GG v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

GG v Australian Crime Commission [2009] FCA 759

ADMINISTRATIVE LAW – challenge to two summonses issued by second respondent under Australian Crime Commission Act 2002 (Cth) – whether summonses invalid because second respondent failed to record in writing reasons for issuing summonses – whether summonses invalid because second respondent failed to record in accordance with Act reasons in writing for issuing summonses – whether second respondent could not have been satisfied that it was reasonable in all circumstances to issue summonses – whether second summons invalid because it did not require applicant to give evidence as “witness” – whether second summons invalid because it was not accompanied by written statement of rights and obligations – whether second summons invalid because copy of determination did not accompany summons or, alternatively, determination invalid – whether second respondent exercised power to issue summons correctly

Held: application dismissed – all grounds of challenge to summonses fail.  

ADMINISTRATIVE LAW – challenge to authorisation and determination made by resolution of Board of first respondent under Australian Crime Commission Act 2002 (Cth) – instrument authorised investigation and determined it to be special investigation – whether determination invalid because Chair of Board did not convene or attend meeting at which determination made and determination in writing not under hand of Chair of Board – whether determination invalid because purposes stated in determination exceed scope of investigation under Act – whether determination invalid because Board did not actually draw conclusion as to whether ordinary police methods of investigation were likely to be effective in investigating federally relevant criminal activity – whether determination invalid because of various deficiencies in resolution of Board – whether determination invalid because Board did not resolve class or classes of persons who were to be able to participate in investigation – whether determination invalid because Board purported to consent to first respondent conducting investigation or intelligence operation under a law of a State without identifying law of State in question – whether determination invalid because Board purported to authorise investigation of allegations comprising offences which head of special investigation suspects may be directly or indirectly connected with, or may be part of, course of activity involving commission of offences referred to earlier in determination – whether determination invalid because Board did not set out findings on material questions of fact and refer to evidence or other material on which those findings were based

Held: application dismissed – all grounds of challenge to determination fail.

Acts Interpretation Act 1901 (Cth) ss 13, 20, 25D, 33
Australian Crime Commission Act 2002 (Cth) ss 4, 7, 7B, 7C, 7D, 7E, 7F, 7G, 7J, 12, 16, 19, 24A, 25A, 26, 27, 28, 29, 29A, 29B, 30, 31, 55A, 59A
Australian Federal Police Act 1979 (Cth) s 19
Judiciary Act 1903 (Cth) s 39B

AA v Board of the Australian Crime Commission [2009] FCA 642 followed
A B Pty Ltd v Australian Crime Commission (2009) 107 ALD 591 referred to
A v Boulton (2004) 136 FCR…

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Details
Case
[2009] FCA 759
Decision Date

CaseChat Overview and Summary

In this case, the applicant, GG, challenged the validity of a summons issued by the Australian Crime Commission (the Commission) and its examiner, Mr Jeffrey Philip Anderson. The applicant argued that the summons was invalid due to alleged errors in the examiner’s reasons for issuing it. The primary legal issue before the court was whether the examiner’s failure to adhere to certain statutory requirements rendered the summons invalid. Specifically, the applicant argued that the examiner did not sufficiently detail his findings on material questions of fact and the evidence or other material upon which those findings were based, in accordance with s 25D of the Acts Interpretation Act 1901 (Cth).

The court examined the statutory obligations placed on the examiner under s 28 of the Australian Crime Commission Act 2002 (Cth) and found that the examiner was required to record in writing the reasons for issuing the summons. The court also considered whether s 25D of the Acts Interpretation Act applied to this obligation. The court held that s 25D, which pertains to the content of reasons given for decisions, was not engaged by the examiner’s obligation to record reasons. It was determined that the requirement to record reasons was distinct from the obligation to provide written reasons to the affected party, and thus, the examiner’s actions did not breach any statutory obligations.

Furthermore, the court addressed the applicant’s contention that the examiner misunderstood the nature of the instrument under which the summons was issued, potentially confusing a special operation with a special investigation. The court found no evidence to support the claim that the examiner misunderstood the statutory framework, concluding that the summons was issued correctly within the scope of a special investigation. The court dismissed the applicant’s challenge to the summons, holding that the summons was valid and the application was without merit.

The final orders of the court were that the applicant's application be dismissed and that the applicant pay the respondents' costs of the application. This decision underscores the importance of adhering to statutory requirements for issuing summonses in special investigations while also affirming the distinction between different types of obligations under administrative law.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs of the application.

