Cxxxviii v Commonwealth of Australia & Ors

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Cxxxviii, sought to challenge a decision of the Full Court of the Federal Court of Australia concerning the validity of a determination made by the Board of the Australian Crime Commission (ACC) under the ACC Act. The core of the dispute concerned whether the Board's power to declare an investigation a "special investigation" could be exercised by making a determination that was not referable to a specific, existing, or contemplated investigation at the time the determination was made. The applicant argued that such a determination, made in 2013 and later applied to an investigation commenced in 2017 targeting the applicant in 2018, was invalid.

The legal issues before the High Court included the extent of the ACC Board's power to designate an investigation as "special" under the ACC Act. Specifically, the court was asked to consider whether a determination made by the Board could validly apply to an investigation that was not in existence or contemplation at the time the determination was made. This raised subsidiary questions about whether the ACC staff could retrospectively apply a broad, class-based determination to a later-formed investigation by asserting that the investigation met the criteria of the determination. The applicant contended that an "investigation" under the Act requires a degree of specificity, form, and substance, and cannot be so broad or enduring as to encompass matters created years later.

The applicant's primary argument was that the statutory concept of an "investigation" under the ACC Act, particularly as informed by section 7C and the definition of a "special ACC investigation" in section 4, necessitates a temporal requirement and a degree of specificity. They argued that a determination must relate to an existing or contemplated investigation, and that the court below erred by holding that a determination could prospectively apply to any subsequent investigation. The applicant relied on the High Court's decision in *Strickland* for the proposition that an investigation must have ascertainable and particular characteristics, and that a broad, class-based determination applied years later to an investigation not in existence at the time of the determination undermines the safeguards within section 7C, such as the consideration of the effectiveness of ordinary police methods.

The respondents, the Commonwealth of Australia and the Australian Criminal Intelligence Commission, contended that numerous State and federal courts, including intermediate appellate courts, had consistently rejected similar challenges to the breadth of such determinations. They argued that the Full Court's decision was not attended with sufficient doubt to warrant the grant of special leave, as successive courts had upheld the validity of determinations made under section 7C and its predecessor provisions. The respondents maintained that the construction of section 7C adopted by the court below was consistent with established judicial interpretation.