VII v Purcell
[2025] FCA 202
•14 March 2025
FEDERAL COURT OF AUSTRALIA
VII v Purcell [2025] FCA 202
File number(s): VID 141 of 2024 Judgment of: HORAN J Date of judgment: 14 March 2025 Catchwords: ADMINISTRATIVE LAW – validity of determination made under Australian Crime Commission Act 2002 (Cth) – where determination made by Board authorising intelligence operation relating to federally relevant crime – whether determination required to state date and time when it was made – whether determination failed to identify scope and limits of special ACC operation or federally relevant crime to which it relates – whether Board could reasonably have been satisfied that it was in the public interest to authorise the intelligence operation to occur – whether determination invalidly purported to authorise investigations relating to a federally relevant crime – whether s 7C(2) of the Act validly authorised the Board to make the determination – whether Board acted on incorrect understanding of the law – Held: the determination is valid.
ADMINISTRATIVE LAW – validity of summons to appear at examination under the Act – whether summons complied with requirement to set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned – whether summons required to state on its face whether it was pre-charge or post-charge summons – whether examiner could reasonably have been satisfied that issuing summons was reasonable in all the circumstances – Held: the summons is valid.
CONSTITUTIONAL LAW – challenge to validity of s 7C(2) of the Act – whether s 7C(2) lacks rule-like content necessary to constitute a law – whether s 7C(2) is inconsistent with s 75(v) of the Constitution – challenge to validity of ss 24A, 25A and 28 of the Act – whether ss 24A, 25A and 28 have sufficient connection to a head of Commonwealth legislative power – application of ss 24A, 25A and 28 in relation to federally relevant crime, including State offences that have a federal aspect – Held: ss 7C(2), 24A, 25A and 28 of the Act are valid.
Legislation: Constitution ss 51(xxxix), 61, 75(v)
Acts Interpretation Act 1901 (Cth) ss 15A, 36(1)
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Australian Crime Commission Act 2002 (Cth) ss 4, 4A, 7, 7A, 7B, 7C, 7E, 7F, 7G, 7H, 7J, 16, 24A, 25A, 28, 30, 34A–34F, 46B
Australian Crime Commission Amendment (Special Operations and Special Investigations) Act 2019 (Cth)
Autonomous Sanctions Act 2011 (Cth) pt 3
Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth) pt 7.10
Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) sch 7
Criminal Code Act 1995 (Cth) sch 1, divs 134, 135, 302, 307, 400
Customs Act 1901 (Cth)
Foreign Acquisitions and Takeovers Act 1975 (Cth)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth)
Proceeds of Crime Act 2002 (Cth)
Taxation Administration Act 1953 (Cth)
Australian Crime Commission Establishment Bill 2002 (Cth)
Australian Crime Commission Regulations 2018 (Cth) regs 8(a), (b)
Cases cited: A1 v National Crime Authority (1996) 67 FCR 464
AA v Board of the Australian Crime Commission [2010] FCA 553
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Brown v Tasmania (2017) 261 CLR 328
CC Pty Ltdv Australian Crime Commission (No 2) [2007] FCA 16; 66 ATR 39
CC Pty Ltd v Australian Crime Commission (2007) 159 FCR 282
CXXXVIII v Commonwealth (2019) 266 FCR 339
D v Australian Crime Commission (2006) 152 FCR 497
Director of Public Prosecutions (Cth) v Brady [2016] VSC 334; 346 FLR 1
GG v Australian Crime Commission [2009] FCA 759
GG v Australian Crime Commission (2010) 182 FCR 513
Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479
LX v Commonwealth [2016] FCA 441; 338 ALR 667
Melbourne Corporation v Commonwealth (1947) 74 CLR 31
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24
Minister for Home Affairs v DLZ18 (2020) 270 CLR 372
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
National Crime Authority v A1 (1997) 75 FCR 274
O’Sullivan v Farrer (1989) 168 CLR 210
P v Australian Crime Commission [2005] FCA 55
P v Board of Australian Crime Commission (2006) 151 FCR 114
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
R v Hughes (2000) 202 CLR 535
S v Australian Crime Commission (2005) 144 FCR 431
S v Australian Crime Commission (2006) 149 FCR 361
Spence v Queensland (2019) 268 CLR 355
SS v Australian Crime Commission (2009) 224 FCR 439
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325
Swan Hill Corporation v Bradbury (1937) 56 CLR 746
Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
X7 v Australian Crime Commission (2013) 248 CLR 92
XCIV v Australian Crime Commission (2015) 234 FCR 274
XX v Australian Crime Commission (No 3) [2016] FCA 437; 335 ALR 180
XXVII v Commonwealth [2017] FCA 320; 265 A Crim R 519
XXVII v Commonwealth (2018) 261 FCR 50
Z v Australian Crime Commission (2010) 188 FCR 85
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 213 Date of hearing: 7 and 18 June 2024 Counsel for the Applicant: R Gray KC with W Mickan Solicitor for the Applicant: Patsouris & Associates Counsel for the Respondents: C Lenehan SC with T Wood and M Jackson Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 141 of 2024 BETWEEN: VII
Applicant
AND: ANDREW PURCELL
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
HORAN J
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the costs of the first respondent, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HORAN J:
INTRODUCTION
The applicant seeks judicial review of a summons dated 9 February 2024 (the Summons) that was issued by the first respondent under s 28(1) of the Australian Crime Commission Act 2002 (Cth) (ACC Act), requiring the applicant to appear before an examiner at the Australian Criminal Intelligence Commission (ACIC).
The Summons was issued for the purposes of an intelligence operation authorised by a determination of the Board of ACIC dated 12 December 2022 under s 7C(2) of the ACC Act, entitled “Special Australian Criminal Intelligence Commission Operation Determination (Serious Financial Crime) 2022” (the Determination). The applicant also challenges the validity of the Determination.
For the reasons set out below, I conclude that the applicant has not established any of the grounds of challenge to the Determination or the Summons.
In particular, s 7C(2) of the ACC Act validly authorised the Board to make the Determination, which was a valid exercise of the power conferred by that provision. It was not essential to the validity of the Determination that it state on its face the date and time when it was made by the Board. The Determination adequately identifies the special ACC operation and the federally relevant crime to which it relates. As a determination under s 7C(2) authorising an intelligence operation to occur, the Determination validly authorises the ACIC to undertake investigations relating to a federally relevant crime in so far as the special ACC operation involves such investigations, without the need for any separate determination made under s 7C(3) of the ACC Act.
Further, the Summons was validly issued for the purposes of the special ACC operation authorised by the Determination. The Summons complied with the requirement in s 28(3) of the ACC Act to set out the general nature of the matters in relation to which the applicant is to be questioned, so far as is reasonably practicable. When issuing the Summons, the respondent understood that it related to a pre-charge or pre-confiscation application examination, irrespective of whether that was expressly stated on the face of the Summons.
Accordingly, the application is dismissed.
BACKGROUND
The Determination
The Determination was signed by the Chair of the Board on 12 December 2022, and was expressed to commence operation immediately after it was made (cl 2). By the Determination, the Board authorised an intelligence operation to occur relating to the commission of “Specified Financial Offences” as defined in cl 3.2 and Schedule 1. The definition of “Specified Financial Offences” picks up elements of the definition of “serious and organised crime” contained in s 4 of the ACC Act in relation to a list of financial offences against certain legislation and related offences.
The operative provisions of the Determination are contained in cll 4 and 5, which provide as follows:
4. Determination
4.1The Board, pursuant to s 7C(4A) of the Act, considers, on the basis of the collective experience of the Board members voting at the meeting, that it is in the public interest that the Board authorise the intelligence operation identified in paragraph 4.2 to occur.
4.2Pursuant to s 7C(2) of the Act, the Board makes a determination authorising an intelligence operation to occur relating to the Specified Financial Offences that may have been, may be being, or may in future be, committed.
