DX v Commonwealth of Australia
[2018] FCCA 922
•20 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DX v COMMONWEALTH OF AUSTRALIA & ORS | [2018] FCCA 922 |
| Catchwords: ADMINISTRATIVE LAW – JUDICIAL REVIEW – Whether determination made by Board of Australian Crime and Intelligence Commission invalid – whether summons issued by Examiner invalid – whether Examiner held requisite state of satisfaction that issue of summons reasonable in all of the circumstances – whether Determination of Board made in circumstances of unreasonableness. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5 and 6 Criminal Code Act 1995 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), ss.88F and 88G(1)(b) & (c) |
| Cases cited: XXVII v The Commonwealth of Australia [2017] FCA 320 Tanner v Hill& Anor(1988) 82 ALR 109 |
| Applicant: | DX |
| First Respondent: | THE COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | THE AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION |
| Third Respondent: | JEFFREY ANDERSON |
| File Number: | ADG 526 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 15 March 2018 |
| Date of Last Submission: | 15 March 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 20 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr E Belperio |
| Solicitors for the Applicant: | Patsouris & Associates |
| Counsel for the Respondent: | Mr P d'Assumpcao |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
Pursuant to ss.88F and 88G(1)(b) and (c) of the Federal Circuit Court of Australia Act 1999 (Cth), and to prevent prejudice to the interests of the Commonwealth and to protect the safety of the applicant, publication of any of the contents of Exhibit R1, being the unredacted summons issued by the third respondent to the applicant under s.28(1) of the Australian Crime Commission Act 2002 (Cth) is prohibited.
The item referred to in paragraph 1 herein, is to be placed in a sealed envelope by the Registry and marked ‘Not to be opened without leave of a judge’.
For the purpose of these proceedings, the applicant is to be referred to by the pseudonym ‘DX’, and pursuant to ss.88F and 88G(1)(b) and (c) of the Federal Circuit Court of Australia Act 1999 (Cth) and to prevent prejudice to the interests of the Commonwealth and to protect the safety of the applicant, publication of any information tending to reveal the identity of the applicant in these proceedings is suppressed.
The application is dismissed.
The applicant do pay the costs of the respondents.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 526 of 2017
| DX |
Applicant
And
| THE COMMONWEALTH OF AUSTRALIA |
First Respondent
| THE AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION |
Second Respondent
| JEFFREY ANDERSON |
Third Respondent
REASONS FOR JUDGMENT
This is an application for judicial review made pursuant to ss.5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) in relation to four matters:
a)the validity of a summons issued by the third respondent and served on the applicant on 7 December 2017;
b)the decision of the third respondent to issue the summons;
c)the validity of the Australian Criminal Intelligence Commission special operations authorisation and determination (High Risk and Emerging Drugs no 3) 2017 (‘the determination’); and
d)the decision of the Board of the second respondent to issue the determination.
The second respondent is a body established by s.7(1) of the Australian Crime Commission Act 2002 (Cth) (‘the Act’). It is a body capable of being sued. The third respondent is an examiner of the Australian Crime Commission (‘ACC’) appointed pursuant to s.46B(1) of the Act.
The applicant is a person served with a summons issued under s.28(1) of the Act. The applicant takes issue with the third respondent issuing the summons, and with the second respondent in having made the Determination through its Board. The applicant proceeds by way of the Amended Application filed on 18 January 2018.
The grounds of that application are as follows:
a)Ground 1 (the ‘end date ground’)
The Determination is invalid as:
i)there is an implied requirement to fix an end date upon an operation authorised under s.7(1)(c) (and determined to be special under s.7(1)(d) and s.7C(2));
ii)the second respondent failed to fix an end date with respect to the special operation purportedly authorised by the Board pursuant to the Determination; and
iii)the second respondent has not complied with the provisions of s.7C(1)(c) in circumstances where it authorised an ongoing as to time operation and consequently the Determination is unlawful and invalid.
b)Ground 2 (the ‘lack of specificity ground’)
The determination applies to federally relevant criminal activity without any case-specific temporal limitation, having the consequence that, in respect of any offending within the scope of the determination, it could not reasonably be expected to be able to be said with accuracy that methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective at understanding, disrupting, or preventing the federally relevant criminal activity to which the intelligence operation relates and therefore lacks the necessary degree of specificity and is ultra vires and invalid.
