MM v Australian Crime Commission

The case of MM v Australian Crime Commission involved the applicants, MM and others, challenging the validity of notices issued by the Australian Crime Commission (ACC) under the Australian Crime Commission Act 2002. The applicants argued that the notices, which were issued to entities other than themselves in connection with the Wickenby Investigation, were invalid because they did not provide the applicants an opportunity to assert legal professional privilege over certain documents. The ACC argued that the notices were valid and that the applicants' failure to assert privilege did not render the notices invalid. The court had to decide whether the notices issued by the ACC were valid and if the applicants' lack of opportunity to assert legal professional privilege invalidated the notices.

The court examined the provisions of the Australian Crime Commission Act, particularly sections 29A and 29B, which were inserted to prevent the disclosure of the existence of processes issued by the Commission during investigations. The court noted that the purpose of these sections was to ensure that the subject of an investigation is not informed of the existence of a notice. The court further found that the Examiners who issued the notices did not fail to consider the applicants' potential entitlement to claim legal professional privilege, as the notices did not need to be issued to the applicants themselves. The court concluded that the notices were not invalid simply because the applicants were not given an opportunity to assert legal professional privilege, as the object of sections 29A and 29B was to prevent the disclosure of the existence of the notices to the applicants.

As a result, the court dismissed the proceeding and ordered that the applicants pay the ACC's costs. The court's decision was based on the understanding that the purpose of sections 29A and 29B was to maintain the confidentiality of the investigation process and to prevent suspects from being alerted, which could lead to the concealment or destruction of evidence. The court found that the applicants' lack of opportunity to assert privilege did not invalidate the notices issued by the ACC.