Note:

Background

Background to the litigation

The Australian Crime Commission (“the Commission”) is the first respondent and the examiner, Mr Jeffrey Philip Anderson, is the second respondent.The facts and grounds of challengeThe summonses In October 2008, the applicant was served with a summons to appear before the Commission. The summons was issued by the second respondent at 11.26 am on 8 October 2008. I will refer to this summons as the first summons. The first summons stated that the Commission was conducting a special investigation pursuant to a determination of the Board, a copy of which was attached to the summons. The determination of the Board is an eight-page document which is entitled Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008. In these reasons, I will refer to this determination of the Board as the determination. The first summons stated that the examiner, being satisfied that it was reasonable in all the circumstances to do so, pursuant to s 28(1) of the Act, summoned the applicant to attend at 1.00 am on Tuesday, 21 October 2008 before an examiner at an examination to be held for the purpose of the said special investigation. A place was then identified and the summons stated that the applicant’s attendance was required to give evidence of federally relevant criminal activity involving his knowledge of the federally relevant criminal activities of a named person and two named companies. The summons stated that the applicant’s attendance was required “from day to day unless excused or released from further attendance”. There are obligations in the Act relating to disclosure of certain information. An examiner may include a notation on a summons that information about the summons or any official matter connected with it not be disclosed. In this case, the second respondent included such a notation on the first summons. In those circumstances, he was required, and did, serve with the summons a written statement of rights and obligations under s 29B of the Act. The written notice which accompanied the first summons set out the rights and obligations under s 29B(1) and (2) and referred to, without setting out, the rights and obligations under s 29B(3). No reference was made to s 29B(4). Finally, the first summons referred to the obligations of the person served with the summons set out in s 30 of the Act. The second respondent prepared written reasons for his decision to issue the summons. There were some minor redactions of the document put before me. That was done on the basis of a claim for public interest immunity by the respondents. In the Reasons document the examiner set out the purpose of the summons and then under the heading “Material Facts” he stated:“I had regard to the following material for the purposes of being satisfied under subsection 28(1A) of the Australian Crime Commission Act 2002 (Cth) (the Act) that it was reasonable in all the circumstances to issue the summons:(a) A statement of facts and circumstances dated 7 October 2008 and(b) Legal submissions dated 7 October 2008.”The examiner sets out his conclusions under the heading “Consideration”:“Based upon my consideration of the statement of facts and circumstances and the legal submissions, which are referred to above:1)I was satisfied that the operation was within the terms of the Determination and that the Determination was still operative.2)I was satisfied that it was reasonable in all the circumstances that the Summons be issued to the person to whom it is directed.3)I was satisfied that it was reasonable in all the circumstances that the Summons be issued in the terms approved by me.4)I was satisfied that the summons does, so far as is reasonably practicable, set out the general nature of the matters in relation to which it is intended to question the person.5)I was satisfied that, in the particular circumstances of the special ACC operation to which the examination relates, it would prejudice the effectiveness of the special ACC operation for the summons to state beyond that which it does the general nature of the matters in relation to which the examiner intends to question the person.6)I was satisfied that this was an appropriate Summons for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, in the terms approved by me, because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation and that a failure to do so might be contrary to the public interest.”

Evidence

Evidence Before The Court

The relevant provisions of s 28 are as follows:“28 Power to summon witnesses and take evidence(1)An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.(1A)Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. 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; or(c) as soon as practicable after the issue of the summons.(2)A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.…(7)The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.(8)A failure to comply with any of the following provisions does not affect the validity of a summons under subsection (1) of this section:(a)subsection (1A) of this section, in so far as that subsection relates to the making of a record;(b) subsection (2) of this section;(c)section 29A, in so far as that section relates to a summons under subsection (1) of this section. The second respondent recorded in writing the reasons for his decision to issue the summons. Neither party suggested that the second respondent had reasons which were not in the written documents and, in my opinion, he complied with s 28(1A) of the Act. The applicant submitted that, by reason of s 25D of the Acts Interpretation Act, the second respondent was required to set out in his reasons his findings on material questions of fact and refer to the evidence or other material on which those findings were based, and that he had not done that. It was not in this case contended by the respondents, as it had been by the respondents (albeit in the context of s 29 of the Act) in A B Pty Ltd v Australian Crime Commission (2009) 107 ALD 591 at 607 [54] per Flick J, that s 25D was engaged. I do not need to examine the question of whether the second respondent set out his findings or material questions of fact and referred to the evidence or other material on which those findings were based because, in my opinion, s 25D was not engaged and, even if it was, a failure to comply with its provisions would not lead to the conclusion that the second summons is invalid. Section 25D of the Acts Interpretation Act provides as follows:“25D Content of statements of reasons for decisionsWhere an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”