c)Ground 3 (the ‘unreasonableness ground’)
The nature and scope of the special operation purportedly authorised by the Determination is so varied and broad that it can be inferred that breadth of subject matter discloses unreasonableness:
i)the first respondent, by its Board determination that methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation relates is so unreasonable that no reasonable decision-maker could have so determined; and
ii)consequently, the resulting determination is unlawful and invalid.
d)Ground 4 (the ‘invalidity of summons ground’)
Invalid if issued for purposes of the Determination
If and to the extent that the Summons was issued for the purposes of a special operation, being the special operation purportedly authorised by the Determination, and the Summons is invalid by reason of the invalidity of the Determination (as to which the applicant repeats the matters specified above).
e)Ground 5 (the ‘non-compliance with s.28(1) ground’)
Non-compliance with s.28(1) of the Act
The Summons does not comply with s.28(1) of the Act (and is consequently invalid) in that the second respondent could not be satisfied of the statutory requirement in s.28(1)(c) that the issuing of the Summons was reasonable in all the circumstances.
As will be seen from the above, I have given each ground a short descriptive title for the sake of brevity and clarity.
On the basis of those grounds, the applicant seeks orders pursuant to ss.5 and 6 of the ADJR Act for an injunction restraining the third respondent from examining the applicant pursuant to the summons; a declaration that the summons is invalid; a declaration that the Determination is invalid; its costs; and any further orders the Court deems fit.
It also seeks an order that the applicant be referred to for all purposes connected with these proceedings as ‘DX’ and suppression of the applicant’s real name.
Two preliminary issues
The applicant filed the application in this Court using the pseudonym given to him by the ACC, namely, the letters ‘DX’. The summons indicated that pursuant to s.29A(1) of the Act, disclosure of information about the summons or any official matter connected with it was prohibited. There were two exceptions to that prohibition. One of them was with respect to the filing of an application such as this, challenging the validity of the summons and requiring the applicants to apply for suppression of their name and its replacement with a pseudonym.
Such an application was part of the interlocutory relief sought by the applicant but had not previously been ruled on by me. Counsel for the respondents drew that matter to my attention and provided the Court with an unredacted copy of the summons in a sealed envelope in order to disclose the name of the applicant, firstly, so that the applicant’s identity be made known to the Court, and secondly, so that an appropriate suppression order could be made. On viewing the name of the applicant, it became apparent to me that I had, perhaps as long as 20 years ago, had involvement with the applicant as counsel for the prosecution in a criminal matter in which the applicant was the defendant. I disclosed this to counsel for the parties and invited them to take instructions. Both counsel indicated that they were instructed to take no issue with me presiding over this matter. I do not regard myself as conflicted with respect to this matter in any way. I have made an order suppressing the contents of the sealed envelope which has been marked as Exhibit R1.
I have supressed the name of the applicant and ordered that for the purpose of these proceedings that that person be referred to as ‘DX’.
The decision of Charlesworth J in XXVII v The Commonwealth of Australia[1] (‘XXVII’) dealt with similar issues to this matter. That decision has been the subject of appeal to the Full Court of the Federal Court and judgment was delivered on 13 April 2018. Counsel for the applicant sought to tender a copy of the transcript of the appeal proceedings in order to rely on certain remarks made by the members of the Full Court during the course of argument. I declined to receive the transcript for that purpose.[2]
[1] [2017] FCA 320.
[2] Tanner v Hill (1988) 82 ALR 109.
Statutory framework
The ACC, which may also be referred to as the Australian Criminal Intelligence Commission (‘ACIC’) is an agency in right of the Commonwealth and the successor to the National Crime Authority (‘NCA’). The functions of the ACIC are set out in s.7A of the Act. Relevantly, they include:
a)collecting, correlating, analysing and disseminating criminal information and intelligence, and maintaining a national database of that information and intelligence;
b)undertaking intelligence operations;
c)investigating, when authorised by the Board, matters relating to federally relevant criminal activity; and
d)to provide reports to the Board on the outcomes of those operations and investigations.
