National Crime Authority v A1
[1997] FCA 518
•16 JUNE 1997
CATCHWORDS
JUDICIAL REVIEW - National Crime Authority - Jurisdiction to conduct special investigation - Nature of special investigation - Reference to Authority in respect of matter relating to relevant criminal activity - Notice of reference required to describe general nature of circumstances or allegations constituting relevant criminal activity - Whether sufficient particularity in notice - Functions of notice of reference.
CONSTITUTIONAL LAW - Powers of Commonwealth Parliament - Reference by State Minister to National Crime Authority in respect of matter relating to State offences - Commonwealth Act defining relevant criminal activity to include offences against State laws - Validity - Power to make laws with respect to State offences - Whether State reference valid.
National Crime Authority Act 1984 (Cth) ss 11, 13, 14, 28, 29
National Crime Authority (State Provisions) Act (Vict) ss 4(2), 5, 17, 18
Minister for Immigration and Ethnic Affairs v Hell's Angels Motorcycle Club Inc (unreported, Full Court 16 December 1991)
Melbourne Home of Ford Pty Ltd v Trade Practices Commission [No 3] (1980) 47 FLR 163
MFI v National Crime Authority (1991) 33 FCR 449
McGuinness v Attorney-General (Vict) (1940) 63 CLR 73
Ross v Costigan (1982) 41 ALR 319
Douglas v Pindling [1996] AC 890
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Mannah v State Drug Crime Commission (1988) 13 NSWLR 43
A v National Crime Authority (unreported, 27 November 1987)
Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423
AB v National Crime Authority (unreported, Full Court 3 July 1996)
BP Australia Ltd v Amann Aviation Pty Ltd (1996) 137 ALR 447
Reg v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535
Re Cram; Ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117
NATIONAL CRIME AUTHORITY and MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA and MINISTER FOR POLICE AND EMERGENCY SERVICES FOR VICTORIA and INTER-GOVERNMENTAL COMMITTEE and BETTY KING QC and JOHN BROOME v A1 and A2 VG 421 & 422 of 1996
CORAM:Black CJ, von Doussa and Sundberg JJ
PLACE:Melbourne (Heard in Sydney)
DATE:16 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 421 & 422 of 1996
GENERAL DIVISION )
BETWEEN:NATIONAL CRIME AUTHORITY
First Appellant
and
MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA
Second Appellant
and
MINISTER FOR POLICE AND EMERGENCY SERVICES FOR VICTORIA
Third Appellant
and
INTER-GOVERNMENTAL COMMITTEE
Fourth Appellant
and
BETTY KING QC
Fifth Appellant
and
JOHN BROOME
Sixth Appellant
AND:A1
First Respondent
and
A2
Second Respondent
CORAM:Black CJ, von Doussa and Sundberg JJ
DATE:16 June 1997
PLACE:Melbourne (Heard in Sydney)
MINUTES OF ORDER
In each matter the Court orders that:
The appeal be allowed.
The order of the primary judge be set aside and in lieu thereof it be ordered that the amended application be dismissed with costs.
The respondents pay the appellants' costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
) No. VG 421 & 422 of 1996
VICTORIA DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: NATIONAL CRIME AUTHORITY
First Appellant
and
MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA
Second Appellant
and
MINISTER FOR POLICE AND EMERGENCY SERVICES FOR VICTORIA
Third Appellant
and
INTER-GOVERNMENTAL COMMITTEE
Fourth Appellant
and
BETTY KING QC
Fifth Appellant
and
JOHN BROOME
Sixth Appellant
AND: A1
First Respondent
and
A2
Second Respondent
CORAM: BLACK CJ, VON DOUSSA and SUNDBERG JJ
PLACE : MELBOURNE (HEARD IN SYDNEY)
DATE: 16 JUNE 1997
REASONS FOR JUDGMENT
BLACK CJ:
These are appeals from an order made by a judge of this court declaring that certain notices of reference to the National Crime Authority (“the NCA”) by the Minister for Justice for the Commonwealth do not comply with s13(2) of the National Crime AuthorityAct 1984 (Cth) (“the Act”) and are invalid. The appellants also appeal against a declaration that a notice of reference by the Minister for Police and Emergency Services for Victoria is invalid and they appeal against the consequential orders and declarations made by the judge.
The facts and statutory provisions with which these appeals are concerned are set out in the joint reasons for judgment of von Doussa and Sundberg JJ which I have had the advantage of reading. Their Honours have also outlined the reasoning of the learned primary judge.
The source of the power of the Commonwealth Minister to refer a matter relating to a relevant criminal activity to the NCA is s13(1) of the Act and it is the Minister’s notice in writing under s13(1) that defines the limits of the matter referred. According to its terms, s13(1) will permit the reference of a matter that relates to a “relevant criminal activity” (as defined by s4(1)), in so
far as the “relevant offence” (as also defined by s4(1)) is, or the relevant offences include, an offence or offences against a law of the Commonwealth. Having regard to the broad definition of “relevant criminal activity” as meaning (amongst other things) “any allegations, that a relevant offence may have been ... committed against a law of the Commonwealth ...” it is clear that, subject to any limitations contained in or derived from other parts of the Act, s13(1) will allow a reference that is very wide in scope. In particular, s13(1) contains no requirement that a matter that is the subject of a notice - and thus a matter referred to the NCA for investigation - be limited by reference to specific criminal activities, or to a time-frame, or to any particular person or persons or to any specific conduct. It is important to bear this in mind when considering the associated provisions of s13(2), to which I now turn.
The requirement of s13(2)(a) that a notice under s13(1) must describe the general nature of the circumstances or the allegations constituting the relevant criminal activity means that those circumstances or allegations must have a content sufficient to give them a meaningful “general nature”, but that does not have the consequence that a notice must necessarily refer to specific matters such as particular persons or particular conduct.
Section 13(2)(b) throws little light on the permissible breadth of a reference under s13(1). Such light as it does shed on that question tends to support the conclusion that the Parliament intended that a reference could be very broad in scope since no particular offence need be
specified in the notice and, accordingly, no particular offence need be the subject of the reference. Section 13(2)(c) is directed to the purpose of the investigation and does not bear upon the permissible breadth of a reference. The same observations apply to s14(1) of the Act, which deals with references by a State Minister.
I agree with von Doussa and Sundberg JJ, for the reasons they give, that considerations relating to the important functions to be served by a notice of reference do not lead to the conclusion that, to be valid, a notice of reference must identify specific criminal activities, persons and conduct and I agree that the notices were not deficient in these respects. I consider however that in two respects, both critical to the validity of the notices, they were deficient.
In the present case, the allegations constituting the relevant criminal activity are not claimed to relate to members of clubs at large, but to involve members of clubs or persons associated with those members or clubs which clubs were identified by the NCA, on specified dates, to the Ministers responsible for the references. The scope of the references, and thus the powers of the NCA with respect to them, are very substantially limited by the identification of the “certain clubs”.
The learned primary judge concluded that the evidence did not enable identification of the clubs other than from references to them as “Outlaw Motor Cycle Gangs” in resolutions of the Inter-Governmental Committee of 25 May 1995 and 9 November 1995 but he concluded that “the matter” intended to be referred related to:
“A body of facts which might reveal whether offences, as alleged in clauses 2 and 3 of the respective references have been, or are being, committed by members of certain clubs described as “Outlaw Motor Cycle Gangs” or persons associated with those members or clubs, which clubs were identified by the NCA to the Ministers responsible for each reference.”
