Background
Background to the litigation
This is an application of the first defendant, the Australian Crime Commission, and of Mr Boulton for an order for the transfer of the proceeding issued in this Court to the Federal Court of Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).Background On 10 June 2009, the Board of the Australian Crime Commission consented to an investigation of a matter relating to activity that, under the Australian Crime Commission (South Australia) Act,[1] is relevant criminal activity. On the same date, the Board, in relation to that relevant criminal activity, acting under the South Australian Act, made a determination. The instrument recording the consent and determination was made at 2.18 pm on 10 June 2009. The instrument is described as “Australian Crime Commission — State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009”. The instrument, inter alia, provides:[1] Where convenient referred to as the South Australian Act.2 CommencementThis instrument commences immediately after it is made.…4 AuthorisationPursuant to the duties, functions and powers conferred on the Board by the South Australian Act, the ACC is authorised to investigate matters relating to the relevant criminal activity until 30 June 2010.Note Under paragraph 5(c) of the South Australian Act, the ACC has the further function of providing reports to the Board on the outcomes of the investigation.5 DeterminationPursuant to paragraph 8(1)(a) and subsection 8(3) of the South Australian Act, the Board:(a) has considered whether ordinary police methods of investigation into matters relating to the relevant criminal activity are likely to be effective; and(b) determines that the ACC State investigation authorised by this instrument is a special investigation.6 Consent(a) For the avoidance of doubt, the consent of the Board under subsection 55A(3) of the Commonwealth Act shall continue during the currency of the State special investigation.(b) Pursuant to subsection 55A(5A) of the Commonwealth Act, the Board consents to the performance of a duty or function, and the exercise of a power, of a kind described in subsection 55A(5) of the Commonwealth Act:(i) presently conferred; or(ii) from time to time conferred;on the CEO or examiners of the ACC by a law of the State of South Australia, including the South Australian Act, in relation to the State special investigation, and this consent shall continue through the currency of the State special investigation.7 Classes of persons to participate in investigationPursuant to paragraph 8(1)(b) of the South Australian Act, the classes of persons to participate in the State special investigation are those mentioned in Schedule 2.8 Relevant Criminal Activity to which this instrument appliesThe relevant criminal activity to which this instrument applies include offences against a law of the State of South Australia.9 Purpose of the investigation The purpose of the State special investigation is to:(a) collect and analyse criminal information and intelligence related to the relevant criminal activity, to disseminate that information and intelligence in accordance with the South Australian Act and to report to the Board; and(b) to identify persons involved in the relevant criminal activities, to collect evidence about those activities, to facilitate the apprehension of such persons, and to reduce the incidence and effect of such offences on the community; and(c) to make appropriate recommendations to the Board about reform of:i) the law relating to relevant offences; andii) relevant administrative practices; andiii) the administration of the courts in relation to trials of relevant offencesThe instrument in its entirety is attached as Schedule A to these reasons.