The term ‘Intelligence Operation’ is defined in the Act as follows:
“… an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity, but that may involve the investigation of matters relating to federally relevant criminal activity.”
The term ‘federally relevant criminal activity’ is defined in the following terms:
“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 the state; and
(ii)has a federal aspect.[3]”
[3] Section 4(1) of the Act.
A ‘relevant crime’ includes serious and organised crime.
A ‘special ACC operation/investigation’ 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.”[4]
[4] Section 4(1) of the Act.
The ACIC operates at the direction of a Board, the members of which include the Commissioner of the Australian Federal Police; the Comptroller of Customs; the Chairperson of the Australian Securities and Investments Commission; Commissioners of Police of the States and Northern Territory; and the Chief Police Officer of the ACT. Its functions are set out in section 7C(1) of the Act:
(1)The Board has the following functions:
(a)to determine national criminal intelligence priorities;
(aa)to determine priorities in relation to national policing information systems and services;
(b)to provide strategic direction to the ACC and to determine the priorities of the ACC;
(c)to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;
(d)to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation;
(e)to determine, in writing, the class or classes of persons to participate in such an operation or investigation;
(f)to establish task forces;
(g)to disseminate to law enforcement agencies or foreign law enforcement agencies, or to any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations, strategic criminal intelligence assessments provided to the Board by the ACC;
(ga)to make recommendations to the Minister about expenditure from the National Policing Information Systems and Services Special Account;
(gb)to make recommendations to the Minister about charges for national policing information services (including criminal history checks);
(gc)to determine, in writing, policies and give directions to the CEO in relation to the following:
(i) disclosing national policing information;
(ii) approving a body as an accredited body;
(gd)to determine, in writing, any conditions or restrictions in relation to providing nationally coordinated criminal history checks;
(h)to report to the Inter‑Governmental Committee on the ACC’s performance;
(i)such other functions as are conferred on the Board by other provisions of this Act.”
The Board is empowered to make a determination that an intelligence operation is a special operation, or that an investigation is a special investigation. Before it makes a determination of either of those matters, it must consider the relevant threshold test provided in ss.7C(2) and (3) respectively. Those subsections provide as follows:
“Special operations
(2)The Board may determine, in writing, that an intelligence operation is a special operation. Before doing so, it must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation relates.
Special investigations
(3)The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity.”
The Determination relevant to these proceedings is, as I have already noted, a special operation determination.
A determination that an operation is a special operation engages a number of coercive powers that an examiner may use; for example, notices to produce,[5] search warrants,[6] examinations,[7] the power to summons witnesses and take evidence[8]. If an examiner determines to conduct an examination for the purpose of a special operation and, if satisfied that it is reasonable in all of the circumstances to do so, exercises the power to issue a summons to a person either to give evidence or produce documents[9] then that person is compelled to appear before the examiner, as required, until excused or released from further attendance at an examination.[10]
[5] Section 21A of the Act.
[6] Section 22 of the Act.
[7] Section 24A of the Act.
[8] Section 28 of the Act.
[9] Section 28 of the Act.
[10] Section 30 of the Act.
Failure to attend until excused or released from further attendance is an offence punishable by five years’ imprisonment or 200 penalty units.[11] The Act requires the examiner to make a written record of the reasons for the issue of the summons[12] and the summons must, when served, be accompanied by a copy of the Board’s Determination that the intelligence operation is a special operation. The summons must also set out, insofar as reasonably practicable, the general nature of the matters in relation to which the person is to be questioned.[13]
[11] Section 30(6) of the Act.
[12] Section 28(1A) of the Act.
[13] Section 28(3). However, the examiner is not be bound by the general description and can ask questions on any matter relating to the special operation. Further, the examiner is not required to provide a general summary in a summons if they are satisfied that in the particular circumstances, the effectiveness of the special operation would be prejudiced.
Background
In this matter, the Board purported to make an authorisation pursuant to s.7C(1)(c) of the Act and, pursuant to s.7C(2), a determination that the subject intelligence operation was a special operation. This occurred on 21 June 2017. The determination is recorded in the instrument dated 21 June 2017, which is annexed to an affidavit of the applicant’s solicitor.[14] That determination records the following:
[14] Affidavit of Harry Iraklis Paul Patsouris, sworn 18.2.17, Annexure A.
