Loprete v Australian Crime Commission

[2004] FCA 1476

FEDERAL COURT OF AUSTRALIA

Loprete v Australian Crime Commission [2004] FCA 1476

STATUTES – Australian Crime Commission Act 2002 (Cth) – whether Board of Australian Crime Commission had power to amend an authorisation and determination for a special investigation – whether a new determination required under s 7C

STATUTES – Acts Interpretation Act 190,1 s 33(3) – meaning of “instrument” – whether application limited to instruments of a legislative character – whether contrary intention precluded reliance on s 33(3)

STATUTES – Australian Crime Commission Act 2002 (Cth), s 30(2) – whether abrogated privilege against self-incrimination in relation to foreign offences

Acts Interpretation Act 1901 (Cth) ss 33(1), 33(3)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Crime Commission Act 2002 (Cth) ss 7, 7B, 7C, 7G, 8, 9, 22, 24A, 28, 30, 46B

X v Australian Crime Commission [2004] FCA 1475 referred to
A v Boulton (2004) 207 ALR 342 applied
Barnes v Boulton [2004] FCA 1219 cited

MARLENE LILLIAN LOPRETE v AUSTRALIAN CRIME COMMISSION & GEOFFREY ERNEST SAGE

No S 121 of 2004

FINN J
ADELAIDE
17 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S121 OF 2004

BETWEEN:

MARLENE LILLIAN LOPRETE
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
FIRST RESPONDENT

GEOFFREY ERNEST SAGE
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

17 NOVEMBER 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed with costs

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S121 OF 2004

BETWEEN:

MARLENE LILLIAN LOPRETE
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
FIRST RESPONDENT

GEOFFREY ERNEST SAGE
SECOND RESPONDENT

JUDGE:	FINN J
DATE:	17 NOVEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The two issues raised in this matter – and in the parallel proceeding of X v Australian Crime Commission [2004] FCA 1475 - are (i) whether the Board of the Australian Crime Commission (“the ACC”) had power to, and did, lawfully amend an authorisation and determination it had previously made for a special investigation by the ACC into “federally relevant criminal activity”; and (ii) whether s 30(2) of the Australian Crime Commission Act 2002 (Cth) (“the ACC Act”) has abrogated the privilege against self-incrimination in relation to offences against the laws of a foreign country (“foreign offences”).

2. There are short answers to each of these questions. As to the first, the ACC had an implied power to make the amendment it did (i.e. to extend the period of the special investigation) in virtue of the provisions of s 33(3) of the Acts Interpretation Act 1901 (Cth). As to the second and in light of the decision of the Full Court of this Court in A v Boulton (2004) 207 ALR 342, I am bound to conclude that “the [ACC] Act abrogated any privilege against self-incrimination that the [applicant] might otherwise have had in an examination under the Act”: [72]. It is immaterial whether the possible incrimination was in relation, variously, to a Commonwealth, a State, a Territory or a foreign offence. For the purposes of the ACC Act, it is the privilege itself that has been abrogated not particular possible applications of it: Barnes v Boulton [2004] FCA 1219 at [30], [37]-[41].

   THE APPLICATION AND THE DECISIONS UNDER REVIEW

3. As filed, this application for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) challenged three distinct decisions of the respondents. In light both of what has been abandoned by the applicant at the hearing and of an amendment allowed to be made to the application, the matters in issue have been reduced to the two noted above. The decisions now subject to review are, first, what I will describe as the ACC’s “Amendment to the Authorisation and Determination” of 28 April 2004 and, secondly, the decision of an examiner appointed under the ACC Act which rejected the applicant’s claim to refuse to answer questions on the ground, amongst others, of self-incrimination in relation to offenders under a foreign law.

4. The applicant is the spouse of one of the persons whose conduct was being enquired into by the examiner. She had been summoned as a witness under s 28 of the ACC Act.

   CONCLUSION

5. I have foreshadowed my conclusions above.  The reasons for them are elaborated at length in X’s case in which the same two issues were agitated.  I incorporate those reasons by reference.

6. I will order that the application be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:        

Dated:             17 November 2004

Counsel for the Applicant:	Mr M Burnett
Solicitor for the Applicant:	Patsouris and Associates
Counsel for the Respondent:	Mr A Southall QC with Dr S Donaghue
Solicitor for the Respondent:	Australian Crime Commission
Date of Hearing:	6 October 2004
Date of Judgment:	17 November 2004