Although, for the reasons given in the joint judgment, it is not necessary for the validity of a notice of reference that it identify any particular person or organisation, if in truth a reference is concerned with people or organisations that have a distinctive nature or characteristics then a fair description of “the general nature of the ... allegations” relating to them may, depending on the circumstances, require some reference to that nature or those characteristics. Here it is necessary again to bear in mind that one of the purposes of the requirement that the notice of reference describe “the general nature” of the circumstances or allegations constituting the relevant criminal activity is to enable a person summoned under s28(1) of the Act to form a judgment as to whether the proposed interrogation, and questions asked during it, are authorised by the Act: see AB v National Crime Authority (unreported, Full Court, 3 July 1996).
Broad though a reference may permissibly be, there is plainly a very great difference between, on the one hand, allegations that members of “certain clubs” have been engaged in criminal activities, without there being any hint of which of the thousands of different sorts of clubs that there are in the community might be involved and, on the other hand, allegations that members of certain “outlaw motor cycle gangs” have been so engaged. The question then is: if, as here, a reference in fact relates to clubs described as “outlaw motor cycle gangs”, does a reference merely to “certain clubs” sufficiently describe, when taken with the other parts of the description, the general nature of the allegations? In my view it does not, and for the reason that the general description of the clubs concerned as “outlaw motor cycle gangs” is so distinctive as to stamp the allegations with a particular character such that a fair description of the general nature of the allegations will not be given by a reference only to “certain clubs”. In that respect the notices were deficient, in my view. It is not necessary to determine whether, if the notices had gone a step further than they did and had referred to “certain motor cycle clubs” that would have been sufficient.
In my view, the notices of reference were also deficient because the matter they sought to refer to the NCA included questions as to allegations about criminal activities that may have been engaged in at some time in the past without any indication at all being given of the period or periods in the past to which the allegations relate.
The question here is whether the allegations constituting the relevant criminal activities, unlimited by reference to any time-frame with respect to criminal activities in the past, have sufficient content to have a meaningful “general nature” and whether what is described is a description of the “general nature” of allegations, as required by s 13(2)(a). In answering this question it must be borne in mind that it relates to allegations, that the allegations concern possible criminal activities - that is to say, acts that may have been done at particular times in the past - and that the question arises in the context of the conferral of powers of investigation. The defining and informing purposes of s 13(2)(a) must also be borne in mind.
In some cases, the content of allegations of criminal activities may be such as to fix them within a time frame as, for example, if it were alleged that they had occurred in connection with other activities of generally known, or specified, recent date. But that is not the position in this case and the allegations could be taken as relating to activities that occurred shortly prior to the giving of the notices, or to activities much longer ago. They could also be taken as relating to continuous activity over a long period. The differences, from the viewpoint of both an investigator and a person from whom information is sought, could well be profound and of fundamental importance to the potential scope of an investigation and the matters potentially relevant to it.
In my view, in the present context and given the range of possibilities left open and the potential importance of a time-frame, a failure to provide any time-frame at all with respect to the allegations of criminal activities in the past involves a failure to give the requisite content to the allegations and to provide a description of the general nature of the allegations as required by s 13(2)(a). This does not of course mean that specific dates should have been given for that would be to go beyond the requirement of a description of the general nature of the allegations.
I consider therefore that the notices in issue in these appeals were deficient in that they did not, in two different respects, describe the general nature of the allegations constituting the relevant criminal activity. As the requirements of s 13(2)(a) are mandatory, I conclude that the notices were invalid and I would dismiss the appeals with costs.
I agree with von Doussa and Sundberg JJ, for the reasons they give, that the respondents’ contentions on the constitutional issue and their contentions concerning the approval of the reference by the Minister for Police and Emergency Services for Victoria should be rejected.
I certify that this and the preceding 7 pages are a true copy of the reasons for judgment of the Honourable Chief Justice Black.
Associate
Dated
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 421 & 422 of 1996
GENERAL DIVISION )
BETWEEN:NATIONAL CRIME AUTHORITY
First Appellant
and
MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA
Second Appellant
and
MINISTER FOR POLICE AND EMERGENCY SERVICES FOR VICTORIA
Third Appellant
and
INTER-GOVERNMENTAL COMMITTEE
Fourth Appellant
and
BETTY KING QC
Fifth Appellant
and
JOHN BROOME
Sixth Appellant
AND:A1
First Respondent
and
A2
Second Respondent
CORAM:Black CJ, von Doussa and Sundberg JJ
DATE:16 June 1997
PLACE:Melbourne (Heard in Sydney)
REASONS FOR JUDGMENT
von DOUSSA and SUNDBERG JJ:
The issues
The questions raised by these appeals are whether a reference to the National Crime Authority ("the NCA") by the Minister for Justice of the Commonwealth complies with s 13(2) of the National Crime Authority Act 1984 (Cth) ("the Act"), and whether a reference to the NCA by the Minister for Police and Emergency Services for Victoria complies with s 5(1) of the National Crime Authority (State Provisions) Act 1984 (Vict) ("the Victorian Act") or with s 14(2) of the Act.
The Commonwealth legislation
The functions of the NCA are described in s 11 of the Act. They are of two types - "general functions" which are the subject of sub-s (1), and "special functions" which are the subject of sub-s (2). The general functions include the collection of criminal information and intelligence relating to "relevant criminal activities" and the dissemination of that information to law enforcement agencies, the investigation of matters relating to relevant criminal activities, and the co-ordination of investigations by Commonwealth Task Forces, State Task Forces and joint Commonwealth and State Task Forces into matters relating to relevant criminal activities. The special functions are described as follows:
(a)where a reference to the Authority made under section 13 is in force in respect of a matter relating to a relevant criminal activity - to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory; and
(b)where a reference to the Authority made in accordance with section 14 by a Minister of the Crown of a State is in force in respect of a matter relating to a relevant criminal
activity - subject to subsection 14(1), to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State.
An investigation conducted in performance of the special functions is a "special investigation": s 4(1).
References to the NCA by the Commonwealth and a State are governed by ss 13 and 14 respectively. Section 13(1) empowers the Minister, after consulting the Inter-Governmental Committee ("IGC"), by notice in writing to refer a matter relating to a relevant criminal activity to the NCA for investigation in so far as the relevant offence or offences are or include an offence or offences against a law of the Commonwealth or of a Territory. Section 14(1) requires the NCA to investigate a matter relating to a relevant criminal activity referred to it by notice in writing by a State Minister, with the approval of the IGC, in so far as the relevant offence or offences are or include an offence or offences against a law of the State. The IGC is established by s 8, and consists of the Minister administering the Act and a Minister of the Crown of each participating State. A "participating State" is one which participates in the activities of the IGC: s 4(1). Section 13(2) provides:
A notice under subsection (1) referring a matter to the Authority for investigation:
(a)shall describe the general nature of the circumstances or allegations constituting the relevant criminal activity;
(b)shall state that the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or a law of a Territory but need not specify the particular offence or offences; and
(c)shall set out the purpose of the investigation.