“Determinations
Pursuant to paragraph 7C(1)(d) and subsection 7C(2) of the Act, the Board:
(a)has considered whether methods of collecting criminal information and intelligence relating to specified criminal activity that do not involve the use of powers in the Act have been effective at understanding, disrupting or preventing specified criminal activity;
(b)determines that methods of collecting the criminal information and intelligence that do not involve the use of the powers in the Act have not been effective at understanding, disrupting or preventing specified criminal activity; and
(c)determines that the intelligence operation authorised by this instrument is a special operation.”
On its face, that Determination purports to demonstrate compliance with s.7C(4)(a)-(c) inclusive of the Act. Namely, it states the general nature of the circumstances and allegations constituting the federally relevant criminal activity,[15] identifies what the relevant crimes are,[16] and that they are offences against a law of the Commonwealth[17] and identifies the purposes of the intelligence operation[18].
[15] Ibid, Annexure A, Clause 7, and Schedule 1, at [2]-[3].
[16] Ibid, at [3].
[17] Ibid, Annexure A, Clause 8 and Schedule 1, at [3].
[18] Ibid, Annexure 1, Clause 9.
The third respondent issued a summons to the applicant on 17 December 2017. The summons required the applicant’s appearance before the third respondent on 19 December 2017 to give evidence about serious drug offences contrary to the Criminal Code Act 1995 (Cth) (‘Criminal Code Act’) and dealing with money contrary to specified sections of the Criminal Code. A copy of the Board instrument was attached to the summons. The examiner purported to comply with s.28(1A) of the Act by making a written record of his reasons for issuing the summons prior to its issue.
The application for the issue of a summons and the written reasons for issue of summons are before me in redacted form[19]. The redactions relate to portions of those documents in relation to which a claim of public interest immunity was asserted by the respondents. The applicant made no challenge to the asserted immunity. Accordingly, I have received the document in its redacted form and am satisfied that the redacted portions do attract the immunity.
[19] Affidavit of Judith Sharon Jefferson, dated 26.2.18, Annexure JSJ2.
When the applicant attended before the examiner with a solicitor on 19 December 2017, the solicitor advised that the applicant would seek judicial review of the determination and summons, and as a result, the examiner adjourned the proceedings to 15 January 2018, on which date he proposed to proceed with the examination unless otherwise injuncted.
The applicant filed an Application in this Court for jurisdiction review on 18 December 2017. On 11 January 2018 the applicant filed an Application in a Case seeking that the third respondent be injuncted from proceeding with the examination on 15 January 2018. On 12 January 2018, I made an order injuncting the examiner from proceeding with the examination until the judicial review proceedings before me were finalised.
The examination presently stands adjourned to await the outcome of these proceedings.
Submissions
Mr Belperio, counsel for the applicant, submitted that the primary issue for the Court to determine was whether when, in making a determination under s.7C(2) of the Act, the ACIC can do so without fixing an end date. He submits that what has occurred in this case is that a determination has simply been made on an open-ended or ‘forever’ basis.
In the applicant’s submission, there is an implied requirement that the ACIC may only determine that an intelligence operation is a special operation for a reasonable period of time. It was submitted that this implied requirement arises from the effect of s.7C(2). That section requires the Board, before determining that an intelligence operation is a special operation, to consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers conferred by the Act, have been effective at understanding, disrupting or preventing the federally relevant criminal activity to which the intelligence operation relates. Mr Belperio submitted that the purpose of the above requirement is that a person should only be subjected to the broad powers of examination under the Act in circumstances where ordinary police methods have not been effective. I note at this point that during oral submissions and in his outline of submissions, counsel for the applicant conflated the term “ordinary police methods of investigation” which is the term used in s.7C(3) with the term used in s.7C(2) which is somewhat broader, “methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act”.