5. Purposes of the intelligence operation
The purposes of the intelligence operation identified in paragraph 4.2 are:
(a)primarily, to collect, correlate and analyse criminal information and intelligence about Specified Financial Offences that may have been, may be being, or may in future be, committed, including by:
(i) undertaking investigations;
(ii)identifying those persons and entities involved in the commission of Specified Financial Offences (including organised crime groups, associates, and facilitators (such as government officials and private sector professionals),
(iii)identifying the relationships between different persons and entities involved in the commission of Specified Financial Offences;
(iv)understanding the methods and techniques used in the commission of Specified Financial Offences;
(v)understanding the dynamic and changing environment in which Specified Financial Offences are committed; and
(vi)identifying vulnerabilities in Australia’s financial system (including the banking and financial services industries; remittance, money transfer and payment systems; and gambling, betting and wagering services);
(b)to collect evidence about Specified Financial Offences that may have been or that may be being committed (including by undertaking investigations);
(c)to disseminate the information, intelligence and evidence referred to in paragraphs (a) and (b) above, in accordance with the Act, including to:
(i)assist in the development of government policy and law reform; and
(ii)facilitate enforcement, prevention, disruption and regulation activities (including, where appropriate, arrests, seizures, confiscations and prosecutions); and
(d)contribute to the national database of criminal information and intelligence relating to the commission of Specified Financial Offences.
The term “Specified Financial Offence”, which is central to the operation of cll 4 and 5 of the Determination, is defined as follows in cl 3.2:
Specified Financial Offence means an offence that:
(a)involves 2 or more offenders and substantial planning and organisation;
(b)involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques;
(c)is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind;
(d)listed in Schedule 1 to this Instrument; and
(e)is punishable by imprisonment for a period of three years or more (except in relation to those offences identified in items (12) and (14) of Schedule 1 to this Instrument);
but does not include an offence identified in paragraph (e) or (f) of the definition of serious organised crime in the Act.
Schedule 1 sets out a list of specific offences against various provisions of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code), the Foreign Acquisitions and Takeovers Act 1975 (Cth), the Autonomous Sanctions Act 2011 (Cth) and the Corporations Act 2001 (Cth), as well as related offences against other provisions of the Criminal Code, the Corporations Act, the Bankruptcy Act 1966 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Customs Act 1901 (Cth), and the Taxation Administration Act 1953 (Cth). The final item in Schedule 1 specifies an offence of the same or a similar kind to those in the preceding items that is an offence against a law of a State and that “has a federal aspect”.
The offences specified in items (1) to (6) of Schedule 1 of the Determination are concerned with obtaining property or a financial advantage by deception, or other fraudulent conduct (Divs 134 and 135 of the Criminal Code); money laundering, including dealing with the proceeds or instruments of crime (Div 400 of the Criminal Code); financial information offences under Pt 10.8 of the Criminal Code, including dishonestly obtaining or dealing in personal financial information, which involve conduct causing a benefit or loss of at least $10,000; offences relating to sanctions under Pt 3 of the Autonomous Sanctions Act which involve conduct causing a benefit or loss of at least $10,000; and offences involving market misconduct and other prohibited conduct relating to financial products and financial services (Pt 7.10 of the Corporations Act).
The balance of Schedule 1 sets out “related items” which specify various classes of offences that must relate to any of the offences identified in items (1) to (6) or, in the case of a State offence covered by item (24), must be an offence of the same or a similar kind to the offences identified in items (1) to (23) and must have a “federal aspect”.
Clause 6 and Schedule 2 of the Determination set out the classes of person to participate in the intelligence operation for the purposes of s 7C(1)(e) of the ACC Act.
Application for a summons
On 8 February 2024, a Senior Responsible Officer of ACIC made an Application for the issue of a summons for the applicant’s examination under s 28(1) of the ACC Act. A copy of the Application, subject to redactions in respect of information attracting public interest immunity, was adduced into evidence.
Part A of the Application contained a “Statement of Facts and Circumstances” (SOFAC) which set out background about the special ACC operation authorised by the Determination and the circumstances in which the Summons was sought.
The relevant offences were identified in the Application as offences against specified provisions in Div 400 of the Criminal Code, which deals with money laundering, and related offences against specified provisions in Divs 302 and 307 of the Criminal Code, which respectively deal with trafficking controlled drugs and import-export offences (including importing and exporting border controlled drugs or border controlled plants, possessing border controlled drugs or border controlled plants that are unlawfully imported or reasonably suspected of having been unlawfully imported, and importing and exporting marketable quantities of border controlled precursors).
Paragraph 11 of the Application addressed how the summons application related to the Specified Financial Offences under the Determination, including the criteria requiring the involvement of two or more offenders and substantial planning and organisation, the use of sophisticated methods and techniques, and commission in conjunction with other offences of a like kind.
(a)In relation to the involvement of two or more offenders and substantial planning and organisation, the Application referred to “the Calabrian Mafia, otherwise known as ’Ndrangheta, and Ndrangheta transnational Australia group (NTAG)”, stating that “[t]he ’Ndrangheta is the wealthiest and most powerful Italian criminal organisation, and ranks among the world’s most powerful transnational serious organised crime (TSOC) syndicates”. The application stated that the ’Ndrangheta “are historically connected to large scale drug trafficking and associated money laundering and leverage off their global footprint to facilitate this offending”. Further, the Application stated that the nature of the Specified Financial Offences required substantial planning and organisation, including “the involvement of multiple layers of individuals in order for the cross jurisdictional importations to occur as well as the obfuscation of funds from law enforcement and regulatory bodies”.
(b)In relation to the use of sophisticated methods and techniques, the Application stated that “[e]ngaging in the laundering of criminal proceeds derived from drug importation and trafficking offences involves complex and sophisticated methods in order to avoid detection by law enforcement”, and that such methods and techniques “involve a complex layering of company structures and transactions to obfuscate the source and disguise the movement of illicitly-derived funds”. The Application also referred to the use of dedicated encrypted communication devices (DECDs) by persons and entities involved in the illicit activities.
(c)The Application stated that the relevant offending involved “the suspected commission of multiple offences of a like kind in conjunction with each other, namely, repeated instances of money laundering being committed to launder the financial proceeds derived from criminal activities”.
Paragraph 12 of the Application summarised the purposes of the special ACC operation relevant to the summons application, largely reproducing the purposes set out in paragraph 5 of the Determination.
The Application stated that, as part of the intelligence operation authorised by the Determination, the ACIC was conducting a project to investigate the involvement of the ’Ndrangheta in the commission of Specified Financial Offences, including “the networks and methodologies used by ’Ndrangheta to launder and obfuscate criminal proceeds, as well as other related offences, such as the importation, manufacture and distribution of border-controlled drugs”: Application at [18]. The project “seeks to identify and understand the instances where, and the extent to which, the Specified Financial Offences may have been, may be being, or may in the future be, committed by members and associates of the ’Ndrangheta”: Application at [27].
By way of background, the Application addressed the nature and criminal activities of the ’Ndrangheta, including persons or entities based in Australia, and the use by ’Ndrangheta of DECDs and messaging applications in connection with serious organised criminal activities.
The Application set out information relating to the applicant, including his personal details, criminal history and criminal associations. In relation to the specific evidence that was sought from the applicant and its relevance to the special ACC operation, the Application stated that “[i]t is suspected that the examinee can provide information or evidence that is relevant to the Operation about the commission of Specified Financial Offences being conducted [redacted] and other SOC [serious organised crime] groups in Victoria and around the globe”: Application at [61]. The Application continued (at [62]):
Specifically, it is believed that the examinee, as a prominent member of the [redacted], will be able to provide details regarding Italian Organised Crime and reputed ’Ndrangheta involvement in money laundering [redacted] remitting the proceeds of drug importations and domestic trafficking.
