FEDERAL COURT OF AUSTRALIA
S v Australian Crime Commission [2006] FCAFC 5
ADMINISTRATIVE LAW - whether summons issued complied with essential statutory requirement
CONSTITUTIONAL LAW – validity of Australian Crime Commission Act 2002 (Cth) – validity of s 4A of the Act – where Act gives ACC power to investigate state offences with a federal aspect – whether definition of ‘federal aspect’ in s 4A ensures Act is supported by a federal head of power
Acts Interpretation Act 1901 (Cth), s15A
Australian Crime Commission Act 2002 (Cth), ss4, 4A, 7, 7A, 7B, 7C, 24A, 28, 29, 46B
Corporations Act (1989) (Cth) ss 46 and 47
Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth), r 3
Federal Court of Australia Act 1976 (Cth), s20
National Crime Authority Act 1984 (Cth)
National Crime Authority Amendment Act 2000 (Cth)
Proceeds of Crime Act 2002 (Cth)
Duties Act 2000 (Vic), s69BEx parte Walsh & Johnson: In Re Yates (1925) 37 CLR 36
Lockwood v The Commonwealth (1954) 90 CLR 177
R v Duncan; Ex parte Australian Iron & Steel Pty Ltd (1983) 158 CLR 535
R v Hughes (2000) 202 CLR 535
Re Cram; Ex parte NSW Colliery Proprietors Association (1987) 163 CLR 117S v AUSTRALIAN CRIME COMMISSION
SAD250 OF 2005B v AUSTRALIAN CRIME COMMISSION
SAD252 OF 2005S2 v AUSTRALIAN CRIME COMMISSION
VID1294 OF 2005B2 v AUSTRALIAN CRIME COMMISSION
VID1286 of 2005C, R, D, A & M v AUSTRALIAN CRIME COMMISSION
NSD1358 OF 2005RYAN, EMMETT & GYLES JJ
15 FEBRUARY 2006
MELBOURNE heard in ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD250 OF 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
S
APPELLANTAND:
AUSTRALIAN CRIME COMMISSION
RESPONDENT
JUDGES:
RYAN, EMMETT & GYLES JJ
DATE OF ORDER:
15 FEBRUARY 2006
WHERE MADE:
MELBOURNE (heard in ADELAIDE)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s 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
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 252 OF 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
B
APPELLANTAND:
AUSTRALIAN CRIME COMMISSION
RESPONDENT
JUDGES:
RYAN, EMMETT & GYLES JJ
DATE OF ORDER:
15 FEBRUARY 2006
WHERE MADE:
MELBOURNE (heard in ADELAIDE)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s 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
VICTORIA DISTRICT REGISTRY
VID1294 OF 2005
REFERRED TO THE FULL FEDERAL COURT AT FIRST INSTANCE
BETWEEN:
S2
APPLICANTAND:
AUSTRALIAN CRIME COMMISSION
RESPONDENT
JUDGES:
RYAN, EMMETT & GYLES JJ
DATE OF ORDER:
15 FEBRUARY 2006
WHERE MADE:
(heard in ADELAIDE)
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order…
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Details
- Case
- [2006] FCAFC 5
- Decision Date
CaseChat Overview and Summary
This case involves the appellants S and B, who are contesting the validity of the summonses issued by the Australian Crime Commission (ACC) under the Criminal Code Act 1995. The ACC sought to investigate various criminal activities, including money laundering and other serious offences, which have a federal aspect under Australian law. The appellants argued that the provisions of the Act, which allow the ACC to investigate such activities, are invalid as they exceed the Commonwealth's legislative powers. The primary judge, however, upheld the validity of the summonses, leading to this appeal.
The central legal issue before the court was whether the provisions of the Criminal Code Act 1995, specifically the sections that empower the ACC to investigate activities with a federal aspect, were within the Commonwealth's legislative powers. The appellants contended that the offences investigated by the ACC were purely state offences and, therefore, outside the Commonwealth's jurisdiction. The court had to determine whether the offences in question, which included money laundering and other serious crimes, had a federal aspect that would permit the Commonwealth to legislate on them.
