FEDERAL COURT OF AUSTRALIA
SS v Australian Crime Commission [2009] FCA 580
ADMINISTRATIVE LAW – validity of determination by Board of the Australian Crime Commission – whether within ambit of the Australian Crime Commission Act 2002 (Cth) – whether determination exceeded powers of the Board of the Australian Crime Commission
ADMINISTRATIVE LAW – validity of summons issued by the Australian Crime Commission – whether examiner satisfied it was reasonable to issue the summons – whether failure to record in writing the reasons for the issue of the summons a breach of s 25D of the Acts Interpretation Act 1901 (Cth) – whether examiner’s reasons a recent invention – whether summons issued in accordance with the Australian Crime Commission Act 2002 (Cth) – whether summons otherwise defective
PRACTICE AND PROCEDURE – public interest immunity – redaction of documents – effect on burden of proof – consequences of allegedly unjustifiable failure to discover relevant documents – whether defence should be struck out
PRACTICE AND PROCEDURE – further submissions after close of oral argument – requirement for leave
Held: application dismissed
Acts Interpretation Act 1901 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Crime Commission Act 2002 (Cth)
Australian Crime Commission Amendment Act 2004 (Cth)
Evidence Act 1995 (Cth)
Federal Court of Australia Act 1976 (Cth)AB Pty Ltd v Australian Crime Commission [2009] FCA 119
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Barnes v Boulton (2004) 139 FCR 356; [2004] FCA 1219
British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197
Brookfield v Yevad Products Pty Ltd [2004] FCA 1164
Carr v Finance Corporation of Australia Ltd (No 1) (1980) 147 CLR 246
CC Pty Ltd v Australian Crime Commission (No 2) (2007) 66 ATR 39; [2007] FCA 16
CC Pty Ltd v Australian Crime Commission (2007) 159 FCR 282; [2007] FCAFC 96
Church of Scientology Inc v Woodward (1982) 154 CLR 25
Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673
D v Australian Crime Commission (2006) 152 FCR 497; [2006] FCA 660
Freeman v Medical Practitioners Board of Victoria [2000] VSC 547
Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303
Hill v Woollahra Municipal Council & Ors (2003) 127 LGERA 7; [2003] NSWCA 106
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649
Jones v Dunkel (1959) 101 CLR 298
Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
P v Australian Crime Commission (2006) 151 FCR 114; [2006] FCAFC 54
Parramatta City Council v Hale (1982) 47 LGRA 319
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
ReApplication by the Chief Commissioner of Police (Vic) (2005) 214 ALR 422; [2005] HCA 18
State of Queensland v Central Queensland Land Council Aboriginal Corporation
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- Case
- [2009] FCA 580
- Decision Date
CaseChat Overview and Summary
The court found that the ATS determination, read together with the minutes of the Board's meeting and the agenda, sufficiently evidenced that the Board had considered the effectiveness of alternative methods of collecting criminal information and intelligence, as required by s 7C(2) of the ACC Act. The court held that the use of the past tense in the determination supported the inference that the consideration occurred before the determination, as required by the statute. The court also noted that there was no requirement for the minutes to explicitly state the Board's consideration, as the statutory obligation was met through the written determination. Consequently, the applicant's challenge to the validity of the ATS determination, the ATS determination amendment 2008, and the summons was dismissed.
In conclusion, the court dismissed the application with costs, subject to certain reservations regarding the costs incurred during a specific part of the hearing. The court's decision emphasised that the statutory requirements were satisfied by the written determination, and the applicant's arguments did not establish any failure on the part of the ACC's Board to properly consider alternative methods of information collection.
Orders
Orders of the court
1. The application be dismissed.
2. Subject to order 3 below, the applicant pay the respondents’ costs, as agreed or taxed.
3. Reserve the applicant’s costs of preparation for and the hearing between 11.30 am and 12.45 pm on 24 April 2009 with respect to the first respondent’s (withdrawn) application for leave to reopen and reserve the costs of the applicant’s notice of motion filed 25 May 2009 and heard on 29 May 2009.
Note:
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
Ratio Decidendi
Legal Principle Established
Established by: JAGOT J
The ATS determination records in writing an authorisation (paragraph 4) and a determination (paragraph 6) in precisely the terms required by ss 7C(1)(c) and (d) of the ACC Act. It also contains a paragraph recording a determination in writing about the class of persons to participate in the investigation, being paragraph 10 as follows:10 Classes of persons to participate in operationPursuant to paragraph 7C(1)(e) of the Act, the classes of persons to participate in the intelligence operation are those mentioned in Schedule 2. For these reasons SS’s second ground of challenge cannot be upheld. It is not to the point that the minutes of the Board’s meeting do not, in terms, record the matters identified by SS. There is no requirement in s 7C that the minutes do so. The issue is whether the Board did or did not authorise and/or determine matters in accordance with ss 7C(1)(c), (d) and (e). The minutes, read with the agenda and the ATS determination, prove that the Board authorised in writing in accordance with paragraph 4 of the ATS determination and determined in writing in accordance with paragraphs 6 and 10 of the ATS determination. The same reasoning must be applied to the last aspect of this ground of challenge. SS submitted that the Board’s resolution (or, more accurately, minutes) was not to the required effect that the Board considered the matter specified in s 7C(2) of the ACC Act. The answer to this submission is that s 7C(2) does not impose any obligation on the Board to record the fact of its consideration (see, to the same effect, X v Australian Crime Commission (2004) 139 FCR 413; [2004] FCA 1475 at [21] and P v Australian Crime Commission (2006) 151 FCR 114; [2006] FCAFC 54 at [22]-[23]). Section 7C(2) provides that the Board may determine in writing that an intelligence operation is a special operation (as referred to in s 7C(1)(d)). Section 7C(2) imposes a condition precedent on such a determination in writing, namely, that the Board consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in the ACC Act have been effective. The onus is on SS to prove any failure of consideration to the civil standard. SS must do so “in accordance with proper legal requirements and by inference not suspicion” (Parramatta City Council v Hale (1982) 47 LGRA 319 at 345). Paragraph 6(a) of the ATS determination records that the Board “has considered whether methods of collecting criminal information and intelligence that do not involve the use of powers in the Act have been effective”. There is no proper reason not to treat paragraph 6 as evidence of the Board’s discharge of its functions under s 7C(2) of the ACC Act. The use of the past tense “has considered” supports the inference that the consideration occurred before the determination, as s 7C(2) requires. Ground 3 SS submitted that, by necessary implication, s 7C(2) requires the Board to find that methods of collecting criminal information and intelligence not involving the use of powers in the ACC Act had not been effective before the Board may determine that an intelligence operation is a special operation.