Paragraphs [63]–[66] of the Application, which were heavily redacted in the copy that was adduced into evidence, addressed details of the information that the applicant might be able to provide regarding the ’Ndrangheta, including current involvement in illicit activities and money laundering. In particular, paragraph [65] stated that the applicant “is to be questioned on his practices, specifically engaging other SOCs to conduct illicit activities on behalf of himself and the [redacted]”.
The Application stated that the applicant is not currently charged with any offence, nor are any charges imminent, and no confiscation proceedings have been commenced or are imminent: Application at [68]–[69].
In relation to whether it was reasonable in all the circumstances for an examiner to issue a summons, the Application relevantly stated at [70]–[71]:
It is believed that the examinee can provide evidence that is relevant to the Operation and would assist in achieving the purposes set out in paragraph 5 of the Determination. The examinee is believed to have direct knowledge and criminal involvement, in the importation and trafficking of drugs and Specified Financial Offences including money laundering activities. [Redacted] criminal activities including the importation of border-controlled drugs and use of DECD’s, therefore his knowledge of these matters will assist to build the ACIC’s understanding of the current ’Ndrangheta landscape within Australia.
The matters of which the examinee is to be examined are within the scope of the Operation and it is expected that the examinee will [redacted] by gathering relevant information in pursuit of the purposes in paragraph 5 of the Determination.
After referring to s 28(3) of the ACC Act (which requires a summons to set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, unless it would prejudice the effectiveness of the special ACC operation/investigation to do so), the Application stated (at [76]):
Noting the specific evidence considered the examinee is likely to give (as outlined above), it is submitted that the general nature of the matters in relation to which the examinee will be questioned are as follows:
(a)dealing with money and other property (including digital currency, electronic funds, cash and luxury assets) that is proceeds or instruments of crime, especially of importations into Australia and trafficking in Australia of border-controlled drugs (including cocaine, methylamphetamine and MDMA);
(b)the use of encrypted communication devices and messaging applications to facilitate such activities; and
(c)the identities of other persons and entities (in Australia and overseas) involved in such activities, particularly the ’Ndrangheta, and the nature and extent of their involvement.
The Application stated (at [77]), for consideration by the examiner, that the proposed general nature of the matters in relation to which the applicant was to be questioned was set out in the draft summons, as far as reasonably practicable. Further, the view was expressed that “[t]he effectiveness of the Operation would not be prejudiced by setting out, on the face of the summons, the general nature of the matters as identified above”: Application at [78]–[79].
Part B of the Application contained a “Legal Certification” signed by “Counsel Assisting”, as a “Senior Lawyer”, who had reviewed the Application and was satisfied that it adequately addressed all relevant matters. The certification stated that it was open to the examiner to be satisfied that it was reasonable in all the circumstances for the summons to be issued as proposed. In particular, Counsel Assisting stated that he or she had reviewed the proposed wording of the draft summons and believed “that it adequately sets out, so far as is reasonably practicable, the ‘general nature of the matters’ in relation to which the examinee is proposed to be questioned (subject to the views of the Examiner)”.
Issue of the Summons
At 11.46 am on 9 February 2024, the respondent issued the Summons to the applicant under s 28 of the ACC Act for the purposes of the special ACC operation authorised by the Determination. The applicant was required to appear at an examination to give evidence at 10.00 am on 23 February 2024 and from day to day unless excused, or released from further attendance, by the examiner. The examination has been deferred pending the determination of these proceedings.
Under the heading “General nature of matters in relation to which you are to be questioned (section 28(3))”, the Summons stated:
5.At the examination, you are to be questioned in relation to matters of the following general nature:
(a)dealing with money and other property (including digital currency, electronic funds, cash and luxury assets) that is proceeds or instruments of crime, especially of importations into Australia and trafficking in Australia of border-controlled drugs (including cocaine, methylamphetamine and MDMA);
(b)the use of encrypted communication devices and messaging applications to facilitate such activities; and
(c)the identities of other persons and entities (in Australia and overseas) involved in such activities, particularly the ’Ndrangheta, and the nature and extent of their involvement.
The Summons included a notation pursuant to s 29A of the ACC Act about disclosure of information in relation to the existence of the Summons, or any information about it, except in specified circumstances. The exceptions relevantly include disclosure to this Court for the purpose of an application to challenge the lawfulness of the Summons, provided that an interlocutory application is also filed seeking an order that the applicant’s name be suppressed and replaced by a pseudonym.
The Summons stated that the respondent was satisfied that issuing the Summons was reasonable in all the circumstances.
The respondent’s statement of reasons for the issue of the Summons
At 11.30 am on 9 February 2024, the respondent signed a statement of reasons for the decision to issue the summons.
For the purposes of determining whether to issue the summons, the respondent had regard to the Determination, the SOFAC and legal certification dated 8 February 2024, and the draft summons and its proposed annexures. Based on those materials, the respondent was satisfied that it was reasonable in all the circumstances to issue the summons.
The copy of the statement of reasons that is in evidence is heavily redacted in parts to remove information that is subject to an unchallenged claim of public interest immunity. Nevertheless, it appears from the statement of reasons that the respondent was satisfied that there were reasonable grounds for suspecting that the applicant would be able to give evidence of matters relevant to the special ACC operation being undertaken pursuant to the Determination.
The respondent considered it reasonable to suspect that the applicant, along with associates who are reputed to be members of the ’Ndrangheta, has been and still was engaged in serious and organised crime including Specified Financial Offences. The respondent stated that he was satisfied “that the statutory thresholds for ‘serious and organised crime’ (being a sub-component of ‘federally relevant crime’) are met in the context of [redacted] proposed examination”. The respondent referred to ACIC intelligence holdings in relation to the membership and activities of the ’Ndrangheta organised crime group in Australia, including its involvement in drug trafficking and money laundering. The respondent stated that, having regard to the information before him, it was reasonable to expect that the applicant was well placed to give evidence and provide intelligence regarding Specified Financial Offences amounting to federally relevant crime within the scope of the special ACC operation.
The respondent found that the examination under the summons would be a pre-charge and pre-confiscation application examination. The respondent was satisfied that the examinee was more likely to give evidence if compelled to do so pursuant to the Summons, and that the proposed examination was in the public interest in order to enable the ACIC to perform its important public functions as set out in the ACC Act, notwithstanding the inevitable infringement of the privacy, rights and privileges of the examinee and possibly other persons.
At the same time as he signed the statement of reasons, the respondent also signed a document entitled “Satisfaction that the summons set out the general nature of the matters in which the person is to be questions to the extent reasonably practicable” for the purposes of s 28(3) of the ACC Act. In this document, the respondent recorded his satisfaction to that effect, based upon his consideration of the materials set out above, and having regard to the particular circumstances of the special ACC operation to which the examination related; the general scope of the matters it was proposed to question the examinee about; the “inherently inquisitorial, exploratory and organic nature of examinations”; and relevant case law, including XCIV v Australian Crime Commission (2015) 234 FCR 274 at [77]–[87] (Wigney J) and XXVII v Commonwealth [2017] FCA 320; 265 A Crim R 519 at [72]–[75] (Charlesworth J).
Finally, the respondent contemporaneously signed a document entitled “Reasons for inclusion of a notation in the summons prohibiting disclosure” for the purposes of s 29A of the ACC Act. In this document, the respondent recorded his satisfaction that failure to include the notation would reasonably be expected to prejudice the safety or reputation of a person and the effectiveness of an operation, having regard to the covert nature of the special ACC operation, the relationship between the examinee and persons whose identity was redacted, and the possibility of collusion or the destruction or fabrication of evidence.
LEGISLATIVE SCHEME
Section 7(1) of the ACC Act establishes the Australian Crime Commission, which is also known as the ACIC: see s 7(1A), together with reg 8(a) and (b) of the Australian Crime Commission Regulations 2018 (Cth).