The court dismissed the appeal, affirming that the provisions of the Act were valid. The reasoning was that the term "potentially" in the Act referred to offences that could be the subject of a Commonwealth law if the Commonwealth chose to enact one, not that the offences themselves were artificial or hypothetical. The court held that there were indeed real offences against state laws being investigated, which had a federal aspect as they could be federally regulated. The appellants' argument that the offences were purely state matters was rejected, as the court found no fiction in section 4A of the Act. Consequently, the summonses issued by the ACC were deemed valid, and the appeals were dismissed with costs.
In conclusion, the court ordered the dismissal of the appeals brought by S and B against the validity of the ACC summonses. Additionally, the appellants were ordered to pay the respondent's costs for the appeals. This decision reinforces the authority of the Commonwealth to investigate and address criminal activities that have a federal aspect, even if those activities are initially offences against state laws.
The central legal issue before the court was whether the provisions of the Criminal Code Act 1995, specifically the sections that empower the ACC to investigate activities with a federal aspect, were within the Commonwealth's legislative powers. The appellants contended that the offences investigated by the ACC were purely state offences and, therefore, outside the Commonwealth's jurisdiction. The court had to determine whether the offences in question, which included money laundering and other serious crimes, had a federal aspect that would permit the Commonwealth to legislate on them.
The court dismissed the appeal, affirming that the provisions of the Act were valid. The reasoning was that the term "potentially" in the Act referred to offences that could be the subject of a Commonwealth law if the Commonwealth chose to enact one, not that the offences themselves were artificial or hypothetical. The court held that there were indeed real offences against state laws being investigated, which had a federal aspect as they could be federally regulated. The appellants' argument that the offences were purely state matters was rejected, as the court found no fiction in section 4A of the Act. Consequently, the summonses issued by the ACC were deemed valid, and the appeals were dismissed with costs.
In conclusion, the court ordered the dismissal of the appeals brought by S and B against the validity of the ACC summonses. Additionally, the appellants were ordered to pay the respondent's costs for the appeals. This decision reinforces the authority of the Commonwealth to investigate and address criminal activities that have a federal aspect, even if those activities are initially offences against state laws.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
1. The application be dismissed.
2. The applicants pay the respondent’s costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The use of the word ‘potentially’ means simply that the State offences have a federal aspect because they could be the subject of a valid Commonwealth enactment, if the Commonwealth decided to pass such a law. There is no attempt to specify an offence that is either artificial or hypothetical. There are real offences to be investigated, albeit offences against State laws. It is not disputed by the Summons Recipients that the offences, the investigation of which is authorised by the Determinations, are real offences against State laws. There is no fiction involved in s 4A. CONCLUSION The provisions of the Act impugned by the Summons Recipients are not invalid. The Summonses are valid. That is the conclusion arrived at by the primary judge in the appeals by S and B. It follows that both appeals should be dismissed with costs. It also follows that the three proceedings in the original jurisdiction of the Court that are before the Full Court should also be dismissed with costs. SCHEDULE 1Schedule 1 to the Money Laundering Determination was relevantly in the following terms:‘1. InvestigationAn investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, federally relevant criminal activity:(a) was committed before the commencement of this instrument;(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 federally relevant criminal activity that may have been, may be being, or may in future be, committed arise from certain activities disclosed by the following transactions and events which cannot be readily explained by possibilities other than federally relevant criminal activity:(a)suspect transaction reports made by cash dealers under the Financial Transaction Reports Act 1988;(b)a suspicious pattern of significant financial transaction reports under the Financial Transaction Reports Act 1988 involving large sums of money:(i)entering or leaving the banking system in Australia; or(ii)paid to or withdrawn from gambling houses, casinos, bookmakers or other persons or entities carrying on business in the gambling industry; or(iii)which are the proposed or actual subject of international fund transfers; or(iv)which give rise to cash substitutes, being gold, precious metals or minerals, bearer bonds, travellers’ cheques or demand drafts; or(v)in the form of cash transported into or out of Australia;(c)reports of international funds transfer instructions made by cash dealers under the Financial Transaction Reports Act 1988 linked to persons or entities