Accordingly, he submits that if it determines that relevant methods have not been effective, the Board only has power to authorise a special operation for a reasonable period of time. The only way to determine if the time period is reasonable, is by reference to the nature of the operation, the ineffectiveness of the relevant methods and the need for the broader powers of the ACIC. If that were not the case, it would be open to the Board on the basis of the inefficacy of current methods to authorise a special operation for an indefinite period. If the special operation was still ongoing in, say, 50 years’ time, it is likely that both the nature of the criminal activity and the means used to understand, disrupt, or prevent it, would be materially different. As a result, it may still be in effect at a time, for example, when ordinary citizens are subject to a degree of surveillance that means methods of understanding, disrupting or preventing a crime, surpass anything that could be contemplated today. In that event, the basic prerequisite for the determination, namely, the satisfaction of the Board as to the inefficacy of current methods would potentially evaporate as methods become more advanced. If that were to be the case, the legislative pre-requisite for the operation itself would no longer exist.
Mr Belperio referred me to a decision of P v The Board of the Australian Crime Commission (‘P v ACC’).[20]That was a matter which dealt with s.7C(3), namely special investigations. It was submitted that the Court held in that matter that there was an implied power for the Board to limit the duration of a special investigation by imposing a time limit in order to fulfil its obligations under the Act. That time did not reflect the period in which ordinary police powers were considered ineffective. Instead, any time limit imposed by the Board to limit the duration of the investigation was based on the period the Board considered appropriate to the subject matter. Mr Belperio submitted that authorising the special operation for an indeterminate period of time to create in effect a “perpetual operation” would undermine the statutory function of ACIC. He submitted that the implied power in the Board to limit the extent of an operation by imposing time constraints reflects the safe guard placed on ACIC investigations by the Act. In the proper course, the duration of an investigation should be determined according to its subject matter and it was submitted that it is difficult to conceive of a subject matter that would allow an investigation to continue indefinitely. In counsel’s submission, a time limit to an investigation must be defined. By analogy, the same ought to be the case for special operations. It was submitted that such a submission was consistent with the purpose of the Act which contemplates a balance between firstly, establishing the ACIC as an effective vehicle to combat crime in Australia, and secondly, ensuring that the human rights and civil liberties previously enjoyed in Australian society are intruded upon only to the extent necessary to achieve the first objective: A1 v National Crime Authority (1996) 67 FCR 464 at [477].
[20] (2006) 151 FCR 114 at [31] & [22].
Finally, it was submitted, with respect to the unreasonableness ground,[21] that the very scope of the Determination was so broad as to disclose legal unreasonableness on its face. This ground was not the subject of lengthy submissions.
[21] Ground 3.
Ground 4 was acknowledged to be dependent on the success of grounds 1, 2 and 3. Ground 5 was not the subject of lengthy submissions but the submission appeared to be that given the breadth of the Determination, the Examiner could not have been satisfied that it was reasonable in the circumstances to issue the summons.
Respondent’s submissions
Mr d’Assumpcao submitted, with respect to the invalidity ground,[22] that a plain reading of s.7C(2) of the Act shows that there is no duty on the Board to set an end date. There is no warrant to read into the words of the section an implicit requirement that the Board must consider the likely duration of a special operation and then set an end date. Both the investigatory nature of the ACIC and the oversight function of the Board support that conclusion.
[22] Ground 1.
It was submitted that the instrument recording the Determination of the Board clearly indicated that the Board had specifically considered the relevant test. The question of whether, “methods of collecting the criminal information and intelligence” without using the powers in the Act have been effective in the relevant sense, is an objective test. The very composition of the Board itself incorporating key figures in law enforcement makes it well placed to reach the objective conclusion required.
It was submitted that the applicant’s argument fails to take into account the “operational reality” in which the Board and the ACIC operate in. Mr d’Assumpaco referred me to a number of authorities in which the Federal Court has emphasised the necessity when interpreting the Act to keep in mind the operational reality of the environment in which the ACIC operates.[23] Whilst it was accepted that the Board does have an implied power to limit the duration of a special operation, that is quite different to a duty to do so.
[23] For example, D v Australian Crime Commission (2006) 152 FCR 497.