Decision
Reasons for decision
GRAY J
I am satisfied that there are special reasons for the proceeding to be determined by this Court. However, as noted above, in light of my earlier conclusions, there is no need to rely on section 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act as the source of jurisdiction. Conclusion The application to transfer the within proceeding to the Federal Court of Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act is dismissed. Schedule AAustralian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009The Board of the Australian Crime Commission:(a)acting under subsection 55A(3) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) – has consented to an investigation of a matter relating to activity that, under the Australian Crime Commission (South Australia) Act 2004 of South Australia (the South Australian Act), is relevant criminal activity; and(b)in relation to that relevant criminal activity, acting under the South Australian Act, by virtue of subsection 55A (4) of the Commonwealth Act – has made this Determination;and has made this instrument by resolution at [2.18pm] on [10 June] 2009.[signed] Chair of the Board of the Australian Crime Commission[10 June] 2009Name: …1 Name of instrumentThis instrument is the Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009.2 CommencementThis instrument commences immediately after it is made.3 DefinitionsIn this instrument:ACC means the Australian Crime Commission.Commonwealth Act means the Australian Crime Commission Act 2002 of the Commonwealth, as amended.high risk crime groups (HRCGs) includes a group or groups of two or more persons who are engaged in one or more of the activities described in Schedule 1 clause 3 (being offences against the laws of South Australia) and who:(a)have a thorough understanding of law enforcement methodology and its limitations and employ counter-strategies; or(b) have access to law enforcement or regulatory information; or(c) demonstrate the willingness and capacity to corrupt officials; or(d)demonstrate the willingness and capacity to pervert the course of justice through the intimidation of witnesses and officials and the use of violence; or(e)who are engaged in significant ongoing serious and organised crime activity in one or more jurisdictions;jurisdiction means the Commonwealth of Australia, a State of Australia (including the Northern Territory and Australian Capital Territory), or an overseas country;South Australian Act means the Australian Crime Commission (South Australia) Act 2004, as amended.relevant criminal activity means the relevant criminal activity, within the meaning of the South Australian Act, mentioned in Schedule 1.4 AuthorisationPursuant to the duties, functions and powers conferred on the Board by the South Australian Act, the ACC is authorised to investigate matters relating to the relevant criminal activity until 30 June 2010.Note Under paragraph 5(c) of the South Australian Act, the ACC has the further function of providing reports to the Board on the outcomes of the investigation.5 DeterminationPursuant to paragraph 8(1)(a) and subsection 8(3) of the South Australian Act, the Board:(a)has considered whether ordinary police methods of investigation into matters relating to the relevant criminal activity are likely to be effective; and(b)determines that the ACC State investigation authorised by this instrument is a special investigation.6 Consent(a)For the avoidance of doubt, the consent of the Board under subsection 55A(3) of the Commonwealth Act shall continue during the currency of the State special investigation.(b)Pursuant to subsection 55A(5A) of the Commonwealth Act, the Board consents to the performance of a duty or function, and the exercise of a power, of a kind described in subsection 55A(5) of the Commonwealth Act:(i) presently conferred; or(ii) from time to time conferred;on the CEO or examiners of the ACC by a law of the State of South Australia, including the South Australian Act, in relation to the State special investigation, and this consent shall continue through the currency of the State special investigation.7 Classes of persons to participate in investigationPursuant to paragraph 8(1)(b) of the South Australian Act, the classes of persons to participate in the State special investigation are those mentioned in Schedule 2.8 Relevant Criminal Activity to which this instrument appliesThe relevant criminal activity to which this instrument applies include offences against a law of the State of South Australia.9 Purpose of the investigation The purpose of the State special investigation is to:(a)collect and analyse criminal information and intelligence related to the relevant criminal activity, to disseminate that information and intelligence in accordance with the South Australian Act and to report to the Board; and(b)to identify persons involved in the relevant criminal activities, to collect evidence about those activities, to facilitate the apprehension of such persons, and to reduce the incidence and effect of such offences on the community; and(c) to make appropriate recommendations