ACIC consists of the Chief Executive Officer (CEO), the examiners appointed under s 46B(1), and members of staff: s 7(2). The Board consists of the Commissioner of the Australian Federal Police (as the Chair), the CEO, the Secretary of the Attorney-General’s Department, the Comptroller-General of Customs, the Chairperson of the Australian Securities and Investments Commission, the Director-General of Security, the Commissioner of Taxation, and the Commissioner or head of the police force of each State, the Northern Territory and the Australian Capital Territory: s 7B(2), (3).
Meetings of the Board are presided over by the Chair, with a quorum of nine Board members (apart from the CEO): ss 7E, 7F. Voting at Board meetings is determined by a majority of the votes of Board members present at the meeting (other than the CEO), with the person presiding having both a deliberative and a casting vote: s 7G.
The functions of the ACIC relevantly include undertaking “special ACC operations” and “special ACC investigations”, and providing reports to the Board on the outcomes of those operations or investigations: s 7A(b), (c) and (d). “Special ACC operation” is defined in s 4(1) of the ACC Act as “an intelligence operation that the Board has authorised to occur under subsection 7C(2)”, and “special ACC investigation” is defined as “an investigation relating to a federally relevant crime that the Board has authorised to occur under subsection 7C(3)”.
For such purposes, “intelligence operation” is defined as follows in s 4(1):
intelligence operation means an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime, but that may involve undertaking investigations relating to a federally relevant crime.
The definition of “federally relevant crime” is as follows:
federally relevant crime means a relevant crime that is:
(a) an offence against a law of the Commonwealth or of a Territory; or
(b) an offence against a law of a State that has a federal aspect.
A “relevant crime” is relevantly defined as a “serious and organised crime” that may have been, may be being, or may in future be, committed, and that is an offence against a law of the Commonwealth, of a State or of a Territory. The term “serious and organised crime” is defined in s 4(1). That definition contains a number of components that relate both to the seriousness of the offence and the level of organisation involved in its commission. A “serious and organised crime” is an offence that involves two or more offenders and substantial planning and organisation, that involves (or is of a kind that ordinarily involves) the use of sophisticated methods and techniques, that is committed (or is of a kind that is ordinarily committed) in conjunction with other offences of a like kind, and that is either a serious offence within the meaning of the Proceeds of Crime Act 2002 (Cth) or various other specified or prescribed offences punishable by imprisonment for a period of three years or more. The specified offences include offences involving any of a list of matters, including money laundering and illegal drug dealings.
Section 4A deals with when a State offence has a “federal aspect”. In broad terms, this requires that the provision creating the State offence would have been a valid law of the Commonwealth if it were assumed that the law had been enacted by the Commonwealth Parliament instead of by the State Parliament: s 4A(2)(a). In certain circumstances, a State offence can have a “federal aspect” if a provision creating an offence that penalises the specific acts or omissions involved in committing the State offence could be validly enacted by the Commonwealth Parliament, including by reference to various matters that are intended to provide a connection with a subject matter within Commonwealth legislative power: s 4A(2)(c), (3), (4), (5). The definition of “federal aspect” also extends to the investigation of ancillary offences (such as conspiracy to commit a primary offence, or aiding, abetting, counselling, procuring or being knowingly concerned in the primary offence), and to investigations relating to a State offence in circumstances where that investigation is incidental to an investigation or intelligence operation that is being undertaken by the ACIC in relation to a Commonwealth or Territory offence: s 4A(2)(b), (d), (e). Thus, the object of s 4A is to identify State offences that potentially fall within Commonwealth legislative power because of their elements or the circumstances in which they were committed, or the investigation of which is incidental to an investigation or intelligence operation undertaken by the ACC in relation to an offence against a law of the Commonwealth or a Territory: s 4A(1).
The functions of the Board relevantly include authorising an intelligence operation or an investigation relating to a federally relevant crime — the former by a determination made under s 7C(2) and the latter by a determination made under s 7C(3). As mentioned above, an intelligence operation that the Board has authorised to occur under s 7C(2) is a special ACC operation, and an investigation relating to a federally relevant crime that the Board has authorised to occur under s 7C(3) is a special ACC investigation. The Board cannot make a determination authorising a special ACC operation or a special ACC investigation unless at least nine Board members (including at least two eligible Commonwealth Board members) vote in favour of making the determination: s 7G(4).
The Board’s power to make determinations under s 7C(2) or (3) is governed by the succeeding subsections of s 7C, which are central to the grounds of review relied on by the applicant in the present case:
(4)A determination under subsection (2) or (3) may identify the federally relevant crime to which the determination relates at whatever level of generality the Board considers appropriate including (without limitation) by reference to:
(a) categories of federally relevant crimes; or
(b) categories of suspected offender; or
(c) specific allegations of federally relevant crimes; or
(d) specific offenders; or
(e) any combination of the above.
(4A)The only condition for the exercise of the power under subsection (2) or (3) is that the Board considers, on the basis of the collective experience of the Board members voting at the meeting when a determination is made, that it is in the public interest that the Board authorise an intelligence operation, or an investigation relating to a federally relevant crime, to occur.
(4B)To avoid doubt, a determination under subsection (2) or (3) can be made, and has effect, regardless of whether the ACC:
(a)is, at the time the determination is made, already investigating any or all of the federally relevant crimes to which the determination relates; or
(b)subsequently investigates any or all of the federally relevant crimes to which the determination relates by any means other than through the exercise by an examiner of the powers under Division 2; or
(c)decides to investigate any or all of the federally relevant crimes to which the determination relates because of a request for assistance by another law enforcement agency.
(4C)A determination under subsection (2) or (3) must, to the extent that the Board reasonably considers appropriate having regard to the level of generality at which it is authorising an intelligence operation, or an investigation relating to a federally relevant crime, to occur, set out the purposes of the operation or investigation.
(4CA)To avoid doubt, a determination under subsection (2) or (3) authorising an intelligence operation, or an investigation relating to a federally relevant crime, to occur is not required to specify:
(a) any particular offence or offences; or
(b)any particular conduct, transaction or person to which the investigation or operation relates; or
(c) any timeframe within which:
(i)any federally relevant crime may have been, may be being, or may in future be, committed; or
(ii)the investigation or operation must commence or be completed.
(4D)The Board may, at any time, revoke a determination made under subsection (2) or (3).
(4E)A special ACC operation can be undertaken only while a determination under subsection (2) is in force.
(4F)A special ACC investigation can be undertaken only while a determination under subsection (3) is in force.
(4G)A determination under subsection (2) or (3) is in force during the period:
(a) beginning immediately after the determination is made; and
(b) ending at the earliest of the following:
(i)the end of the period of 3 years beginning immediately after the determination is made;
(ii)the end of the day on which the determination is revoked under subsection (4D);
(iii)if the determination is revoked under subsection 9(7)—when the CEO is notified of the revocation.
(4H)Paragraph (4G)(b) does not prevent the making of another determination under subsection (2) or (3) in the same terms as the expired or revoked determination.
(4J)The validity of the determination is not affected by any failure to comply with subsection (4C).
(4K)A determination made under subsection (2) or (3) is not a legislative instrument.
The following aspects of s 7C are of particular relevance to the parties’ submissions in relation to the grounds of the present application, dealing with the temporal limits on a determination to authorise an intelligence operation or an investigation into a federally relevant crime, the state of mind that must be formed by the Board in order to make a determination, and the content of any such determination.
(a)In order for a special ACC operation or a special ACC investigation to be undertaken, a determination made by the Board under s 7C(2) or (3) must be in force, authorising the operation or investigation to occur: s 7(4E), (4F). Such a determination is in force for a period of three years beginning immediately after the determination is made, unless earlier revoked: s 7C(4G).