suspected of involvement in relevant criminal activity;…It is the experience of Australian law enforcement agencies that circumstances of the nature of those referred to above imply the commission of federally relevant criminal activity.3 AllegationsThe general nature of the allegations that federally relevant criminal activity may have been, may be being, or may in future be, committed, is that from 1 January 1995 certain persons I concert with one another or with other persons, may be engaged in one or more of the following activities:(a)money laundering within the meaning of the Proceeds of Crime Act 1987;(b)dealing with money or other property contrary to sections 400.3, 400.4, 400.5, 400.6(1), 400.6(2) or 400.7(1) of the Criminal Code;(c)unlawful activities relating to financial transactions which involve the commission of the following offences (all of which constitute a serious offence within the meaning of the Proceeds of Crime Act 2002):(i)an offence against section 15 (reports about transfers of currency into or out of Australia) of the Financial Transaction Reports Act 1988 involving a transaction of at least $50,000 in value; or(ii)an offence against section 29 (false or misleading information) of the Financial Transaction Reports Act 1988 involving a transaction of at least $50,000 in value; or(iii)an offence against section 24 (opening or operating accounts in a false name etc.) of the Financial Transaction Reports Act 1988 where transactions on the relevant account total at least $50,000 in value during any 6 month period; or(iv)an offence against section 31 (conducting transactions to avoid reporting requirements) of the Financial Transaction Reports Act 1988 where transactions in breach of that section by the person committing that offence total at least $50,000 in value during any 6 month period;(d)defrauding the Commonwealth within the meaning of section 29D or section 86 of the Crimes Act 1914 through evasion of, or making false claims in relation to, tax, customers duty or excise duty;(e)obtaining property by deception within the meaning of section 14.1 of the Criminal Code through evasio of, or making false claims in relation to, tax, customs duty or excise duty;(f)obtaining financial advantage by deception within the meaning of section 134.2 of the Criminal Code through evasion of, or making false claims in relation to, tax, customs duty or excise duty(g)general dishonesty within the meaning of section 135.1 of the Criminal Code through evasion of, or making false clams in relation to, tax, customs duty or excise duty;(h)conspiracy to defraud within the meaning of section 135.4 of the Criminal Code through evasion of, or making false claims in relation to, tax, customs duty or excise duty;(i)any of the following activities being offences that may have been, or may be, connected, directly or indirectly, with a course of activity involving the commission of any of the offences referred to in paragraphs (a) to (h):(i)the unlawful importation, possession or conveyance of, or dealing, illegal drugs within the meaning of the Crimes Act 1914 or the Customs Act 1901;(ii)corruption or improper interference with the due administration of justice within the manning of section 33 of the Crimes Act 1914;(iii)intimidation of or interference with a witness or proposed witness in a judicial proceeding within the meaning of section 36A of the Crimes Act 1914;(iv)bribery of a Commonwealth public official, within the meaning of section 141.1 of the Criminal Code;(v)giving a corrupting benefit to a Commonwealth public official, or receiving a corrupting benefit by a Commonwealth public official, within the meaning of section 142.1 of the Criminal Code;(vi)abuse of public office by a Commonwealth public official within the meaning of section 142.2 of the Criminal Code;(vii)perverting the course of justice;(viii)market misconduct and other prohibited conduct relating to financial products and financial services contrary to Part 7.10 of the Corporations Act 2001;(ix)conduct in relation to securities contrary to Part 7.11 of the Corporations Law;(x)forging of passports;(xi)organising bringing groups of non-citizens into Australia contrary to section 232A of the Migration Act 1958;(xii)bringing non-citizens into Australia in contravention of the Migration Act 1958 or harbouring illegal entrants contrary to subsection 233(1) of the Migration Act 1958;(xiii)such other incidental offences the head of this ACC special investigation 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 referred to in paragraphs (a) to (h);(j)other unlawful activities that are related to or connected with these activities and that involve relevant offences against a law of a State that have a federal aspect.4.Connected allegationA connected allegation is that the activities mentioned in paragraphs 3(a) to (h) and (i) involve the commission of serious and organised crime.’SCHEDULE 2Schedule 1 to the High Risk Crime Groups Determination was relevantly in the following terms:1InvestigationAn investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, federally 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.2CircumstancesThe general nature of the circumstances constituting federally relevant criminal activity that may have been, may be being, or may in future be, occurring are those implied from information available to Australian law enforcement agencies indicating that high risk crime groups are involved in the following activities within Australia: the