to the Board about reform of:i) the law relating to relevant offences; andii) relevant administrative practices; andiii) the administration of the courts in relation to trials of relevant offencesSchedule 1 Authorised investigation1 InvestigationAn investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, relevant criminal activity;(a) was committed before the commencement of this instrument; or(b)was in the process of being committed on the commencement of this instrument; or(c) may in future be committed.2 CircumstancesThe general nature of the circumstances constituting relevant criminal activity that may have been, may be, or may in future be, occurring are those implied from information available to Australian law enforcement agencies indicating that:-(a)High Risk Crime Groups are involved in a range of serious and organised crime activity in and impacting on South Australia, including: illegal drug dealings; fraud; corruption and bribery of officials; perverting the course of justice; murder, kidnapping and other offences involving violence; extortion and blackmail; obtaining financial benefit by vice engaged in by others; theft; firearms offences; and money laundering;(b)they tend to be sophisticated, resilient, flexible, use key facilitators and operate across multi-jurisdictional illicit commodity markets;(c)they may generate profits through their commission of serious frauds and deceptions as a means of enabling their primary criminal activities; and (d)effective targeting of these groups requires a multi-agency intelligence-driven approach at a national level with access to coercive powers.3 AllegationsThe general nature of the allegations constituting relevant criminal activity that may have been, may be, or may in future be, committed is that certain persons, in concert with one another or with other persons, may be engaged in 1 or more of the following activities:(a) murder;(b) kidnapping;(c) blackmail, extortion, and unlawful threats;(d) other offences involving violence;(e) obtaining financial benefit by vice engaged in by others;(f) illegal drug dealings;(g) firearm offences;(h) bribery or corruption of public officers or abuse of public office;(i) theft;(j) deception and dishonest dealing with documents;(k) money laundering;(l)offences relating to judicial proceedings contrary to Part 7, Division 3 of the Criminal Law Consolidation Act 1935 (SA);(m)such other incidental offences that the head of the special investigation authorised by this instrument suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of any of the offences mentioned in paragraphs (a) to (l).Schedule 2 Classes of persons1 The CEO.2 Each person who is:(a) a member of the staff of the ACC; and(b)identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to operations and investigations under the Commonwealth Act.3 Each person who is:(a) an officer or member of the staff of any of the following agencies:(i) an agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member;(ii) the Australian Taxation Office;(iii) AUSTRAC;(iv) the Department of Immigration and Citizenship;(v) the New South Wales Crime Commission;(vi) the Queensland Crime and Misconduct Commission;(vii) the Australian Defence Force;(viii) the Department of Defence;(ix) the South Australian Department of Fisheries and Wildlife; and(b)identified in writing by the head of that agency, or a delegate of the head, as a person whose duties include providing services in relation to operations and investigations under the Commonwealth Act.Schedule BAustralian Crime Commission - State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No. 1 of 2010The Board of the Australian Crime Commission:(a)acting under subsection 55A (3) of the Australian Crime Commission Act 2002 (the ACC Act) – has consented to an investigation of a matter relating to activity that, under the Australian Crime Commission (South Australia) Act 2004 of South Australia (the South Australian Act), is relevant criminal activity; and(b)in relation to that relevant criminal activity, acting under the South Australian Act, by virtue of subsection 55A (4) of the ACC Act – has made this Determination;and has made this instrument by resolution on [9 June] 2010.[signed]Chair of the Board of the Australian Crime CommissionName: … [9 June] 20101 Name of InstrumentThis instrument is the Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No. 1 of 2010.2 CommencementThis instrument commences immediately after it is made.3Amendment of Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009The Australian Crime Commission State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009 made by the ACC Board on 10 June 2009, is amended as follows:-Paragraph 4 is amended by deleting 30 June 2010 and inserting 30 June 2011.Schedule CAustralian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No 1 of 2011The Board of the Australian Crime Commission:(a)acting under subsection 55A (3) of the Australian Crime Commission Act 2002 (the ACC Act) – has consented to an investigation of a matter relating to activity that, under the Australian Crime Commission (South Australia) Act 2004 of South Australia (the South Australian Act), is relevant criminal activity; and(b)in relation to that relevant criminal activity, acting under the South Australian Act, by virtue of subsection 55A (4) of the ACC Act – has made this Determination;and has made this instrument by resolution on [15 June] 2011.Chair of the Board of the Australian Crime CommissionName: … [signed] [15 June] 20111 Name of InstrumentThis instrument is the Australian High Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) Amendment No. 1 of 2011.2 CommencementThis instrument commences immediately after it is made.3Amendment of Australian Crime Commission – State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009The Australian Crime Commission State Special Investigation Consent and Determination (High Risk Crime Groups – South Australia) 2009 made by the ACC Board on 10 June 2009, is further amended as follows:-Paragraph 4 is amended by deleting “30 June 2011” and inserting “30 June 2014”.Schedule 1, clause 1 is amended by deleting “clauses 3 and 4” and inserting “clause 3”.Schedule DSummons No: S0142/12SUMMONS TO APPEAR BEFORE AN EXAMINEROF THE AUSTRALIAN CRIME COMMISSIONIssued under section 19 of the Australian Crime Commission (South Australia) Act 2004 (SA)To: …Pursant to subsection 19(1) of the Australian Crime Commission (South Australia) Act 2004 (SA) (the Act), for the purposes of a special ACC investigation being conducted by the Australian Crime Commission:1. being satisfied that it is reasonable in all the circumstances to do so;2.having recorded in writing the reasons for being so satisfied at 1:05pm on 30 May 2012;3. I summon you:(a) to appear at 9:30am on Friday 15 June 2012 before an Examiner at an examination at the Australian Crime Commission, Floor 11, East, Commonwealth Centre, 55 Currie Street, ADELAIDE and from day to day unless excused or released from further attendance;(b) to give evidence of or about the following relevant criminal activity by a high risk crime group;i. money launderingii. illegal drug dealings, andiii.such other incidental offences that the head of the special investigation authorised by this instrument suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of any of the offences mentioned above.Notation:Pursuant to subsection 21(1) of the Act, a notation is included in this Summons. Pursuant to section 22 of the Act, disclosure of information about this Summons or any official matter connected with it, including information in the Annexures, is prohibited, except:1.to the Federal Court of Australia and the Attorneys-General of the Commonwealth and the States for the purposes of any application challenging the validity of the Summons, in which case an application is to be made to the Court for the applicant’s name to be suppressed and replaced by a letter and/or number pseudonym; and2. where section 22 of the Act does not prevent such disclosure.[signed]W.M. BoultonExaminerIssued at 1:08pm on 30 May 2012.Annexures:Pursuant to subsection 19(3) of the Act, a copy of the ACC Board’s determination that the investigation is a special investigation is attached as Annexure A.Pursuant to subsection 21(3) of the Act, a statement setting out the rights and obligations conferred or imposed on a person served with, or otherwise given, this Summons by section 22 of the Act is attached as Annexure B.A set of Explanatory Notes is attached as Annexure C.ANNEXURE BSTATEMENT OF RIGHTS AND OBLIGATIONSPURSUANT TO SECTION 21(3) OF THEAUSTRALIAN CRIME COMMISSION (SOUTH AUSTRALIA) ACT 2004 (SA)(1)Pursuant to subsections 21(1) and (2) of the Australian Crime Commission (South Australia) Act 2004 (SA) (the Act), a notation is included in the Summons to which this statement is annexed.(2)Pursuant to section 22 of the Act, the notation prohibits disclosure of information about the Summons. To comply with the notation, you must not disclose:(a) the existence of the Summons or any information about it; or(b)the existence of, or any information about, any official matter connected with the Summons; or(c)information from which a person could reasonably be expected to infer the existence of the Summons or of any official matter connected with it.If you breach this requirement, you are liable to a maximum penalty of $2,200 or imprisonment for one year.(3)An official matter means any of the following (whether past, present or contingent):(a) the determination at Annexure A to the Summons;(b) an ACC investigation/operation;(c) an examination held by an examiner;(d) court proceedings.(4)Subsection 22(2) of the Act specifies certain exceptions to the prohibition on disclosure. As permitted by Subsection 22(2) of the Act, you may make a disclosure, in general terms:-(a)in accordance with the circumstances, if any, specified in the notation on the Summons; or(b)to a legal practitioner for the purposes of obtaining legal advice or representation relating to the Summons or matter; or(c)if you are a body corporate – to an officer or agent of the body corporate for the purpose of ensuring compliance with the Summons; or(d)if you are a legal practitioner – for the purpose of obtaining the agreement of another person under subsection 23(3) of the Act to you answering a question or producing a document at an examination before an examiner.