Section 14(2), which deals with notices under s 14(1), is in the same terms as s 13(2).
The expression "relevant criminal activity" is defined as
any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, committed against a law of the Commonwealth, of a State or of a Territory.
The expression "relevant offence" means an offence:
(a)that involves 2 or more offenders and substantial planning and organization;
(b)that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques;
(c)that is committed, or is of a kind that is ordinarily committed, in conjunction with offences of a like kind; and
(d)that involves theft, fraud, tax evasion, currency violations, illegal drug dealings, illegal gambling, obtaining financial benefit by vice engaged in by others, extortion, violence, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, harbouring of criminals, forging of passports, armament dealings or illegal importation or exportation of fauna into or out of Australia, or that involves matters of the same general nature as one or more of the foregoing, or that is of any other prescribed kind ....
Section 22(1) empowers a judge of a prescribed court to issue a search warrant on the application of a member of the NCA who has reasonable grounds for suspecting that there may be in any premises a thing connected with a matter into which the NCA is conducting a special investigation. The warrant must, inter alia, include a statement of the purpose for which the warrant is issued, and the statement must contain a reference to the matter relating to a relevant criminal activity into which the NCA is conducting a special investigation and with which the thing is connected: sub-s (5). Section 25(1) empowers the NCA to conduct hearings for the purposes of a special investigation. At a hearing the NCA may examine or
cross-examine any witness on any matter the NCA considers relevant to the special investigation: sub-s (8). It is an offence to give evidence that is to the witness' knowledge false or misleading: s 33.
Section 28 empowers a member of the NCA, for the purposes of a special investigation, to summon a witness to appear at a hearing to give evidence and to produce such documents or other things as are referred to in the summons: sub-ss (1) and (7). A summons must be accompanied by a copy of the notice by which the matter to which the hearing relates was referred to the NCA under s 13 or in accordance with s 14: sub-s (2). Unless the member is satisfied that to do so would prejudice the effectiveness of the special investigation, the summons must set out, so far as is reasonably practicable, "the general nature of the matters" in relation to which the NCA intends to question the person. However, the NCA may question the person in relation to any matter that relates to a special investigation: sub-s (3). Failure to attend or answer questions without "reasonable excuse" is an offence: s 30. Section 29(1) empowers a member, by notice in writing, to require a person to attend and produce a document or thing that is relevant to a special investigation. Failure to comply with the notice without "reasonable excuse" is an offence: sub-s (3).
In certain circumstances a summons issued under s 28 and a notice given under s 29 must contain a notation which prohibits disclosure of information about the summons or notice or any official matter connected with it: s 29A(1) and (2)(a). In other circumstances a summons or notice may contain such a notation: s 29A(2)(b). A person who receives a summons or notice containing a notation must not disclose the existence of the document or any information about it, or the existence of, or any information about, any official matter connected with the summons or notice: s 29B(1). Sub-section (2) lists a number of exceptions to the prohibition in sub-s (1), one of which is disclosure to a legal practitioner
for the purpose of obtaining legal advice or representation relating to the summons, notice or matter.
Under ss 32 and 32A a person claiming to be entitled to refuse to produce a document under s 29, or to answer a question or produce a document at a hearing, may apply to the Federal Court for an order to review the decision of the NCA or, if the matter relates to a State notice or summons, to a State Supreme Court. Decisions of the NCA may also be subject to judicial review by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977.
The references
At a meeting on 25 May 1995 the IGC resolved that all State and Territory Members approve the issue of new State and Territory references to enable the NCA to undertake investigations into the activities of "Outlaw Motor Cycle Gangs". It was noted that the Commonwealth Minister for Justice, following consultation with the IGC, intended to issue a new Commonwealth reference to enable the NCA to investigate those activities. On the same day the Minister gave notice to the NCA that the matter referred to in the resolution had been referred to it. On 5 June 1995 the Minister for Police and Emergency Services of Victoria gave notice to the NCA that the matter referred to in the resolution had been referred to it. Notices to the same effect were given by the other States and the Territories.
By the Commonwealth reference (as later revised and dated 9 November 1995) the Minister referred to the NCA for investigation "the matter set out in the Schedule relating to relevant criminal activities in so far as the relevant offences are, or include, an offence or offences against the laws of the Commonwealth or a Territory", and requested the NCA to give him a report on its findings. The Schedule is in part as follows:
MATTER BEING REFERRED
1.Whether a relevant offence has been, or is being, committed as alleged in clause 2, and, if so:
(a)the identity of the person or persons involved; and
(b)the nature of their involvement.
GENERAL NATURE OF THE CIRCUMSTANCES OR ALLEGATIONS
CONSTITUTING THE RELEVANT CRIMINAL ACTIVITIES
(PARAGRAPH 13(2)(a) OF THE ACT)
2.The general nature of the allegations is that members of certain clubs, such clubs having been identified to me by the Authority on 9.11.1995, or persons associated with the members or clubs, may have been, or may be being, in concert with one another or other persons, engaged in one or more of the following activities ....
Then follows a list of "activities" which include illegal importation of narcotics, bribery and most of the matters described as offences in par (d) of the definition of "relevant offence". The reference continues:
STATEMENT OF RELEVANT OFFENCES AGAINST ONE OR
MORE LAWS OF THE STATE [OR] COMMONWEALTH OR A
TERRITORY (PARAGRAPH 13(2)(B) OF THE ACT)3.For the activities described in paragraph 2 ..., the relevant offences are, or include, an offence or offences against one or more laws of the Commonwealth or a Territory, each being an offence ....
Then follows a transcription of pars (a) to (c) of the definition of "relevant offence" and of many of the offences described in par (d) thereof. The reference concludes with a statement of the purpose of the investigation (s 13(2)(c)). This is said to be to collect information relating to relevant criminal activities, make recommendations to the relevant authorities as to
the reform of the law relating to those activities, identify offenders, assemble evidence, and give it to prosecuting authorities.
The Victorian reference is in substantially the same form as the Commonwealth reference save that in clause 2 the "activities" are described by reference to State offences. The references by the other State and Territories are in the same slightly modified form.
The notices
Commonwealth and Victorian notices signed by the fifth appellant, a member of the NCA, were served on each respondent pursuant to s 29 of the Act and s 18 of the Victorian Act. The notices contain a notation pursuant to s 29B of the Act and the corresponding section of the Victorian Act. They require production of the documents specified in the Schedule on the ground that they are "relevant" to the special investigation being conducted by the NCA pursuant to the Commonwealth and State references.
The summons
A Commonwealth and Victorian summons issued by the fifth appellant was served on the first respondent pursuant to s 28 of the Act and s 17 of the Victorian Act. It is in the form set out below, save that in the summons the company and club are referred to by their proper names:
The National Crime Authority is conducting a special investigation into the matter that has been referred to it as set out in the notices, copies of which are annexed to the summons as Annexure A.
Pursuant to sub-section 28(1) of the National Crime Authority Act 1984 and sub-section 17(1) of the National Crime Authority (State Provisions) Act 1984, you are required:
(a)to attend at 10:00 am on Friday 16 February 1996 before the Authority at the hearing to be held for the purposes of the abovementioned investigation at 340 Albert Street, East Melbourne to give evidence in relation to:
Your association with, and knowledge of, the business and other activities of the company known as [X Pty Ltd] and the [Y Club] ....