(b)The exercise of the power to make a determination under s 7C(2) or (3) is subject to the condition that the Board must consider that it is in the public interest that the Board authorise the relevant operation or investigation to occur: s 7C(4A). Such a state of mind is to be formed “on the basis of the collective experience of the Board members voting at the meeting when a determination is made”. This is expressed to be the “only condition” for the exercise of the power to make a determination under s 7C(2) or (3).
(c)The federally relevant crime to which a determination under s 7C(2) or (3) relates may be identified “at whatever level of generality the Board considers appropriate”: s 7C(4). This may include by reference to categories of federally relevant crime or suspected offender, or specific allegations of federally relevant crimes or specific offenders, or any combination thereof. The determination is not required to specify any particular offence or offences; nor any particular conduct, transaction or persons to which the operation or investigation relates; nor any timeframe within which any federally relevant crime may have been, may be being or may in future be committed; nor any timeframe within which the operation or investigation must commence or be completed: s 7C(4CA).
(d)The determination must set out the purposes of the relevant operation or investigation, to the extent that the Board reasonably considers appropriate having regard to the level of generality at which it is authorising the operation or investigation to occur: s 7C(4C). However, any failure to comply with this requirement does not affect the validity of the determination: s 7C(4J).
Division 2 of Pt II of the ACC Act deals with the conduct of examinations. In particular, s 24A provides that an examiner may conduct an examination for the purposes of a special ACC operation/investigation, which may be either a pre-charge examination or a post-charge examination depending on whether or not, at the time that the examination commences, the examinee has been charged with a related offence that is still to be resolved, or such a charge is imminent. A similar distinction is drawn between pre-confiscation application and post-confiscation application examinations.
Section 28(1) of the ACC Act confers power on an examiner to summon a person to appear before an examiner at an examination to give evidence or to produce any documents or other things referred to in the summons. The power to issue a summons must be exercised for the purposes of a special ACC operation/investigation: s 28(7). The examiner must be satisfied that issuing the summons is reasonable in all the circumstances and, in the case of a post-charge or post-confiscation application summons, reasonably necessary for the purposes of the relevant operation or investigation even though the person has been charged, the confiscation proceeding has commenced, or a charge or proceeding is imminent: s 28(1)(c), (d). The examiner must record in writing the reasons for the issue of the summons, either before or at the same time of its issue: s 28(1A).
A summons issued under s 28(1) of the ACC Act must be accompanied by a copy of the Board’s determination under s 7C(2) or (3): s 28(2). Further, s 28(3) provides:
(3)A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.
Note:Those matters could relate to a charge or confiscation proceeding against the person (see subsection 25A(6A)).
It is an indictable offence under s 30 of the ACC Act for a person to fail to attend at an examination as required by a summons, to refuse or fail to comply with a requirement to take an oath or affirmation, to refuse or fail to answer a question that he or she is required to answer by the examiner, or to refuse or fail to produce a document or thing that he or she was required to produce by the summons. Where the person claims that answering a question or producing a document or thing might tend to incriminate the person or render him or her liable to a penalty, s 30(4), (5), (5A) and (5B) provide that the answer, document or thing is not admissible in evidence against the person in a criminal proceeding, a proceeding for the imposition of a penalty, or a confiscation proceeding.
A refusal or failure to take an oath or affirmation, to answer a question, or to produce a document or thing may also place the person in contempt of the ACIC, which may be dealt with on an application by the examiner to the Federal Court or the Supreme Court of the relevant State or Territory in which the examination is being conducted : s 34A to 34F.
GROUNDS OF REVIEW
The applicant challenges the validity of both the Summons and the Determination on a number of grounds.
Grounds 1 to 4 relate to the alleged invalidity of the Summons.
(a)Ground 1: The applicant alleges that the Summons fails to comply with s 28(3) of the ACC Act, in that it fails to set out the general nature of the matters in relation to which the applicant is to be questioned, either at all or as far as is reasonably practicable, or in a manner that allows the applicant to understand the limits or boundaries of the proposed examination.
(b)Ground 2: The applicant alleges that the Summons is invalid because the Determination was not validly made under s 7C(2). This ground is dependent on the applicant’s success on one or more of Grounds 5 to 10 in relation to the validity of the Determination.
(c)Ground 2a: The applicant seeks leave to amend the originating application to add a ground alleging that, by reason of the breadth of the Determination, the respondent could not reasonably have been satisfied that issuing the Summons was reasonable in all the circumstances for the purposes of s 28(1) of the ACC Act.
(d)Ground 3: The applicant alleges that, in forming the state of mind that it was reasonable in all the circumstances to issue the Summons, the respondent acted on an incorrect understanding of the law, namely that each of ss 24A, 25A and 28 of the ACC Act are valid. The applicant alleges that those provisions are wholly or partially invalid “by reason of the tenuous nature of the connection (in some of their operations) between each of those provisions and any head(s) of Commonwealth legislative power (including by virtue of the dependence on the definition of federally relevant crime in s 4(1) of the Act, the relational concepts employed in each of ss 24A, 25A and 28, the subjective states of minds of decision-makers, and each of these in combination)”.
(e)Ground 4: The applicant alleges that the respondent misunderstood the type of summons that he was issuing, in that the Summons failed to state whether it related to a pre-charge examination or a post-charge examination, or a pre-confiscation application examination or a post-confiscation application examination.
Grounds 5 to 10 relate to the alleged invalidity of the Determination, or the decision of the Board to make the Determination.
(a)Ground 5: The applicant alleges that the Determination fails to state the date on which and the time at which it was made by the Board, contrary to s 7C(2), (4E) and (4G) of the ACC Act. In circumstances where a determination under s 7C is in force during the period of three years “beginning immediately after the determination is made”, and where a special ACC operation can be undertaken only while a determination is in force, the applicant submits that a determination is required to state the date and time of the Board’s resolution to make the determination under s 7C(2).
(b)Ground 6: The applicant alleges that the Determination, in purporting to authorise an intelligence operation relating to “Specified Financial Offences”, fails properly or adequately to identify the scope and limits of the special ACC operation or the federally relevant crime to which it relates, such that the Board could not reasonably have been satisfied for the purposes of s 7C(2) and (4A) that it was in the public interest to authorise the intelligence operation to occur.
(c)Ground 7: The applicant alleges that the Determination purports to authorise investigations relating to a federally relevant crime without the Board having specifically authorised that any such investigation should occur by a determination made under s 7C(3).
(d)Ground 8: The applicant alleges that the Determination fails to identify the federally relevant crime to which the intelligence operation relates “in such a way that examiners exercising executive power in reliance upon such a determination, persons subject to the exercise of that power, and/or a Court exercising judicial power, are able to ascertain the scope or limits of the authorisation and the federally relevant crime to which such determination relates”, so as to be able to ascertain the limits of the examiner’s power to conduct an examination.
(e)Ground 9: The applicant alleges that s 7C(2) of the ACC Act is constitutionally invalid in so far as it purports to confer on the Board a power that is capable of being exercised in such a way that it is impossible to ascertain the scope or limits of a special ACC operation “and, as such, is inconsistent with both the nature of executive power under the Constitution and with Ch III and s 75(v) of the Constitution”, or “lacks the essential content necessary … to constitute a ‘law’ as it does not identify or determine the content of a law as a rule of conduct or declaration as to power, right or duty”.
(f)Ground 10: The applicant alleges that Board formed the collective state of mind referred to in s 7C(4A) on an incorrect understanding of the law, namely, that each of ss 24A, 25A and 28 of the ACC Act is wholly valid in its application to all classes of federally relevant crime. The applicant repeats the contention that ss 24A, 25A and 28 of the ACC Act are wholly or partially invalid (see Ground 3 above).
CONSIDERATION
It is convenient first to consider the challenge to the Determination which, if successful, would render the Summons invalid: see ss 7C(4E) and 28(7) of the ACC Act. In the event that the validity of the Determination is upheld, the applicant separately challenges the validity of the Summons purportedly issued by the respondent under s 28(1) of the ACC Act.