(5)If disclosure is made to a person in the circumstances permitted by subsections 22(2), 22(3) of the Act sets out the rights or obligations of that person. A person to whom disclosure is made must not disclose the existence of, or any information about, the Summons or any official matter connected with it, except in the situations provided for in subsection 22(4). Subsection 22(4) provides the following exceptions, in general terms:(a)if the person is an officer or agent of a body corporate served with, or otherwise given, the Summons, to:(i) another officer or agent of the body corporate for the purpose of ensuring compliance with the Summons; or(ii) a legal practitioner for the purposes of obtaining legal advice or representation in relation to the Summons or matter;(b)if the person is a legal practitioner – for the purpose of giving legal advice or making representations, relating to the Summons or matter;If disclosure was made to the person in a particular capacity (e.g. as an officer or agent of a body corporate or a legal practitioner as outlined in paragraph (4) above) and the person no longer holds that capacity, the person must not, in any circumstances, make a record of, or disclose the existence of, the Summons or any official matter connected with it, or disclose any information about any of them.(6)The disclosure restrictions cease to apply after the notation in the summons is cancelled by subsection 21(4) of the Act (in which case you will be be [sic] notified by the ACC) or five years elapse after the issue of the Summons, whichever is sooner.(7)If you have any concerns regarding your welfare following the receipt of this Summons, please communicate with the Contact Officer whose name and telephone number appear on the Summons.ANNEXURE CEXPLANATORY NOTES(1) You have been served with:(a)a Summons to appear before an Examiner [if required: and to produce documents OR things OR documents and things];(b)a copy of the relevant Determination of the Board of the Australian Crime Commission (Annexure A);(c) a Statement of Rights and Obligations (Annexure B).(d) these Explanatory notes (Annexure C).(2)You must not show anyone or tell anyone about this Summons and the material served on you, except as specified in paragraph 4 of the Statement of Rights and Obligations.(3)You may consult a lawyer about the Summons you have received, and you may also be represented by a lawyer at the examination. If you intend to be represented at the examination by a lawyer, you, or your lawyer, should communicate with the Contact Officer whose details appear on the Summons. This should be done as soon as possible after you have received the Summons because the Examiner may have reason to refuse to allow the particular lawyer you have chosen to represent you at the examination. Please show these Notes to your lawyer.(4)The examination will be held in private and only persons authorised by the Examiner may be present.(5)Subsections 23 (1) and (2) of the Australian Crime Commission (South Australia) Act 2004 (SA) (the Act) impose obligations on you, as a person served with a Summons and as a witness at an examination, including:(a)you must attend the examination at the time, on the date and at the place specified in the Summons. If you fail to attend, an examiner may make an application to a Court for a warrant to be issued for your arrest (section 24 of the Act);(b)you must take an oath or make an affirmation when required to do so by the Examiner;(c)you must produce any document or thing required to be produced by the Summons; and(d)you must answer the questions that you are required to answer by the Examiner.(6)If you are a legal practitioner, subsection 23(3) provides specifically for communications made by or to you in your capacity as a legal practitioner.(7)Pursuant to 25(1) you must not give evidence at the examination before the Examiner that is to your knowledge false or misleading in a material particular.(8)A person who contravenes any of subsections 23(1), 23(2), 23(3) or 25(1) is guilty of an indictable offence punishable upon conviction by a fine not exceeding $22,000 or imprisonment for a period not exceeding five years.(9)As detailed above, you must answer all questions in the examination you are required to answer by the Examiner and produce the documents and things, if any, required by the Summons. However, you are entitled to claim privilege against self-incrimination in relation to the answers you are required to give and the documents or things you are required to produce (paragraph 23(4)(c)). At the start of your examination, the Examiner will draw this entitlement to your attention, explain the effect of claiming the privilege and invite you to claim the privilege against self-incrimination.(10)If you have any queries about the Summons or these Explanatory Notes, please communicate with the Contact Officer whose details appear on the Summons.