...
The summons contained a notation pursuant to s 29A of the Act and the corresponding section of the Victorian Act.
The proceedings
The respondents commenced proceedings challenging the jurisdiction and powers of the NCA to proceed with the special investigation in relation to the matter or matters described in the notices and the summons. Merkel J declared that the notices of reference, the notices to attend and the summons were invalid. He set aside the decisions of the Ministers to give the notices of reference and the decisions of the fifth appellant to give and issue the notices to attend and the summons. The appeal is from those declarations and orders.
Primary judge's reasoning
His Honour was of the view that the obvious purpose of requiring a description of the "matter" referred is to enable those interested in or affected by exercise of the coercive power of the NCA to ascertain whether that power is being exercised lawfully. He identified the "matter" as:
A body of facts which might reveal whether offences, as alleged in clauses 2 and 3 of the respective references, have been, or are being, committed by members of certain clubs or persons associated with those members or clubs, which were identified by the NCA to the Ministers responsible for each reference.
He was of the view that in order for the notices of referral to comply with ss 13(2) or 14(2) they
must provide sufficient information of the kind provided for to enable -
(a)the NCA to ascertain and determine the extent or limit of its statutory authority to investigate the matter referred;
(b)the NCA and persons subjected to the exercise of its coercive power to ascertain and determine the issues of relevance and purpose to which I have referred;
(c)a Court, if called upon to do so, to adjudicate on each of the matters set out in (a) and (b).
The issue of relevance is that raised by provisions such as s 25(8) - "any matter that the Authority considers relevant to the special investigation", and s 29(1)(b) - "a document or thing that is relevant to a special investigation". The issue of purpose is that raised by provisions such as s 28(7) - "for the purposes of a special investigation".
His Honour observed that the notices of reference did not identify any of the clubs, members of the clubs or their associates referred to in the notices. They did not describe any conduct of the unidentified persons or any transactions the subject of the allegations. Nor did they provide any relevant time-frame within which or in relation to which the alleged criminal activities were engaged in, except that those activities "may be being" committed. And they identified the alleged criminal activities only in the broadest of terms by reference to areas of alleged criminal conduct.
He concluded that the references did not meet the criteria he had laid down. Speaking of the Commonwealth reference his Honour said:
It does not enable the ascertainment, in any meaningful way, even in general terms, of the limits or extent of the NCA's powers nor does it enable, in any meaningful way questions of relevance or purpose to be determined. The notice does not even disclose that the clubs in question are limited to "Outlaw Motor Cycle Gangs", whatever that term may have been intended to mean.
Ultimately, absent some further information as to time, transactions, conduct, clubs or individuals involved the notice in the present case virtually empowers the NCA to embark on a roving investigation the limits of which, are in reality, set by its own investigatory conduct rather than by the terms of reference.
Nature of an investigation
In the Second Reading Speech on the Bill which became the Act the Minister said:
Police investigations are concerned essentially with particular offences known or reasonably believed to have been committed, with the starting point usually being the complaint of a victim or discovery by the police of the results of a crime ....
... it is of the nature of organised and sophisticated crime that particular manifestations of that crime, particularly in the areas of drug importation, corporate fraud and tax evasion, may not come to the attention of the police forces. Activities of this kind may be so intricately interwoven, may involve so many jurisdictions and may be so well camouflaged under apparently legitimate ways of doing business that they may well not cause any one police force to take notice.
The Costigan Royal Commission has shown that, by following a series of financial leads in a determined exploratory fashion, widespread and serious conspiracies can be uncovered.
See Hansard, House of Representatives 7 June 1984, 3092-3093.
A paradigm police investigation of an apparent murder has as its starting point the finding of a dead body with stab wounds. With the "organised crime" with which the NCA is concerned (cf pars (a) and (b) of the definition of "relevant offence"), there may be no offence apparent. There might be no more than an apprehension that an offence or offences
may have been committed. For example, the discovery of large quantities of a particular drug on the streets may give rise to a belief that organised drug importation offences have been committed by unknown persons. The difference between the typical police investigation and a typical NCA investigation is reflected in the definition of "relevant criminal activity". These words themselves might lead one to expect a definition consisting of a list of offences. But instead they mean "any circumstances implying" that a relevant offence may have been committed or may be in the course of being committed, and "any allegations" that a relevant offence may have been committed or may be in the course of being committed. So the concern is with possible, undiscovered and incomplete offences.
Relevance
The relevance of a fact in litigation is ultimately determined by the pleadings. But even with the aid of pleadings it is sometimes impossible to declare a fact relevant or irrelevant until other facts and circumstances have been established. The relevance of a particular fact to an issue will often depend upon the combination of facts of which it forms a part. See, for example, Minister for Immigration and Ethnic Affairs v Hell's Angels Motorcycle Club Inc (unreported, Full Court 16 December 1991). In Melbourne Home of Ford Pty Ltd v Trade Practices Commission [No 3] (1980) 47 FLR 163 at 173 the Full Court, speaking of s 155 of the Trade Practices Act 1974, said:
In the case of a matter that may constitute a contravention, the chairman may not know the constitutive facts of a contravention (if there has been one) and he may ultimately ascertain that there has been no contravention in the conduct or transaction which he is investigating. Because his attention has been drawn to a particular act or transaction which warrants investigation and because he has reason to believe that the person to whom the notice is given is capable of furnishing information relating to the matter under investigation he is engaged in a function of investigation, not in a task of proving an allegation. The power conferred by s 155(1) is in aid of
that function and is a power which authorizes inquiries both wide in scope and indefinite in subject matter. It is an investigative power which is under consideration here and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined.
In MF1 v National Crime Authority (1991) 33 FCR 449, in which the relevance of the information contained in documents required to be produced under s 28 of the Act was in question, Ryan J said, at 471, that the above passage recognises "a much broader concept of relevance than the notion which is applied to determine admissibility of evidence in adversary litigation".
In the same case Jenkinson J (with whom Gray J agreed), in rejecting a contention that the documents sought to be produced had no relevance to the subject matter of the special investigation, said at 465:
In any event, the word "relevant" in s 29(1)(b) does not in my opinion denote a narrowly confined connection between the "document or thing" in question and the subject matter of the special investigation. ... The word "relevance" suggests to a lawyer that connection between evidence and an issue of fact for determination by a court which the law of evidence requires, and for that reason may be thought an inappropriate term by which to signify the required connection between documents or testimony and an investigative process, which for much of its course is devoid of anything resembling a curial issue of fact.
In McGuinness v Attorney-General (Vict) (1940) 63 CLR 73 at 86 Latham CJ, dealing with an objection to the relevance of a particular question to the subject matter of inquiry by a Royal Commission, said:
The Royal Commissioner ... was not appointed to determine an issue between the Crown and a party, or between other parties. The commission was appointed to conduct an investigation for the purpose of discovering whether there was any evidence of the suggested bribery. Such an investigation may be, and ought to be, a searching investigation - an inquisition as distinct from the determination of an issue. In the course of such an inquiry it would or at least might be a valuable step forward if the identity of the persons giving information to the editor of the newspaper could be discovered so that they could be summoned for the purpose of giving evidence on oath as to their knowledge, or as to the source of their information if they had no direct personal knowledge of the matters in question.