Validity of the Determination
The following issues are raised by the grounds challenging the validity of the Determination.
(a)Is the Determination invalid because it fails to state or record when it was purportedly made by the Board (Ground 5)?
(b)Is the Determination invalid because it does not properly or adequately identify the scope and limits of the special ACC operation or the federally relevant crime to which it relates, such that the Board could not have reasonably been satisfied it was in the “public interest” to authorise the special ACC operation (Ground 6) and an examiner, an examinee or a court is unable to ascertain the scope and limits of the special ACC operation and the federally relevant crime to which it relates (Ground 8)?
(c)Is the Determination invalid because it purports to authorise an “investigation” into federally relevant crime, despite the Board not having made any determination pursuant to s 7C(3) of the ACC Act (Ground 7)?
(d)Is s 7C(2) of the ACC Act inconsistent with the nature of executive power or with Ch III or s 75(v) of the Constitution, because it confers on the Board a power that is capable of being exercised in such a way that it is impossible for an examiner, and examinee or a court to ascertain the scope and limits of a special ACC operation? Alternatively, does s 7C(2) of the ACC Act lack the essential content necessary to constitute a “law”, because it fails to identify or determine a rule of conduct or a declaration as to a power, right or duty? (Ground 9)
(e)Are any of ss 24A, 25A and 28 of the ACC Act invalid by reason of the tenuous nature of the connection between those provisions in some of their operations with any head or heads of Commonwealth legislative power (Ground 10)?
For completeness, I note that no reliance is placed by either party on s 16 of the ACC Act, which provides as follows:
16 Limitation on challenge to Board determination
If a determination is made under:
(a) subsection 7C(2); or
(b) subsection 7C(3);
then, except in a proceeding instituted by the Attorney‑General of the Commonwealth or the Attorney‑General of a State, any act or thing done by the ACC because of that determination must not be challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made.
I assume that this is because it is accepted, at least for present purposes, that this provision does not prevent review by a court of a purported determination made without or beyond jurisdiction, nor review of a summons issued by an examiner for the purposes of a special ACC operation/investigation pursuant to such an invalid determination: see P v Board of Australian Crime Commission (2006) 151 FCR 114 (P v ACC) at 121 [24]–[26] (Mansfield, Dowsett and Lander JJ); D v Australian Crime Commission (2006) 152 FCR 497 at 503 [31] (Mansfield J); CC Pty Ltdv Australian Crime Commission (No 2) [2007] FCA 16; 66 ATR 39 at [49]–[50] (Mansfield J); GG v Australian Crime Commission [2009] FCA 759 at [69]–[72] (Besanko J) (GG v ACC); Director of Public Prosecutions (Cth) v Brady [2016] VSC 334; 346 FLR 1 at [333]–[338] (Hollingworth J); XXVII at [37]–[39] (Charlesworth J); XXVII v Commonwealth (2018) 261 FCR 50 at [12]–[13] (Dowsett J) (XXVII (FC)); see generally Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
On one view, s 16 is framed as a restriction on standing, operating to prevent a determination from being challenged by any person other than the Attorney-General of the Commonwealth or the Attorney-General of a State, rather than as a conventional privative clause. Further, it appears to be directed primarily at protecting the ACIC and its officers in the conduct of a special ACC operation/investigation, and to restrict collateral challenges based on the alleged invalidity of a determination made by the Board. However, it is unnecessary to explore such issues further in the present case.
Is the Determination invalid because it fails to state or record the date on which it was made (Ground 5)?
Section 7C(4G) imposes a temporal limit on the period for which a determination under s 7C(2) or (3) is in force, which in turn limits the period during which a special ACC investigation/operation can be undertaken under s 7C(4E) and (4F). Prior to the enactment of s 7C(4G), there was no requirement for the Board to specify an end date for a special investigation or operation, although the Board had power to impose or fix a time limit when making a determination: see e.g. P v ACC at [31] (Mansfield, Dowsett and Lander JJ); XXVII (FC) at [39]–[40] (Dowsett J), [85]–[86] (Wigney J).
The applicant submitted that the Determination “omits a key textual feature indispensable to its validity”, because it “does not reveal in terms when it was, as a matter of fact, made”. While the Determination was signed by the Chair of the Board on 12 December 2022, the applicant submits that “there is no textual or contextual basis to construe this as reflecting the date on which it was made”.
The applicant submitted that the commencement of a determination under s 7C(2) or (3) limits the extent to which the ACIC can exercise its coercive powers for the purposes of a special ACC operation/investigation, ensuring that such powers extend no longer than is necessary to achieve the purposes of that operation or investigation and do not continue for an indeterminate period. Accordingly, the applicant submitted that the date on which a determination was made must be ascertainable on the face of the determination, otherwise it would not be possible for an examiner, an examinee or a court to establish whether the determination is in force and whether the coercive powers conferred by the ACC Act can be validly exercised for the purposes of the special ACC investigation/operation. The applicant submitted that the commencement date is “an anterior question of fact” and “a key integer which renders a determination lawful and engenders the proper use of the ACC’s coercive powers”.
In support of these submissions, the applicant argued that a determination made under s 7C(2) or (3) of the ACC Act must enable those affected by an exercise of the ACC’s coercive powers to ascertain whether those powers are being exercised lawfully: see e.g.A1 v National Crime Authority (1996) 67 FCR 464 at 480, 484 (Merkel J); National Crime Authority v A1 (1997) 75 FCR 274 at 294–295 (von Doussa and Sundberg JJ) (NCA v A1). Section 28(2) of the ACC Act provides that a summons to appear at an examination must be accompanied by a copy of the determination. Among other things, the recipient of the summons should be able to ascertain on the face of the determination whether or not it remains in force.
The applicant noted that previous cases appear to be consistent with a practice of expressly stating in a determination made under s 7C of the ACC Act the time and date that the determination was made by the Board under the signature of the person who presided at the meeting: see CC Pty Ltd at [14]–[18] (Mansfield J); GG v ACC at [21] (Besanko J); AA v Board of the Australian Crime Commission [2010] FCA 553 at [154] (Foster J); Z v Australian Crime Commission (2010) 188 FCR 85 at [30], [126] (Reeves J) (Z v ACC).
The respondent submitted that the ACC Act does not expressly require that a determination made under s 7C must specify the date on which, or the time at which, it was made. Further, the respondent contended that it should be inferred from the fact that the Determination was signed and dated by the Chair of the Board on 12 December 2022 that the Determination was made by the Board on that date, and that such an inference is consistent with the statement in the SOFAC at [3] that the Board made the determination pursuant to s 7C(2) of the ACC Act on 12 December 2022.
I note that this ground of review is not directed at raising any controversy as to when the Determination was in fact made by the Board. Rather, the applicant’s argument is that the Determination does not reveal on its face the time or date that it was made, in order to establish whether an examiner has power under s 28 of the ACC Act to summon a person to appear at an examination for the purposes of the special ACC operation/investigation that is purportedly authorised by the Determination. Accordingly, it is not to the point whether the making of the Determination by the Board at a particular time or date can be proved by evidence extrinsic to the instrument itself.
The power under s 28 of the ACC Act to summon a person to appear at an examination can only be exercised for the purposes of an extant special ACC operation/investigation, which requires there to be a determination under s 7C(2) or (3) that is in force. Unless earlier revoked by the Board, such a determination remains in force during the period of three years beginning immediately after the determination is made: s 7C(4G). It follows that the time at which a determination is made is relevant to the period during which a special ACC operation/investigation may be undertaken and the coercive powers conferred by s 28 of the ACC Act may be exercised for the purposes of that operation or investigation. Given that the period begins “immediately” after the determination is made, the commencement of the period arguably turns on the particular time at which the resolution to make the determination is passed by the Board. It is less clear whether that precise time of day is relevant to the end of the three-year period under s 7C(4G)(b)(i), or whether the period can be treated as running for three years after the day on which the determination was made: cf. s 36(1) of the Acts Interpretation Act 1901 (Cth). It is unnecessary to resolve that question for the purposes of the present case.