It was submitted that the oversight function of the special operation by the Board, which includes a requirement that the ACIC report to it by 30 June each year that the special operation is ongoing, enables the Board to discharge its statutory function in providing strategic direction to the ACIC and to determine the priorities of the ACIC. No end date was set by the Board with respect to the reporting obligations of the ACIC under s.7A(d) of the Act for this special operation, and the fact that no end date was set is indicative of nothing more than that at the time the Determination was made, the duration of it was insusceptible of formulation. By virtue of the oversight functions of the Board, the special operation would be subject to continual review and assessment and there was nothing to suggest that the Board would not bring the operation to a close at its discretion consistently with its functions in s.7C, or potentially on the provision of a particular report provided to the Board by the ACIC pursuant to its reporting obligations under s.7A(d). For that reason, it was not tenable to conclude that the special operation was likely to exist in perpetuity. There was no reason, it was submitted, to conclude that the Board does not undertake its functions and oversight role in an appropriate way.
It was submitted that the reasons of the Full Court in P v ACC support the respondent’s contentions. Further, the respondents’ position was supported by the judgment of Finn J in X v The Australian Crime Commission.[24]It was submitted the reasoning in P v ACC, X v The Australian Crime Commission and XXVII[25] all of which dealt with special investigations under s.7C(3) was all the more apposite to this case given the different threshold test imposed by s.7C(2).
[24] (2004) 139 FCR 413.
[25] Op cit.
With respect to the unreasonableness ground,[26] it was submitted that it is well established by a number of cases to which I will refer later, that the broad scope of the determination does not render it legally unreasonable.
[26] Ground 3.
The respondent accepted that if I find that the special operation determination is invalid, then the summons, being dependent upon the existence of a lawful determination by the Board, would also be invalid.
Finally, with respect to non-compliance with s.28(1) ground,[27] it was submitted that there was a total lack of evidence to support the contention that the examiner did not have the necessary state of satisfaction. Further, the examiner gave reasons as he was required to do, for having reached the state of satisfaction and identified the matters that he had regard to.[28]
[27] Ground 5.
[28] Affidavit of Judith Sharon Jefferson, dated 26/2/2018, Annexure ‘JSJ2’.
Mr d’Assumpcao submitted that even if the reasons given were inadequate, that would not of itself lead to a conclusion that the examiner had not obtained the requisite state of satisfaction.
Consideration
The Act does not expressly require the Board to set an end date to either a special investigation or a special operation. There is no express power to do so.[29] I am not satisfied that there is an implied obligation on the Board to set an end date when determining that an operation is a special operation. To do so would be to import words into the statute which is otherwise clear in its terms. I accept the submission of the respondent that in so far as there might be any concern that a special operation without a defined end date could simply trundle along in perpetuity, that risk is addressed by the oversight function imposed on the Board by the Act. Having considered the threshold test in s.7C(2), the factual context of the operation, and having made the Determination, there is no reason to conclude that the Board would not continue to be keenly aware of the existence of the special operation and the role of its oversight function of the special operation in assisting it to discharge its statutory function of providing strategic direction to and determining the priorities of the ACIC. Further, the Board, by virtue of its composition, is presumably well-placed to consider the operation realities of a special operation. If it had considered that the subject matter of the special operation was conducive to an operation of say, 6 months duration, then it had an implied power to limit the duration of the special operation to that period.[30] There is no reason to conclude, in those circumstances, that it would not have done so.
[29] P v ACC.
[30] Op cit.
I accept the submission of the respondent that the remarks of Finn J in X v The Australian Crime Commission[31] are apposite to this matter:
“Turning to the applicant’s contentions, there are two matters I would note at the outset. First, notwithstanding the variety of prescriptions in the Act governing the making of a determination that an investigation is to be a special investigation, the Act does not impose, or make provision for the imposition of, time limitations on the duration of such investigations. It is unsurprising, given the subject matter of such investigations, that the legislature did not seek so to circumscribe the ACC. For whatever reason – and this cannot on the material before me be a proper subject of inference – in this matter the Board chose to impose a time limit on the investigation. It would, in my view, be quite surprising if the consequence of its so doing was either to disable itself from extending the time in which to complete the special investigation it had authorised, or to require the ACC to make a report of the outcomes of the investigation by the set date even if the investigation was incomplete. Nonetheless, it is said I am driven to such conclusions.”