Starke J said that the inquiry was "what might be described as a fishing inquiry": at 92. Dixon J said that the question objected to would not be "relevant" in adversary litigation, but "the inquiry commanded by the commission is not the trial of an issue, but the ascertainment of unknown facts": at 105.
In Ross v Costigan (1982) 41 ALR 319 at 334-335 Ellicott J said:
In determining what is relevant to a Royal Commission inquiry, regard must be had to its investigatory character. Where broad terms of reference are given to it, as in this case, the Commission is not determining issues between parties but conducting a thorough investigation into the subject matter. It may have to follow leads. It is not bound by the rules of evidence. There is no set order in which evidence must be adduced before it. The links in a chain of evidence will usually be dealt with separately. Expecting to prove all the links in a suspected chain of events, the Commission or counsel assisting, may nevertheless fail to do so. But if the Commission bona fide seeks to establish a relevant connection between certain facts and the subject matter of the inquiry, it should not be regarded as outside its terms of reference in doing so. This flows from the very nature of the inquiry being undertaken.
... This does not mean, of course, that a Commission can go off on a frolic of its own.
However, I think a court if it has power to do so, should be very slow to restrain a Commission from pursuing a particular line of questioning and should not do so unless it is satisfied, in effect,
that the Commission is going off on a frolic of its own. If there is a real as distinct from a fanciful possibility that a line of questioning may provide information directly or indirectly relevant to the matters which the Commission is required to investigate under its letters patent, such a line of questioning should, in my opinion, be treated as relevant to the inquiry.
Ellicott J's decision was affirmed by the Full Court which said that "what questions the Commissioner should ask, or allow to be asked, is a matter for his own good sense and judgment", and that what he can look at is "what he bona fide believes will assist him in his inquiry": (1982) 41 ALR 337 at 350-351.
In Douglas v Pindling [1996] AC 890, after referring to Ross v Costigan at first instance and in the Full Court, and to observations in the court below that certiorari should not go unless the commission had gone off "on a frolic of its own or is acting mala fide", and that because the commission is an investigative body, it "must necessarily embark on what might be regarded as fishing", the Privy Council said at 904:
In their Lordships' opinion these passages correctly indicate the considerations which should guide a commission of inquiry in deciding on the issue of summonses for the production of banking records of an individual or a company. If there is material before the commission which induces in the members of it a bona fide belief that such records may cast light on matters falling within the terms of reference, then it is the duty of the commission to issue the summonses. It is not necessary that the commission should believe that the records will in fact have such a result. The commission can do no more than pursue lines of inquiry that appear promising. These lines may or may not in the end prove productive.
As regards the function of the court in the event that the commission's decision to issue a summons is challenged, the matter is to be approached upon the traditional judicial review basis. ... In particular, the decision of the commission should not be set aside unless it is such as no reasonable commission, correctly directing itself in law, could properly arrive at. It would appear
that this is the test which Ellicott J had in mind ... when he spoke of a commission going off "on a frolic of its own".
Earlier in his judgment in MF1 Jenkinson J had referred to another aspect of "relevance". At 461-462 he said:
it follows in my opinion from the nature of the power to compel disclosure of information, by evidence and the production of documents, in aid of an investigative function that the evaluation of probabilities concerning the usefulness of the information is, within limits, for the investigator, and certainly not for the persons from whom disclosure is sought. When those persons are closely associated with the very persons against whom the allegations giving rise to the investigation are made, the disadvantages of giving weight to the former persons' evaluations of relevance or usefulness are obvious.
His Honour then quoted the following passage from the judgment of Mason, Wilson and Dawson JJ in National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 323-324:
It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the subject looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry.
Jenkinson J then added:
The investigator's acquiescence in, or objection to, an assertion by the suspect, or by the suspect's agent, that a topic or part of a document was irrelevant to the investigation would not infrequently afford the suspect a means of determining, by inference, how the inquiry was going.
Alleged deficiencies in references
(a)Criminal activities too broadly described
The primary judge listed four features of the Commonwealth reference each of which, at first sight, he appears to have considered a defect. His Honour applied what he said about the Commonwealth reference to the Victorian reference. The same course is adopted in this judgment. One feature of the reference was that it "identifies the alleged criminal activities in the broadest of terms by reference to areas of alleged criminal conduct" such as narcotics and tax evasion. So far as presently relevant s 13(2)(a) requires the notice to describe the general nature of the allegations constituting the relevant criminal activity. The definition of "relevant criminal activity", for present purposes, means any allegations that a relevant offence may have been or may be in the course of being committed. Reading par (a) and the definition together, the reference must describe the general nature of the allegations that a relevant offence may have been or may be in the course of being committed. The reference states that the general nature of the allegations is that various persons may have been engaged in or may be engaging in one or more of a list of activities being relevant offences. It does not blandly assert that persons are alleged to have engaged in or to be engaging in relevant criminal activity. It describes the activities by reference to ten of the twenty or so offences that fall within par (d) of the definition of "relevant offence". Further, while some of the offences are described in the broad language of the definition (eg tax evasion, theft and violence), others are more specific. For example, while the definition speaks of "illegal drug dealings", the reference specifies "the alleged importation of narcotic goods, the possession of illegally imported narcotic goods or the conveyance of illegally imported narcotic goods". The offence of "fraud" in the definition is in the reference confined to "fraud on the Commonwealth". The concluding words of the definition - "or that involves matters of the same general nature as one or more of the foregoing" - are not employed in the reference. Rather, two specific activities are singled out. One is "forging of
Commonwealth documents" - presumably of the same general nature as forging passports. The other is "money laundering, within the meaning of s 81 of the Proceeds of Crime Act 1987".
It is to be observed that in describing the general nature of the allegations in purported compliance with s 13(1)(a), the notice of reference does what par (b) says it does not have to do. That is to say, it describes, with greater or lesser degrees of specificity, particular offences against laws of the Commonwealth. A reference would comply with par (b) if it merely stated that the relevant offences are offences against laws of the Commonwealth. This reference is much more specific. While it does not, except in the case of money laundering, specify the sections of the statutes which create the relevant offences, it does specify activities which are in fact such offences. For example, the illegal importation of narcotic goods is an offence under s 233B(1)(b) of the Customs Act 1901, possessing such goods is an offence under s 233B(1)(c), conveying such goods is an offence under s 233B(1)(caa), forging Commonwealth documents is an offence under s 67 of the Crimes Act 1914, bribery and corruption of Commonwealth officers is an offence under s 73 of that Act, and fraud on the Commonwealth is an offence under s 29D. That which need not be specified under s 13(2)(b) (ie the particular offence or offences) may, if in fact specified, form part of the general description under par (a). In the case of this reference, that specification does constitute part of the general description of the allegations constituting the relevant criminal activity within par (a).
In our view the notice does not, in the respect at present under consideration, fail sufficiently to describe the general nature of the allegations for the purposes of s 13(2)(a).
