FAN19 v Australian Criminal Intelligence Commission

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FEDERAL COURT OF AUSTRALIA

FAN19 v Australian Criminal Intelligence Commission [2021] FCA 100

File number: WAD 619 of 2019
Judgment of: BANKS-SMITH J
Date of judgment: 15 February 2021
Catchwords:

ADMINISTRATIVE LAW - Australian Criminal Intelligence Commission - High Risk and Emerging Drugs (No 3) Determination authorised special operation - determination of class or classes of persons to participate in special operation - where Board authorised head of agency to identify persons whose duties include providing services in relation to ACIC operations and investigations - where head of Western Australian Police identified a broad class of persons - whether impermissible delegation of power - whether sufficient for head of agency to identify a class of persons

ADMINISTRATIVE LAW - where applicant charged with serious drug related offences - post-charge compulsory examination under s 25A of the Australian Crime Commission Act 2002 (Cth) (ACC Act) - where examiner directed and authorised persons to be present at examination - review of examiner's decision - where examiner authorised officer of the Western Australian Police to be present - whether police officer within definition of member of the staff of the Australian Crime Commission (ACC) - whether police officer participating in a special operation - whether examiner obliged to disclose police officer's presence under s 25A(7) of the ACC Act

ADMINISTRATIVE LAW - post-charge examination - natural justice and procedural fairness - where examiner informed witness that all persons present were members of the staff of the ACC - where police officer not in examination room but in separate streaming room - where examiner did not reveal to the applicant the presence of others in streaming room - whether rules of procedural fairness expressly or impliedly abrogated by ACC Act - content of obligation of procedural fairness - role of statutory protections including confidentiality direction - where police officer not part of investigating team but employed in same squad - where police officer not involved in prosecution of witness - whether examiner took into account risk of prejudice to witness's fair trial

ADMINISTRATIVE LAW - relevant considerations - whether examiner failed to consider risk to the applicant's fair trial - whether examiner failed to consider risk of disclosure of examination material by police officer - whether examiner failed to consider whether police officer was a member of the staff of the ACC - whether examiner failed to consider the effectiveness of the confidentiality direction

ADMINISTRATIVE LAW - improper purpose - whether examiner's decision to permit police officer's presence was improper - whether examiner's decision was at direction of others - whether police officer's presence was for a purpose other than purposes authorised by High Risk and Emerging Drugs (No 3) Determination - whether decision to permit police officer legally unreasonable - whether examiner's conduct in reckless disregard of statutory obligations
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Crime Commission Act 2002 (Cth) ss 4, 4B, 7, 7A, 7B, 7C, 17, 21A, 24A, 25A, 25B, 25C, 25D, s25E, 28, 29A, 30, 33, 34A,…

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Details
Case
[2021] FCA 100
Decision Date

CaseChat Overview and Summary

The applicant, a person charged with serious drug related offences, sought to challenge the authorisation of a special operation under the Australian Criminal Intelligence Commission Act 2002 (Cth) and the conduct of a compulsory examination under that Act. The respondent, the Australian Criminal Intelligence Commission (ACIC), had authorised a special operation concerning high risk and emerging drugs and had directed and authorised certain persons to be present at the applicant's examination. The applicant sought to challenge the authorisation of the special operation, the identification of a class of persons to participate in the special operation, and the examiner's decision to permit the presence of a police officer at the examination. The applicant also sought to challenge the examiner's failure to take into account relevant considerations and the alleged improper purpose and legal unreasonableness of the examiner's decision. The court was required to determine whether the Board's authorisation of the special operation and the identification of a class of persons to participate in the special operation was an impermissible delegation of power, whether the examiner was obliged to disclose the police officer's presence under the Act, whether the examiner was obliged to accord procedural fairness to the applicant, whether the examiner acted for an improper purpose, and whether the examiner's decision to permit the police officer's presence was legally unreasonable.

The court found that the Board's authorisation of the special operation and the identification of a class of persons to participate in the special operation was not an impermissible delegation of power. The court also found that the examiner was not obliged to disclose the police officer's presence under the Act because the police officer was not a member of the staff of the ACIC. However, the court found that the examiner was obliged to accord procedural fairness to the applicant and that the examiner failed to take into account relevant considerations, including the risk of prejudice to the applicant's fair trial and the risk of disclosure of examination material by the police officer. The court found that the examiner's decision to permit the police officer's presence was not for an improper purpose but was legally unreasonable because the examiner failed to consider the limited evidence of the police officer's ability to assist, the fact that there were other people better placed to assist during the examination, the risk of future disclosure and the effect of that on the applicant's right to a fair trial, and the lack of control over information that the police officer might disclose. The court also found that the examiner's conduct was not in reckless disregard of statutory obligations.