A determination made by the Board under s 7C(2) or (3) is not a legislative instrument: s 7C(4K). Nevertheless, such a determination must be “in writing”. The purpose of that requirement is “to secure certainty as to the terms of the determination, so that the obligations arising from the determination can be implemented and the consequences arising from actions taken by reason of the determination can be properly validated”: CC Pty Ltd at [32] (Mansfield J); see also Z v ACC at [45] (Reeves J).
For such purposes, a resolution passed by the Board that a determination be made is not necessarily to be equated with the determination itself. Section 7G(4) of the ACC Act contemplates that the requisite number of Board members must “vote in favour of making the determination”. When such a resolution has been passed by the Board, whether at a Board meeting or outside a Board meeting in accordance with s 7J, the determination the subject of the resolution is made by the Board. In relation to meetings, the Board must ensure that minutes are kept: s 7H(2). Ordinarily, a document containing the form of determination will have been included in the relevant papers or materials presented to the Board in relation to the proposed resolution. Such a draft instrument will become the Board’s determining “in writing” upon the passing of the resolution in compliance with s 7G(4) of the ACC Act: see CC Pty Ltd at [33]–[34] (Mansfield J); Z v ACC at [47] (Reeves J).
In practice, the document or instrument comprising the determination that is the subject of the Board’s resolution will commonly be signed or endorsed as such by the Chair. Such a signature serves as an authentication by which persons affected by the making of the determination might be satisfied of its authenticity: CC Pty Ltd at [35] (Mansfield J). However, the date on which a determination is made is the date on which the resolution is passed by the Board, rather than the date on which the instrument is authenticated by the Chair’s signature, if there were to be any difference between those two dates.
In the present case, the Determination is contained in an instrument that was signed and dated by the Chair of the Board. Clause 4.2 of the Determination states that the Board “makes” a determination authorising an intelligence operation to occur relating to the Specified Financial Offences that may have been, may be being, or may in future be committed. Clause 4.1 states that the Board “considers” that it is in the public interest that the Board authorise that intelligence operation to occur. Each of those clauses was expressed in the present tense. The only date borne by the instrument is 12 December 2022, which appears below the signature of the Chair of the Board. In my view, at least in circumstances where the resolution to make the Determination was passed at a meeting of the Board, it is open to infer from the signature of the Chair who presided at that meeting (see s 7E of the ACC Act) that the Determination was made by the Board on that date.
I do not consider that it is essential to the validity of a determination made under s 7C(2) or (3) that it contains an express statement to the effect that the Board made the instrument by a resolution passed at a particular time or on a particular date. The fact that such a practice may have been adopted in previous cases does not entail a conclusion that such a statement was necessary in order for the determination to be valid. Further, as discussed below, the inclusion of such a statement in or on an instrument is not necessarily to be regarded as forming part of the determination itself.
In CC Pty Ltd, Mansfield J held that a determination under s 7C(3) had been made by the Board in writing when it passed a resolution in relation to a draft instrument which, upon that resolution, “became the Board’s determination in writing”: at [33]. Significantly, the determination was made at that time notwithstanding that the instrument “did not record the date and time at which it was made and it had the distinct appearance of a draft”: CC Pty Ltd at [36]. While the instrument was later signed and dated by the Chair of the Board, in accordance with an authorisation under the Board’s resolution, it was implicit in the reasons for judgment of Mansfield J that this was not essential to the validity of the determination. Thus, his Honour found that the determination was (validly) made on 13 May 2003, when the Board met and resolved “in the terms of the instrument provided to the Board” to authorise the ACC to investigate the relevant matter, and not on 15 May 2003, when the Chair signed and inserted that date in the blank spaces provided in the draft instrument. Nor did anything turn on the fact that the date inserted by the Chair did not reflect the correct date on which the determination was made.
An appeal from the decision of Mansfield J was dismissed: CC Pty Ltd v Australian Crime Commission (2007) 159 FCR 282 (CC Pty Ltd (FC)). In setting out the terms of the draft instrument that was provided to the Board (at [8]), the Full Court (Branson, Lindgren and Besanko JJ) did not include the certificate that was to be signed by the Chair of the Board in relation to the making of the instrument by the Board and the time and date of the Board’s resolution. The Court (at [11]) agreed with the respondents’ submission that the Chair’s endorsement of the instrument adopted by the Board was “in the nature of a certification or authentication of an Instrument previously made by the Board”, so that the determination was either made in writing when the Board passed its resolution or was not made in writing at all. On that question, the Court upheld the conclusion reached by Mansfield J that the Board made a determination in writing when it passed the resolution adopting the draft instrument, which at that moment became the instrument by which the Board made the relevant determinations in writing: see at [17], [27].
In this context, “determine” was interpreted as meaning “decide” or “resolve”, and that “[w]hat the statute requires is that there be writing that purports to be or to represent the outcome of a relevant voting process of the Board”: CC Pty Ltd (FC) at [18]–[20]. The Full Court stated (at [21]):
It is therefore necessary to consider the content of the draft/adopted Instrument. The form of the contemplated certification does not form part of it. Paragraphs 4, 5 and 6 of the draft/adopted Instrument refer to s 7C(1)(c), (d) and (e) of the Act. Their operative terms are expressed in the present tense. That is to say, they purport to be the embodiment of a present authorisation and two present determinations. Thus, according to para 5(b), pursuant to s 7C(1)(d) and (3) of the Act, “the Board … determines that the investigation mentioned in Schedule 1 is a special investigation”. This purports to be a determination by the Board in writing that conforms exactly to s 7C(1)(d) and (3) of the Act. In our view, the Act does not require more.
The Full Court accepted that the purpose of the requirement that determinations made under s 7C must be “in writing” is that “there should be certainty as to what ‘the Board’ has determined”: at [26]. The Court continued:
Particular reasons why this is important are:
•that the existence of a special investigation (or operation) is the foundation that enlivens other powers given by the Act (such as the power to apply for and obtain a search warrant under s 22, as in the present case, and the power to conduct an examination under Div 2 of Pt II of the Act);
•that the determination has effect immediately after it is made (s 7C(6));
•that the Chair of the Board must, within three days beginning on the day of the making of the determination, give a copy of it to the Inter-Governmental Committee referred to in ss 8 to 9 of the Act (s 7C(5)); and
•that a copy of the determination must accompany a summons requiring a person to appear before an examiner and to give evidence and to produce documents or other things (s 28(2)).
All of these reasons are satisfied by the adopted Instrument.
(Emphasis added.)
In my view, the decision in CC Pty Ltd (FC) establishes that an instrument that is the subject of a resolution by the Board can be a determination made in writing for the purposes of s 7C(2) or (3), independently of the minutes of the meeting of the Board at which such a resolution was passed or any certificate or endorsement signed by the Chair of the Board. The Court characterised the appellants’ complaint about the absence of any writing to establish a link between the Board’s decision and the adopted instrument as “really a complaint that the document, standing alone, does not provide the best evidence that the Board had acted”: at [28]. In that regard, the Court said:
It is true that the Board might have adopted a procedure that resulted in more cogent evidence that the Board’s determination was in the adopted Instrument. For example, the draft Instrument might have been marked in a distinctive way and the resolution might have said something like “That the Board make the determinations recorded in the document marked …”. While such better evidence is no doubt desirable, the fact is that the Act does not say anything akin to “in a document signed by or on behalf of the Board”: it requires nothing more or less than that the determination be “in writing”, a requirement that was satisfied in the present case.