Although the primary judge appears to have treated the broad identification of the alleged criminal activities as a defect in the reference, it is not clear that this was a ground upon which he struck it down. After listing the four features of the reference referred to above, his Honour said that in the absence of some further information "as to time, transactions, conduct, clubs or individuals involved", it did not satisfy s 13(2). There is no mention of the broad description of the alleged criminal activities. In any event, for the reasons we have given, the description in the reference does not fail in this respect to satisfy s 13(2)(a).
(b)No time-frame
The absence of a time-frame was central to the primary judge's view that the reference failed to comply with s 13(2)(a). However, several considerations have led us to conclude that the specification of a time-frame is not required in order for a reference to describe the "general nature of the circumstances or allegations constituting the relevant criminal activity". The first is that the NCA engages in investigations unlike those conducted by the ordinary police forces. It does not necessarily proceed from a discovered offence. The inquiry may be as to whether any relevant offences have been committed or are being committed. Putting aside possible current offences, there is no reason why an investigation into possible past offences should be limited as to time. The imposition of a time-frame might quite arbitrarily prevent the investigation or discovery of certain crimes. The second related consideration concerns issues of relevance in the sense earlier described. It is an investigative power which is under consideration, and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined. Cf Melbourne Home of Ford (1980) 47 FLR at 173. The third consideration is that the information available may not permit the specification of a time-frame. For example, an informer may allege that named persons have been defrauding the Commonwealth "for a very long time", and attempts to elicit particulars of the duration of the misfeasance are unsuccessful. In this case a time-
frame could not be included in a reference since that information could not be gleaned from the allegation. It would be very odd if the NCA, although aware of the allegation, could not conduct a special investigation into it.
Accordingly the statement of a time-frame is not required in order that there be a description of the general nature of the circumstances or allegations constituting the relevant criminal activity.
(c)Persons the subject of allegations not identified
The reference does not identify the clubs the members of which may have engaged in the listed activities or the persons who are associated with those members. The clubs alone are said to have been identified to the Minister by the NCA on 5 June 1995. However, in our view a reference will be valid which states that the general nature of the allegations is that unspecified persons may have engaged in or be engaging in one or more of a list of activities which are relevant offences. For example, the Minister might become aware of a vast increase in the amount of heroin being trafficked in Sydney. He could refer to the NCA for investigation the question whether the offence of heroin importation has been or is being committed, and if so by whom. This would be a matter relating to a relevant criminal activity. It would be a circumstance which implied that the illegal importation of heroin had occurred or was occurring. Having regard to the nature of the matter referred, it may not be possible for the Minister to do more in purported compliance with s 13(2)(a) than to say that the general nature of the circumstances is that unknown persons may have engaged or be engaging in the activity of illegally importing heroin into Australia. Since it is not necessary, in order for a reference to be valid, for it to identify offenders at all, one which purports to do this, but does so in a limited way, by referring to clubs which have been identified only to
the Minister, cannot thereby be rendered invalid. We refer to what we have said about the unconfined nature of an NCA investigation.
(d)Conduct and transactions not described
The primary judge said that the reference does not describe any conduct of any persons or any transactions the subject of the allegations. It is true that it does not mention the conduct of any named person or persons. It is also true that it does not mention particular transactions. But it is not silent as to conduct or transactions. It identifies ten or so activities in which it asserts unidentified persons may have engaged or be engaging. The complaint must therefore be that the specific conduct of specific persons is not detailed, and that precise transactions (presumably engaged in by specific persons) are not detailed. It follows from what has been said under par (c) that such information need not be included in a notice in order that it describe the general nature of the circumstances constituting the relevant criminal activity. In the heroin example we have given, there may be no particular conduct or precise transaction that is known. In the present case the notice is sufficient - it states that various persons may have engaged in or may be engaging in specified criminal activities.
Mannah's Case
Both sides relied on observations in Mannah v State Drug Crime Commission (1988) 13 NSWLR 43. Under s 25(1) of the State Drug Crime Commission Act 1985 (NSW) ("the NSW Act") it was a function of the State Drug Crime Management Committee to refer "relevant drug activities" to the State Drug Crime Commission for investigation. The expression "relevant drug activity" was defined as "any circumstances implying, or any allegations, that a relevant drug offence may have been, or may be being, or may be about to be, committed". The Committee gave the Commission a notice of reference which, so far as material, was as follows:
Pursuant to Section 25(1)(a) ... the State Drug Crime Management Committee hereby refers to the State Drug Crime Commission for investigation the following matter relating to a "relevant drug activity" (as defined in the Act).
MATTER
REFERENCE : CODE NAMED: ODIN
The nature and scope of the relevant drug activity, the identities of persons involved and the nature and scope of their involvement in the commission of a relevant drug offence (as defined in the Act).
At the Management Committee meeting on 11 March 1987, the identities of the persons the subject of the reference code named: ODIN were given to the members present.
The notice was held invalid. It did not describe the relevant drug activity. It merely referred to possible sources of information from which the activity could perhaps be identified. As Hope JA said at 49:
Thus the written notice which was the source of the power of the Commission to investigate a relevant drug activity did not by its own terms identify that activity by reference to the relevant allegations or circumstances or otherwise. At best it referred to sources from which the information could be obtained to identify that drug activity. In effect it did no more than to refer to the Commission drug activities which had been identified to the Committee.
McHugh JA said at 55:
To be valid ... the notice, whatever form it takes, must describe an allegation or circumstance or circumstances which implies or imply that a relevant drug offence, as defined, may have been or may be being or may be about to be committed.
When the Act is read as a whole, it is quite impossible to hold that the notice in the present case is valid. A person summoned to give evidence or produce a document to a hearing or to give information to the Commission, or the Supreme Court on review, could not ascertain what matter has been referred to the Commission under the ODIN notice. In truth, since the notice does not
specify an allegation or a circumstance or circumstances which implied or imply that a "relevant drug offence" may have been or may be being or may be about to be committed, no relevant drug activity has been referred to the Commission.
His Honour went on to say that it was not enough that the relevant drug activity could be discovered by recourse to sources outside the terms of the notice. Clarke JA agreed with the reasons of Hope and McHugh JJA.
Mannah was a very clear case. The first sentence of the notice did not itself purport to refer anything to the Commission. The second sentence did not describe any relevant drug activity. What it purported to do was to refer to the Commission the nature and scope of the undescribed activity, the identities of those involved in it, and the nature and scope of their involvement. The third sentence merely said that the identities of the persons involved were disclosed to those present at a meeting of the Committee (not the Commission). So the notice did not describe any allegation or circumstance which implied that a relevant drug offence may have been committed or was in the course of being committed or might be about to be committed.
Mannah is of little assistance in assessing the requirements of a s 13 notice. Section 25 of the NSW Act did not prescribe the contents of a notice of referral. It merely provided that one of the Committee's functions was to refer relevant drug activities to the Commission. By contrast, s 13(2) of the Act details the contents of a notice of reference, and in particular uses the phrase "general nature of the circumstances or allegations constituting the relevant criminal activity". The difference between the requirements of the two provisions was adverted to by Hope JA. His Honour referred to s 13 of the Act by way of contrast with s 25 of the NSW Act. He also discussed the decision of Northrop J in A v National Crime
Authority (unreported, 27 November 1987). In that case the part of the notice directed to s 13(2)(a) was as follows:
The general nature of the circumstances or allegations constituting the relevant criminal activity is activity by a group or groups of persons including inter alia persons identified to me by the Authority on the 11 March 1986 and associated persons and companies suggesting offences involving:
(i)the importation and distribution of narcotic substances;
(ii)bribery or corruption of officers of the Commonwealth or officers of the Territory;
(iii)widespread financial and business activities including activities associated with illegal gambling, tax evasion, and violence.