The court dismissed the applicant's application and reserved costs. The decision provides guidance on the obligations of examiners under the ACIC Act and the requirements of procedural fairness in compulsory examinations.

Orders

Orders of the court

1. The application is dismissed.

2. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Table of contents

Introduction

[1]

The statutory context and instruments

[8]

Overview of the ACC

[8]

Compulsory examinations and s 25A

[12]

'Member of the staff'

[23]

The HRED3 determination

[26]

The Participants Instrument

[40]

The events

[45]

Affidavits relied upon

[45]

The lead up to the issue of summonses

[46]

The application for summonses to issue

[58]

The summons

[64]

The confidentiality direction

[69]

Endorsement by the ACIC of Officer Masterson to attend examination

[74]

The examination

[76]

Officer Masterson's evidence

[91]

The challenges to the ACIC examination

[97]

Claim of improper delegation and identification of 'Member of the staff of the ACC'

[104]

Delegation by the Board

[104]

Identification by a head of agency

[120]

Evidence as to 'participating'

[145]

Whether the Board should be regarded as having complied with its obligations

[148]

Whether Mr Lusty was right to proceed on the basis that Officer Masterson was a member of the staff

[149]

Mr Lusty's evidence

[150]

Reasons provided after proceedings instituted

[150]

General views in advance of the examination

[152]

About Officer Masterson and his selection

[158]

Mr Lusty's knowledge about whether Officer Masterson a member of the staff of the ACC

[174]

Matters relevant to fair trial

[191]

Balance of the grounds of challenge

[200]

Claim that Mr Lusty failed to take into account relevant considerations

[202]

Principles

[202]

Provisions relating to the conduct of an examination

[204]

Coercive powers and protection

[204]

Section 25A safeguards

[210]

The competing submissions of the parties on an obligation to consider and accord natural justice

[223]

Procedural fairness and statutory power

[225]

Allegation that Mr Lusty failed to take into account and comply with procedural fairness obligations

[243]

Claim that Mr Lusty acted for an improper purpose in authorising Officer Masterson's presence at the examination

[273]

Claim that decision to permit Officer Masterson's presence legally unreasonable

[293]

Claim that Mr Lusty acted recklessly

[299]

Conclusion

[306]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 28 of the ACC Act sets out the circumstances in which an examiner may issue a summons. Relevantly, it provides that:Power to summon witnesses and take evidence(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. On 14 February 2018 Mr Lusty approved the issue of a summons with respect to the applicant and provided reasons, as required under s 28(1A). Mr Lusty's reasons for the issue of the summons describe that the examination was for the purposes of the HRED3 determination, and that it was reasonably necessary for the purposes of the HRED3 determination, even though the applicant had been charged with related offences and related confiscation proceedings because (adopting Mr Lusty's use of 'examinee' in the reasons):(a)there were reasonable grounds for suspecting that the examinee had knowledge relating to 'specified criminal activity' involving 'high risk and emerging drugs' (especially in light of the existing charges against him);(b)such knowledge would be relevant to the matters in para 1 of Schedule 1 of the HRED3 determination and would assist in achieving the purposes set out in para 9 of the HRED3 determination (including to advance Project Baystone);(c)he considered that the examinee would be likely to disclose such knowledge and information;(d)the ACC Act provides various safeguards to protect, or at least minimise infringement of rights and interests of the examinee; and(e)the proposed examination is in the public interest in order to enable the ACIC to perform its important public functions, notwithstanding inevitable infringement of the examinee's privacy (and potentially other's). Mr Lusty's reasons state that the applicant has been charged with 'related offences' and currently had 'related confiscation proceedings' commenced against him. The reasons record that these are significant factors requiring special consideration and additional caution, having regard to the position of an accused 'under our accusatorial system of criminal justice', however, Mr Lusty said he was satisfied that the examination was reasonably necessary having regard to the following:(a)Parliament has authorised post-charge examinations and recognised that the Examiner's power is 'necessary to achieve the legitimate aim of protecting the community from serious and organised crime';(b)Parliament has authorised post-confiscation application examinations and recognised that granting Examiners this power is 'necessary to achieve the legitimate aim of depriving serious and organised criminal groups from accessing the proceeds of their crimes';(c)the purpose of the examination is not to bolster the existing criminal prosecution of the examinee but to determine the matters referred to in para 1 of Schedule 1 of the HRED3 determination and to gather relevant information and intelligence in pursuit of the purposes in para 9 of the HRED3 determination;(d)the examination will be held in private and the Examiner is 'likely to strictly limit the persons permitted to be present during the examination';(e)a direction is likely to be made pursuant to s 25A(9) prohibiting various disclosures and uses of the evidence given by the examinee;(f)the ACC Act contains and recognises other legal mechanism designed to reduce potential prejudice or unfairness to an examinee (e.g. s 25C-25E and s 30);(g)the judge in relation to the criminal prosecution against the examinee possesses a range of powers and discretions to address any residual potential prejudice;(h)that it is expected the examinee will provide evidence that is highly relevant and valuable; and(i)there is significant public interest in obtaining and utilising such evidence 'as soon as possible' rather than waiting for the relevant offences and confiscation proceedings to be fully 'resolved'.