trafficking in or supply of illegal drugs; fraud; corruption and bribery of officials; perverting the course of justice; violence related offences; securities market misconduct; theft (including theft of motor vehicles and vehicle parts); vehicle rebirthing; and identity crime. `Effective targeting of these networks requires a multi-agency intelligence-driven approach at a national level with access to coercive powers.3 AllegationsThe general nature of the allegations constituting federally relevant criminal activity that may have been, may be being, or may in future be, committed is that from 1 January 1990 certain persons, in concert with one another or with other persons, may be engaged in 1 or more of the following activities:(a) the unlawful importation of illegal drugs into Australia;(b)the unlawful importation of tier 1 goods (drug precursor chemicals) in contravention of section 233BAA of the Customs Act 1901;(c)the unlawful possession or conveyance of illegally imported illegal drugs or prohibited drugs;(d)possession of material used for dealing in illegal drugs which have been, or are reasonably suspected of having been, imported into Australia;(e)dealing in illegal drugs on board Australian aircraft or Australian ships;(f)dealing in illegal drugs overseas with a view to the commission of offences in Australia;(g)corruption or improper interference with the due administration of justice within the meaning of section 33 of the Crimes Act 1914;(h)intimidation of or interference with a witness or proposed witness in a judicial proceeding within the meaning of section 36A of the Crimes Act 1914;(i)bribery of a Commonwealth public official, within the meaning of section 141.1 of the Criminal Code;(j)giving a corrupting benefit to a Commonwealth public official, or receiving a corrupting benefit by a Commonwealth public official, within the meaning of section 142.1 of the Criminal Code;(k)abuse of public office by a Commonwealth public official within the meaning of section 142.2 of the Criminal Code;(j)perverting the course of justice;(m)violence-related offences;(n)market misconduct and other prohibited conduct relating to financial products and financial services contrary to Part 7.10 of the Corporations Act 2001;(o)conduct in relation to securities contrary to Part 7.11 of the Corporations Law;(p)defrauding the Commonwealth, within the meaning of section 29D or section 86 of the Crimes Act 1914 through tax evasion;(q)obtaining property by deception within the meaning of section 134.1 of the Criminal Code through tax evasion;(r)obtaining financial advantage by deception within the meaning of section 134.2 of the Criminal Code through tax evasion;(s)general dishonesty, within the meaning of section 135.1 of the Criminal Code through tax evasion;(t)conspiracy to defraud, within the meaning of section 1 35.4 of the Criminal Code through tax evasion;(u)money laundering, within the meaning of section 81 of the Proceeds of Crime Act 1987;(v)dealing with money or property contrary to sections 400.3, 400.4, 400.5, 400.6(1), 400.6(2) or 400.7(1) of the Criminal Code;(w)theft;(x)unlawful possession, receiving, or sale of stolen property, including motor vehicles or motor vehicle parts;(y)vehicle rebirthing;(z)unlawful possession, receiving, or sale of stolen property, being identity related information or any document or thing containing such information;(aa)any of the following activities being offences that may have been, or may be, connected, directly or indirectly, with a course of activity involving the commission of any of the offences referred to in paragraphs (a) to (z);(i)forging of passports;(ii)organising bringing groups of non-citizens into Australia contrary to section 232A of the Migration Act 1958;(iii)bringing non-citizens into Australia in contravention of the Migration Act 1958 or harbouring illegal entrants contrary to subsection 233(1) of the Migration Act 1958;(iv)commission of the following unlawful activities in relation to financial transaction reporting requirements:(A)opening and/or operating bank accounts in false names contrary to section 24 of the Financial Transaction Reports Act 1988 where transactions on the relevant account total at least $50,000 in value during any 6 month period;(B)non reporting of transfers of currency into or out of Australia contrary to section 15 of the Financial Transaction Reports Act 1988 involving a transaction of at least $50,000 in value;(C)providing false or misleading information, contrary to section 29 of the Financial Transaction Reports Act 1988 involving a transaction of at least $50,000 in value;(D)conducting transactions to avoid reporting requirements of the Financial Transaction Reports Act 1988 contrary to section 31 of the said Act where transactions in breach of that section by the person committing that offence total at least $50,000 in value during any 6 month period;(v)such other incidental offences the head of this ACC special investigation 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 referred to in paragraphs (a) to (z); and(ab)other unlawful activities that are related to or connected with those activities and that involve relevant offences against a law of a State that have a federal aspect.4Connected allegationA connected allegation is that the activities mentioned in paragraphs 3(a) to (z) and (ab) involve the commission of serious and organised crime.
Ratio Decidendi
Legal Principle Established
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