The validity of the reference was not in question before Northrop J, and his Honour did not consider it. In Mannah, after referring to A v National Crime Authority, Hope JA said at 48:
The notice [in that case] specified in some detail the general nature of the alleged criminal activity and the purposes of the investigation, but gave no information as to the particular offences involved, nor the names of any particular offenders. It stated that the alleged offenders included persons identified to the Minister by the Authority on 11 March 1986.
...
This written notice of reference was given by the Minister pursuant to the National Crime Authority Act 1984 (Cth), s 13. This section differs from s 25 of the Act inter alia in specifying, in subs (2), what shall be contained in the notice and what need not be contained in it. The question of the validity of the notice, had it been raised, would thus have turned primarily on whether it complied with subs (2). It is of course unnecessary to consider this question here, but, put at its lowest, arguably it did comply.
This is different to the position under s 25. ... Section 25 does not specify what shall or need not be contained in the written notice ....
We do not set out this passage for the sake of the sentence concluding "arguably it did comply", though counsel for the appellants relied on it. Rather, it is to show that a decision on the sufficiency of a notice under s 25 of the NSW Act is not necessarily applicable to a notice under s 13 of the Act.
But even if one does test the present notice against Mannah, it is, in our opinion, valid. It describes an allegation that various persons may have engaged in or may be engaging in one or more of ten specified activities, participating in which constitutes an offence or offences against Commonwealth laws. It thus satisfies Hope JA's requirement of a valid notice, namely that it "identify [a relevant offence] by reference to the relevant allegations" and McHugh JA's requirement that it describe "an allegation ... that a relevant ... offence, as defined, may have been ... committed". A person summoned to give evidence or to produce a document or give information, and a court on review, will know from the notice that what has been referred to the NCA is whether various persons have engaged in or are engaging in any of the specified activities, the engaging in which constitutes offences against Commonwealth laws.
Although the Mannah notice stated that the identitites of the persons the subject of the reference had been given to those present at the Committee's meeting, rather than itself naming the persons, neither Hope JA nor McHugh JA made it a condition of the validity of a notice that it identify the persons involved in the relevant activities. What they insisted upon was that the notice disclose the relevant drug activity referred. Had the Mannah notice stated that the allegation was that unnamed persons had engaged in specified activities the engaging in which constituted offences against New South Wales drug laws, it would in our view have satisfied their Honours' requirements notwithstanding that it did not identify the persons the subject of the allegation.
So while we consider that nothing that was said in Mannah governs this case, the notice in question here would in any event pass muster on the test applied in that case.
Ganin's Case
As a result of the decision in Mannah, the NSW Act was amended in 1988. The amendments included the addition of sub-ss (4) and (5) to s 25:
(4)The notice referring a matter relating to a relevant drug activity to the Commission for investigation:
(a)may describe the matter (wholly or partly) by reference to information given at a meeting of the Management Committee or other extrinsic material, whether or not the information or material is included in or annexed to the notice; and
(b)must describe the general nature of the circumstances or allegations constituting the relevant drug activity; and
(c)must set out the general purpose of the investigation.
(5)If information or other extrinsic material referred to in a notice is not included in or annexed to the notice, it does not form part of the notice for the purposes of section 16(2).
(Section 16(2) provides that a summons requiring a person to appear before the Commission must be accompanied by a copy of the notice by which the matter to which the hearing relates was referred to the Commission.) Although the verbiage is not identical, s 25(4)(b) and (c) of the NSW Act correspond with s 13(2)(a) and (c) of the Act.
Paragraphs 1 and 2 of the notice in Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423 were as follows:
1.The matters relating to the relevant criminal activity are referred to in written information given to the Committee at its meeting of 29 June, 1992 endorsed by the Chairman of the Committee and furnished to the Chairman of the Commission on that date. That information is not included in or annexed to this notice.
2.The allegations constituting the relevant criminal activity are that relevant offences, involving substantial planning and organisation and the use of sophisticated methods and techniques, have been and may be (in the course of) being, or may be about to be committed by persons referred to in the written information contained in paragraph 1 above, and by persons associated with them at Sydney and Newcastle and elsewhere in New South Wales including:
(a)diverse conspiracies to cheat and defraud certain persons to whom were submitted respective tenders for the construction of certain buildings and civil engineering projects;
(b)offences involving dishonesty under the Crimes Act (1900) of obtaining money, a valuable thing, or financial advantage by deception (s 178BA) and/or by false or misleading statements (s 178BB).
Paragraph 3 set out the general purpose of the investigation.
Amongst the grounds of attack on the notice was that the requirement in s 25(4)(b) was not satisfied because the notice did not "describe" the matters required by that paragraph to be described. The complaint was that the general nature of the allegations constituting the relevant criminal activity was not "described" if materials not forming part of or incorporated in the notice were ignored. The Court of Appeal rejected these arguments and upheld the notice. Kirby P (with whom Meagher JA and O'Keefe A-JA agreed) said:
In my opinion, for the purpose for which the notice is required, the matters "described" ... in par (2) ... sufficiently satisfy the requirements of s 25(4)(b) ... of the Act. The recitation is adequate and sufficiently particular to give fair specificity of the matters to be investigated. It is worth
recalling that s 25(4)(a) specifically permits the withholding of the detail of extrinsic material. This is referred to in particular (1).
The respondents relied on this passage. But it does not in our view assist them. The fact that s 25(4)(a) specifically permits the withholding of the details of extrinsic material does not establish that the mere fact that a s 13(2) notice refers to extrinsic material results in its invalidity. We accept that a s 13(2) notice which depends for its identification of the matter referred on an extraneous document or event will be invalid. But, as we have said, a notice which within its four corners describes the general nature of the allegations constituting the relevant criminal activity will not fall merely because it does not identify those who are said to have engaged in it.
Functions of notice of reference
In coming to his conclusion that the reference was inadequate, the primary judge was influenced by what he saw as the functions to be served by a reference. One of these was to enable the NCA to determine the extent of its power to investigate. This is undoubtedly one of the purposes of providing for a notice of reference to be given to the NCA. Cf Mannah at 53 per McHugh JA. But this fact does not lead to the conclusion that the reference was insufficient in the respects identified by his Honour. An NCA investigation starts with no specific issues or charges. It has only its terms of reference, which may be extremely wide. Its function is inquisitorial, not adversarial. It must pursue lines of inquiry, and in doing so may find that other lines of inquiry appear profitable. Cf Douglas v Pindling [1996] AC at 901. The NCA should not be regarded as outside its charter so long as it bona fide seeks to establish a relevant connection between certain facts and the subject matter of the reference, and that connection is one that is reasonably capable of being related to the purpose for which the power is conferred. Cf Ross v Costigan (1982) 41 ALR at 334, Melbourne Home
of Ford (1980) 47 FLR at 175 and Douglas v Pindling at 905. Because the NCA is an investigative body, it must necessarily embark on a fishing expedition. Cf McGuiness v Attorney-General (Vict) (1940) 63 CLR at 92 and Douglas v Pindling at 904. Given the nature of an NCA investigation, to say that it is a function of the notice of reference to enable the NCA to ascertain the extent or limits of its powers does not mean that a notice must possess the particularity insisted upon by the primary judge.
