may be being, and may in future, be committed against a law of the State or the Commonwealth.  Added to this is the wide definition of “serious and organised crime” in section 4, which is a constituent element of the pivot on which the whole legislation rests, “federally relevant criminal activity”.

NETTLE J:   Ms Maharaj, what do you say about ground 2 of the notice to produce?

MS MAHARAJ:   Your Honour, that ground does not raise any matters of principle and two judges below upheld the validity of the notice.

NETTLE J:   Are notices to produce in that form commonplace also?

MS MAHARAJ:   No, your Honour, that was an aberrant act.

NETTLE J:   It was a what?

MS MAHARAJ:   It was an aberrant act, it was an unusual notice.

NETTLE J:   Aberrant, I see.

MS MAHARAJ:   No matter of principle arises from that ground, your Honour.

GORDON J:   Are they still issued?  As a matter of practice, does the Commission issue them?

MS MAHARAJ:   Not in those terms, your Honour, but notices are issued, yes.

GORDON J:   In those terms?

MS MAHARAJ:   Not in those terms, your Honour.  That notice was, as I have put it before, a mistake, unhappily drafted.

NETTLE J:   Yet it was upheld.

MS MAHARAJ:   Yes, your Honour, by two judges.

NETTLE J:   Well, two is enough, at that level.

MS MAHARAJ:   Yes, the Honours construed it in a very narrow manner, to say, whatever this particular person had on his person.

GORDON J:   That is the problem, that is the argument put against you is, why would you read down a notice which is a compulsory exercise of power in order to make it valid?  Even you yourself accept it is unhappily drafted.

MS MAHARAJ:   Your Honour, unhappily drafted, we say with respect, but not going to the validity of the notice.  But, at the end of the day, no issue of principle arises, and that issue is confined to ‑ ‑ ‑

NETTLE J:   I just wonder, given that it has been given the imprimatur of the Full Federal Court, whether it might act as an incentive, or at least a lack of disincentive to issue notices in that form in the future. 

MS MAHARAJ:   I can assure your Honour that that will not be the case and it involved extremely unusual circumstances in that case.

GORDON J:   This whole area is unusual circumstances; that is what you are putting to us, you need these extraordinary powers.

MS MAHARAJ:   Yes.

GORDON J:   I do not know if that gets you very far.

MS MAHARAJ:   Your Honour, “serious and organised crime”, your Honours will see that:

that involves 2 or more offenders and substantial planning and organisation ‑

. . . 

that involves, or is of a kind that ordinarily involves, the use of sophisticated methods ‑

. . . 

ordinarily committed, in conjunction with other offences of a like kind ‑

and it involves crimes like fraud, tax evasion, money laundering, currency violations, illegal drug dealings, firearms, armament dealings, cybercrime.  So, your Honours can see that it deals with a large array of sophisticated criminal activity.

NETTLE J:   I see you are out of time.

MS MAHARAJ:   Thank you, your Honours.

NETTLE J:   Thank you Ms Maharaj.  Anything in reply, Mr Abbott?

MR ABBOTT:   Perhaps two matters.  My learned friend used the word “quarrel”; our quarrel is really that no investigation was contemplated or extant at the time of the determination.  My learned friend’s reference to section 7C(4) is, we say, what has happened in the past is that the ACC Board have relied on those words in section 7C(4) without, with respect, having fully or sufficiently had regard to all the other provisions in the ACC Act, and that section 7C(4) can only be considered in the context of all the other provisions, and our point at the end of the day is that the Board of the ACC have deliberately chosen to proceed this way.  There are other

options, they do not have to have proceeded in the way they had.  Our way that we propose is another way and we say is a more appropriate way, and the Full Court judgment, in our submission, would lead to at least encouragement to read down warrants.

NETTLE J:   Thank you.  The Court will adjourn briefly to consider the matter.

AT 10:15 AM SHORT ADJOURNMENT

UPON RESUMING AT 10:18 AM:

NETTLE J:   In this matter, there will be a grant of special leave.  The parties will need to consult with the Registrar as to the further interlocutory steps to be undertaken.  I thank counsel for their assistance.  Call the next matter for hearing please.

AT 10:18 AM THE MATTER WAS CONCLUDED