Decision

Reasons for decision

BESANKO J
Section 25D of the Acts Interpretation Act provides as follows:“25D Content of statements of reasons for decisionsWhere an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.” In AA, I considered whether s 25D of the Acts Interpretation Act applied to an examiner’s obligation in s 28(1A) of the Act to record in writing the reasons for his or her decision to issue a summons. I held that it did not. I said (at [29]-[30]):“For s 25D of the Acts Interpretation Act to be engaged, it must be established that s 28(1A) of the ACC Act imposes an obligation on an examiner to give written reasons for his or her decision to issue a summons. In my opinion, the applicant cannot establish that matter. Section 28 does not impose an obligation on an examiner to give reasons to an examinee or to give the written record of his reasons to an examinee: Barnes v Boulton (2004) 139 FCR 356. That decision was not challenged by the applicant. In the course of his decision in that case, Finn J said (at 363-364 [28]-[29]):‘It is important to note that the present application is not one for judicial review of the examiner’s decision. Rather it asserts an entitlement to be provided with Mr Boulton’s record of reasons — an entitlement the satisfaction of which is said to be a precondition to the holding of the examination. The short answer to the claim is that s 28(1A) in its setting gives no such right expressly and there is no conceivable basis in this context for implying such a right: cf R v Young (1999) 46 NSWLR 681 at 686 ff; let alone for making the provision of such reasons a jurisdictional precondition to the holding of an examination. Neither context nor legislative purpose: cf Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 78 ALJR 585 at [11]; and see generally Spigelman, ‘The poet’s rich resource: Issues in statutory interpretation’ (2001) 21 Aust Bar Rev 224; lend any support to such an implication.The legislative judgment not to provide a right to reasons can only be regarded as deliberate, the more so as the ACC Act contemplates that decisions under this Act may be the subject of an application under the ADJR Act: s 57; but the ADJR [sic] gives no right to reasons under s 13 for such decisions. The clear purpose of s 28(1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an ‘audit trail’. Under s 59 of the ACC Act, that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission that is constituted under Pt III of the ACC Act: and see ss 54 and 55 for that Committee’s powers and duties. As is not uncommon with investigative agencies, the Parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the ACC’s investigations with a measure of public accountability through a dedicated parliamentary oversight committee: see eg Intelligence Services Act 2001 (Cth). A right such as the applicant propounds would be an alien presence in such a statutory scheme.’In my opinion, an obligation to record in writing the reasons for a decision or act (which is the obligation imposed by s 28(1A) of the ACC Act) is quite different from an obligation to give written reasons for a decision (which is the obligation postulated by s 25D of the Acts Interpretation Act). The latter, no doubt, includes giving written reasons to the person affected by the decision and publishing written reasons. The obligation in s 28(1A) to record in writing the reasons for the issue of a summons does not engage the obligation in s 25D of the Acts Interpretation Act to set out in an instrument giving the reasons the findings on material questions of fact and to refer to the evidence or other material on which those findings are based.”

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

The Act draws a distinction between an intelligence operation and an investigation (s 7C(1)(c)) and a special operation and a special investigation (s 7C(1)(d), (2) and (3)). The Act contains definitions of “ACC operation/investigation”, “special ACC operation/ investigation” and “intelligence operation” in s 4. They are as follows:“ACC operation/investigation means:(a) an intelligence operation that the ACC is undertaking; or(b)an investigation into matters relating to federally relevant criminal activity that the ACC is conducting.”“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.”“intelligence operation means the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity.”There is no definition in the Act of “investigation”. In [13] above, I set out passages from the second respondent’s reasons for issuing the second summons. It will be seen that paragraphs 1), 5) and 6) refer to “the operation” or “the special ACC operation”. This is clearly an error, but the question is whether it establishes that the second respondent addressed the wrong matter in the sense that he considered that he was issuing the summons for the purposes of a special operation rather than a special investigation, or at least that he did not appreciate the difference. The summons itself refers to a special investigation and it has the determination attached to it. The determination plainly relates to a special investigation. The Statement of Facts and Circumstances document refers to a special investigation and to the determination and the Legal Submissions document refers to the determination and to a special investigation. It seems to me that, looking at the documents as a whole, it has not been established that the second respondent misunderstood the nature of the instrument pursuant to which he was issuing the summons. It is more likely that some of the dangers of using a standard form document have been realised (see the observations of the Full Court of this Court in Australian Crime Commission v NTD8 [2009] FCAFC 86 at [34]). The second ground upon which the applicant challenged the second respondent’s decision to issue the second summons was that he misunderstood the exercise he was performing. The applicant referred to the fact that the Legal Submissions document is referred to under the heading, “Material Facts” and to the fact that in one part of the reasons he states that he had regard to “© My knowledge obtained from a recent examination” and yet when setting out his conclusions under the heading “Consideration” he makes no reference to that piece of information. It seems to me that, however one looks at those matters, neither of them establishes an error which is a jurisdictional error.