…
The Act simply does not address the question of the duration of investigations, special or otherwise, and it is unsurprising that it does not. The investigative function seems hardly one suited to performance by inflexible timetables. And there is nothing in the text and structure of the Act to suggest that the Board, by setting a time limit for an investigation (special or otherwise), thereby disabled itself from extending the period of that investigation. I regard it as a form of word play divorced from practical reality to suggest that every such extension involves in fact the establishment of a separate and distinct, a new, investigation.”
[31] X v The Australian Crime Commission at [19] & [36].
As Charlesworth J observed in XXVII[32]:
“A logical consequence of the decision in X is that the Board has the power to re-exercise its implied amendment power from time to time so as to extend the period of an investigation by a year, each year, in perpetuity. In that way, the duration of a special investigation may be extended, for practical purposes indefinitely, without compliance with the condition in s 7C(3), provided always that the amendment does not have the substantive effect of changing the investigation’s reason, scope or purpose. Putting aside for a moment the amendments to s 7C(3), it would, as the respondents correctly submitted, be a surprising construction of the ACC Act if it permitted the Board to extend the period of an investigation from year to year indefinitely, but did not permit the Board to make a determination in relation to an investigation that may continue indefinitely unless and until revoked by the Board.”
[32] XXVII at [110].
With respect to Charlesworth J, I find that reasoning equally applicable to a determination made under s.7C(2), such as in this case.
As I have said, I am satisfied that it was open to the Board not to set an end date for the special operation in this case.
I reject the submission that the lack of an end date means the Board could not with any accuracy have satisfied itself as to the threshold test in s.7C(2). In XXVII, Charlesworth J made the following remarks with which I respectfully agree:
“In P the Full Court held (at [22]) that the applicant in that case had wrongly assumed that a time limit imposed on an investigation necessarily reflected the period during which the Board considered that ordinary police powers would not be effective for the purposes of s 7C(3) of the ACC Act. The respondents submit that it follows from what was said in that case that the Board is not required by s 7C(3) to consider that ordinary police methods will not be effective for the entire duration of an investigation. I agree.
If I am wrong in that regard, I would not consider it to be impossible to comply with the condition in s 7C(3) of the ACC Act in respect of an investigation of indeterminate length in any event. That is because the Board is not required to determine that ordinary police methods of investigation would forever be ineffective as a matter of certain and objective fact. It is required only to determine that ordinary police methods of investigation would be unlikely to be effective. A determination as to the unlikelihood of effectiveness may be arrived at by, for example, concluding that ordinary and ineffective police methods of investigation are unlikely at any time in the future to change in respect of the subject matter to be investigated. There is nothing impossible about that.”
As I have noted, since submissions were heard in this matter and after my reasons were substantially drafted, the Full Court has handed down its reasons in XXVII v The Commonwealth of Australia.[33] The Court rejected the submission that an end date must be set for a special investigation. The reasoning in those judgments has, with respect, strengthened my conclusion that it was not necessary to set an end date for the special operation the subject of these proceedings.
[33] [2018] FCAFC 59.
I dismiss the end date ground[34] and the lack of specificity ground.[35]
[34] Ground one.
[35] Ground two.
The unreasonableness ground[36] also lacks merit. The submission that the scope of a special investigation must be restricted to a narrow or specific area of criminal conduct has been rejected by the Federal Court on a number of occasions.[37]
[36] Ground three.
[37] See XXVII at [115] and the authorities cited therein.
That reasoning applies with equal force to a special operation. I dismiss the unreasonableness ground.
As I have declined to find the special operation Determination was invalid, the invalidity of summons ground[38] must also fail. It was clear from the submission of counsel for the applicant that the success of this ground was entirely dependent on an acceptance of the argument that the special operation was invalid. I dismiss the invalidity of the summons ground.
[38] Ground four.
The non-compliance with s.128(1) of the Act ground[39] was not the subject of detailed submissions by the applicant. As I have already noted, the examiner complied with the procedural requirements of that section. There is, as the respondents correctly submit, nothing upon which I could conclude that the examiner did not have the requisite state of satisfaction. The evidence before me suggests otherwise. I dismiss this ground.
[39] Ground five.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 20 April 2018
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