Decision

Reasons for decision

Having regard to those matters, I am not satisfied that the applicant has shown that Mr Lusty acted for an improper purpose in his conduct of the examination.Claim that decision to permit Officer Masterson's presence legally unreasonable This allegation was made by way of a particular to the claim that Mr Lusty's decision to allow Officer Masterson's presence without any disclosure to the applicant was an improper exercise of power. It must be considered together with all the reasons above. A power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [19]‑[20] (Kiefel CJ, Bell, Gageler and Keane JJ). The applicant relies on the well-known principles discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [23]‑[30] (French CJ), [63]‑[67] (Hayne, Kiefel and Bell JJ), [88]‑[92] (Gageler J). Further relevant authorities include Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [43]‑[44]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [53] (Gageler J); and Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [61]. In Minister for Immigration and Border Protection v Stretton, Allsop CJ explained the position as follows:[12]Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.[13]The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power. The applicant contends that four matters point to the legal unreasonableness of Mr Lusty's decision:(a)the limited evidence of Officer Masterson's ability to assist;(b)the fact that there were other people better placed to assist during the examination, such as an analyst;(c)the failure of Mr Lusty to grapple with the risk of future disclosure and the effect of that on the applicant's right to a fair trial; and(d)the lack of control over information that Officer Masterson might disclose.

Ratio Decidendi

Legal Principle Established

Mr Lusty replied by email of the same date, writing:I confirm that I am available for these proposed examinations, but I have not yet made any decisions about whether to conduct them. When you are preparing the relevant paperwork please be careful to ensure that it is proposed that they will be conducted (by an Examiner) for the purpose of a special ACC operation (including Project Baystone) pursuant to the HRED3 Determination, having regard to the decision in DPP (Cth) v Galloway & Ors [2017] VSCA 120 (25 May 2017). Some of the language in the emails below arguably suggests that the examinations would be conducted by, or on behalf of, WA Police (and also arguably implies that it is a forgone conclusion that they will be conducted and that the examination material will be disseminated to WA Police). I know that this is not intended, but it is important to avoid and discourage loose language in emails which could potentially be seized upon by defence lawyers and used against us in the event of a legal challenge (as occurred in Galloway). You might want to (diplomatically) draw this to the attention of relevant WA Police officers (who are unlikely to appreciate the full significance of Galloway-type issues).I agree with your analysis about the potential width of the definition of 'prosecutor'. For a POST-CHARGE examination I tend to think that it would ordinarily be necessary (re the 1st dot point below), or highly desirable (re the 2nd dot point below), to not permit any of the following persons to be present at the examination and also make a Confidentiality Direction preventing disclosure (until resolution of the related post‑charge offence/s) to:•any prosecutor of the examinee for a 'related offence', including any member of a police force who was 'involved in the making of a decision whether to prosecute the examinee' for such an offence; and •any person proposed to be involved in such a prosecution, including any proposed prosecution witnesses (I think this is generally highly desirable to avoid legal challenges, especially in light of the decision in R v Seller & McCarthy [2013] NSWCCA 42, in which it was held that the evidence of a proposed prosecution witness - Quincy Tang - should be excluded because he had attended an examination and/or received transcripts of it).Assuming that I do approve the proposed examinations, the proposal outlined below seems fine. It might also be possible and desirable for someone who was involved in the initial investigation, but was not actually 'involved in the making of the decision to prosecute' and is not a proposed witness (e.g. a WA Police intelligence analyst), to be present at the examination to assist us (given the additional relevant knowledge such a person is likely to have).If and when the proposed examinations are approved, but before they are conducted, I could prepare some draft proposed Confidentiality Directions for you and others to consider in order to ensure that they are workable, but I wouldn't decide on the final wording until I have considered any submissions the witness and his/her lawyer might wish to make about it (and no final decision about to whom examination material will be formally disseminated should be made until the conclusion of the examination).(original emphasis)