Another purpose his Honour considered was to be served by the notice of reference was to enable the NCA and persons subjected to the exercise of its coercive powers to determine the relevance of matters, documents and things to the special investigation. See, for example, ss 25(8) and 29(1). Again, this is an undoubted function of the notice. See AB v National Crime Authority (unreported, Full Court 3 July 1996) and cf Mannah at 54. But once the expansive notion of relevance in the context of an NCA investigation is appreciated, this purpose does not lead to the conclusion that the reference is inadequate because it fails to identify persons, conduct and time-frame.
The third purpose of the notice of reference was said by his Honour to be to enable a court to adjudicate upon issues of power and relevance. Because of the nature of the NCA's powers and the wide scope of the notion of relevance described above, a court's ability to intervene is necessarily limited. Once it is understood that intervention is restricted to cases in which the NCA is off on a frolic of its own or is engaging in conduct that no reasonable body, correctly directing itself in law, could properly engage in, the absence of information as to persons, conduct and time-frame will not impede a court from discharging its function, though its role will be more restricted than it would be if it were determining questions of relevance in ordinary adversary litigation or questions of power in contexts other than those involving wide-ranging inquiries and investigations such as those engaged in by the NCA.
Deficiencies - conclusion
The contention that to be valid a notice must identify the persons whose conduct is in question, describe that conduct, state when or between what dates the conduct occurred, and state in a detailed way (ie not broadly) the alleged criminal activities, cannot be correct. A notice which included all those matters would contain a specific, and not a general, description of the circumstances or allegations constituting the relevant criminal activity. Section 13(2)(a) shows that Parliament did not intend that a notice must contain that degree of specificity. Moreover, if the Minister were aware of all the facts insisted upon by the primary judge, there would be no need for an investigation by the NCA. The matter could be dealt with by the ordinary police forces. If, on the other hand, the Minister were not aware of those facts, an investigation, the very process by which the information might be obtained, could not occur.
Constitutional issue
The primary judge rejected the respondents' submission that s 5(1) of the Victorian Act is ineffective to refer a matter relating to a relevant criminal activity in so far as the relevant offence or offences are or include an offence or offences against Victorian law. The argument was that the Commonwealth Parliament has no power to enact a law relating to State offences. Section 4(1) of the Act, in defining "relevant criminal activity" and "relevant offence" to include offences against State law, is a law relating to State offences. Section 3(2) of the Victorian Act adopts those definitions. Section 5(1) of the Victorian Act empowers the State Minister to refer matters relating to a "relevant criminal activity" in so far as it relates to State offences. Section 4(1) of the Act is invalid to the extent that it relates to State offences. Sections 3(2) and 5(1) of the Victorian Act are ineffective to pick up the invalid definitions in s 4(1) of the Act. Accordingly, no valid reference can arise under s 5(1).
The definitions in the Act do not themselves have any operative effect in so far as they relate to State offences. Under s 13(1) the Commonwealth Minister may refer a matter to the Authority for investigation "in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory". When such a reference has been made, the special functions of the NCA are to investigate the matter "in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory". Under s 14(1) a State Minister may refer a matter to the NCA for investigation "in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of that State". The Act does not itself "activate" the definitions in so far as they relate to State offences. That is dependent on a reference by a State Minister under the Victorian Act. That reference is pursuant to a valid law of the State.
The Commonwealth Parliament has power to permit tribunals and courts to receive and exercise powers conferred by State Parliaments in the context of a co-operative scheme. See BP Australia Ltd v Amann Aviation Pty Ltd (1996) 137 ALR 447. The respondents accepted that the Commonwealth and States can engage in co-operative legislative schemes. But it was contended that the NCA scheme does not follow the model illustrated by the schemes the subject of the decisions in Reg v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 and Re Cram; Ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117. It was said that in those schemes each Parliament defined "industrial disputes" to the extent of its legislative power, and conferred on the relevant body the power to deal with those disputes. The sum of the definitions covered the field of industrial disputes. The vice of the NCA scheme, so it was said, lies in the fact that while there is a definition of "relevant offence" in the Act, there is no corresponding definition in the
Victorian Act. The latter purports to rely on the definition contained in the Act, but that definition is limited to Commonwealth offences.
It is plain that the definition of "relevant offence" is not limited to Commonwealth offences. The list in par (d) of the definition includes offences against State law - for example, bribery or corruption of, or by, an officer of a State. Further, the definition of "relevant criminal activity" picks up the definition of "relevant offence". The phrase "against a law of the Commonwealth, of a State or of a Territory" in the definition of "relevant offence" shows that "theft", "fraud", illegal drug dealings" and "illegal gambling" include offences against laws of a State.
However, even if it be accepted that the relevant definitions in the Act are invalid, the respondents' contention still fails. There is nothing to prevent a State Parliament adopting as part of its law an invalid definition in a Commonwealth Act. Suppose a Commonwealth law prohibiting trade between States. It defines "trade" as meaning "the movement of goods by truck", and defines "truck" so as to include any motor vehicle. A Victorian law dealing with the registration of trucks could adopt the definition of "truck" in the Commonwealth Act notwithstanding that that Act is totally invalid. The Constitutional argument thus fails.
IGC approval of Victorian reference
The other argument raised by the respondents in their notice of contention is that the primary judge had wrongly held that the IGC had approved the Victorian reference pursuant to s 14(1) of the Act. The contention was that s 14(1) contemplates a written reference which is subsequently approved by the IGC. The IGC's purported approval was on 25 May 1995, yet the reference did not come into existence until 5 June 1995.
The sequence of events contemplated by s 14(1) is that the State Minister prepares a reference, the IGC considers it, and if the IGC approves the reference, the Minister signs it and passes it to the NCA. There is no evidence that that did not happen. That is to say, there is nothing that shows that at its meeting on 25 May the IGC did not consider and approve a document in the form of the notice of reference subsequently signed and dated 5 June.
We would allow each appeal, set aside the orders of the primary judge, and in lieu thereof order that the amended application filed 4 June 1996 be dismissed with costs. The respondents should pay the appellants' costs of the appeals.
I certify that this and the preceding thirty two pages are a true copy of the reasons for judgment herein of their Honours von Doussa and Sundberg JJ
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Associate
16 June 1997
Counsel for the first, fifth and
sixth Appellants: M Gray QC and B Walters
Counsel for the second, third and
fourth Appellants: D M J Bennett QC and A G Southall
Solicitor for the Appellants: Australian Government Solicitor
Counsel for the Respondents: P Vickery QC and D Neal
Solicitors for the Respondent: Simon Parsons & Co
Date of Hearing: 9 September 1996
Place of Hearing: Sydney
Date of Judgment: 16 June 1997
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