The decision in CC Pty Ltd (FC) provides no support for the argument that it is essential to the validity of a determination that it must contain an express statement of the time and date on which it is made. On the contrary, the Full Court said (at [29]–[30]):
The absence of a date within the adopted Instrument is not fatal. Section 7C(6) of the Act provides that a determination under subs (2) or subs (3) has effect immediately after the determination is made. The statutory provision is reflected in para 2 of the Instrument (set out in [8] above). In the present case, the provision and the paragraph mean immediately after the draft Instrument was converted by Resolution 5 into the adopted Instrument. If the Chair’s endorsed certification had been correct rather than incorrect, a reader would have rightly understood that the present tense verb “determines” in para 5(b) of the adopted Instrument spoke as of 13 May 2003.
The absence of a date of making does not go to the question whether the determination was “in writing”. The lack of a date would not have been overcome even if all members of the Board had signed the document, yet in that case it could hardly be suggested that the Board did not “determine in writing”.
Under subsequent amendments made to the ACC Act by the Australian Crime Commission Amendment (Special Operations and Special Investigations) Act 2019 (Cth) (2019 Amendment Act), former s 7C(6) was repealed and replaced with s 7C(4G), which deals in more detail with the period during which a determination under s 7C(2) or (3) is in force. In addition to providing for such a determination to take effect immediately after it is made, s 7C(4G) now also provides that the period for which a determination ends after three years if it is not earlier revoked. In my view, however, nothing in the 2019 amendments renders inapplicable the conclusion reached by the Full Court in CC Pty Ltd (FC) that the absence of a date within a determination is not fatal to its validity.
The decisions in CC Pty Ltd and CC Pty Ltd (FC) were referred to with apparent approval by Jagot J in SS v Australian Crime Commission (2009) 224 FCR 439 at [31] (SS v ACC). Although some observations made in SS v ACC might arguably suggest that the Board’s determination was made “upon being signed and dated by the Chair of the Board” (see at [25], [30]), the decision is nevertheless consistent with the conclusion reached in CC Pty Ltd (FC) that the draft instrument became the Board’s determination in writing on the passing of the vote to adopt the instrument as its determination. Thus, the determination that was signed and dated by the Chair, with a time and date identical to that referred to in the minutes of the relevant Board meeting, was treated as “cogent evidence of the Board’s decision”, rather than as essential to the valid exercise by the Board of the power conferred by s 7C of the ACC Act: see at [25], [33].
Similarly, in AA v Board of the Australian Crime Commission [2010] FCA 553, Foster J upheld the validity of a determination made under s 7C(1)(d) and (3) notwithstanding that the instrument misdescribed the date and time when the Board’s resolution to make the determination was passed. The relevant resolution had been made outside of a Board meeting in accordance with s 7J of the ACC Act. The Court held that the resolution had not been passed until 1 May 2009, when the requisite number of votes were conveyed to and acknowledged by the Chair. Although the instrument that was signed by the Chair on 1 May 2009 stated that it was made by the Board by resolution at 4.13 pm on 30 April 2009, Foster J held that the determination was valid and the misdescription of the time at which the resolutions had been passed by the Board “does not matter”: at [163].
As the respondent submitted, s 7C of the ACC Act does not expressly require a written determination under subss (2) or (3) to contain a statement of the date or time at which it was made by the Board. The applicant ultimately seeks to imply such a requirement from the proposition that it is relevant to ascertaining the limits of the special ACC operation/investigation and the examination powers conferred by Div 2 of Pt II of the ACC Act. However, there is no general principle under which a determination must be required to disclose on its face every fact, matter or thing that might be relevant to its validity or to the extent or duration of the powers to which it gives rise. Section 7C is not prescriptive or exhaustive as to the particular form or content of a determination made under s 7C(2) or (3): cf. Z v ACC at [46] (Reeves J), referring to P v ACC at [34] (Mansfield, Dowsett and Lander JJ).
The Board has some discretion under s 7C(4) as to the level of generality at which the federally relevant crime is identified and under s 7C(4C) as to the extent to which the determination sets out the purposes of the intelligence operation or investigation. The determination is not required to specify any particular offences, nor any particular conduct, transaction or person to which the investigation or operation relates: s 7C(4CA)(a) and (b). Further, the determination is not required to specify any timeframe within which any federally relevant crime may have been, may be being, or may in future be, committed, nor any timeframe within which the investigation or operation must commence or be completed: s 7C(4CA)(c). Neither the terms nor the context of s 7C of the ACC Act provides any support for an implication that a determination in writing made by the Board under s 7C(2) or (3) must state or disclose on its face the date on which or the time at which it was made as a condition of the valid exercise of power conferred by that section.
Accordingly, the Determination is not invalid on the ground that it does not expressly state the time or date that it was made by the Board. Ground 5 must be rejected.
Does the Determination fail to identify the scope and limits of the special ACC operation to which it relates (Grounds 6 and 8)?
Each of Grounds 6 and 8 rests on a contention that the Determination fails properly or adequately to identify the scope or limits of the special ACC operation that it authorises, and the federally relevant crime to which it relates.
As a consequence, the applicant submits that the Board could not reasonably have been satisfied that it was in the public interest to authorise the special ACC operation to occur, so that the condition in s 7(4A) of the ACC Act on the exercise of the power to make a determination under s 7C(2) was not satisfied.
Further, the applicant submits that it is impossible for an examiner, an examinee or a court to ascertain the limits of the examiner’s power to conduct an examination for the purposes of the special ACC operation purportedly authorised by the Determination (see s 24A), or to determine whether it is reasonable in all the circumstances to issue a summons (see s 28(1)).
The applicant submitted that the definition of “Specified Financial Offence” covers an “omnibus” of primary offences and related offences listed in Schedule 1 of the Determination, which are of “considerable breadth and disparity”, particularly given the number of permutations or combinations of offences related to each of the primary offences. The classes of offences are further expanded by item (24) of Schedule 1, which covers offences against State laws “of the same or a similar kind to those identified” in the other items and which have a “federal aspect”, extending to ancillary offences. In conjunction with the broad list of offences, the applicant pointed to the width of the purposes of the intelligence operation set out in cl 5 of the Determination.
The applicant argued that the Determination “purports to authorise an amorphous intelligence operation into what is in truth undefined categories of ‘federally relevant crime’”, the limits of which are impossible to define. Accordingly, the applicant submitted:
The effect of the Determination is to authorise and implement an intelligence operation into any, unspecified, entity; into conduct past, present and future; into what comprises an incredibly broad and disparate range of Commonwealth offences; into an even broader and disparate range of (unstated) State offences which need only have a “federal aspect”; and for the purposes of what will, in practice, be distinct “investigations” into matters which are unconnected.
The respondent submitted that a determination under s 7C(2) is not required to “identify and delineate the limitations of the intelligence operation”, nor to identify all of the federally relevant crimes to which it relates, and that no such constraints can be implied into the power conferred by s 7C(2). Rather, the Board can make a determination if it considers that it is in the public interest to authorise an intelligence operation to occur, and may identify the purposes of the operation to the extent that it reasonably considers appropriate and the federally relevant crime to which the determination relates at whatever level of generality it considers appropriate: s 7C(4), (4A), (4C). The respondent submitted that these provisions of the ACC Act “are cast in very wide and expressly permissive terms”.
A special ACC operation established by a determination made under s 7C(2) of the ACC Act will often be broad in scope. The definition of “intelligence operation” is framed by reference to the purposes of the operation, which must be “primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to a federally relevant crime”. For such purposes, a “federally relevant crime” encompasses past, present or possible future Commonwealth or Territory offences that meet the definition of either “serious and organised crime” or “Indigenous violence or child abuse”.
There is nothing in the language of s 7C of the ACC Act or the associated definitions that requires a determination made under s 7C(2) to specify the “limits” of the special ACC operation. The Board has some flexibility under s 7(4C) as to the manner in which and the extent to which the purposes of the intelligence operation are expressed, albeit subject to an objective constraint — “to the extent that the Board reasonably considers appropriate” (emphasis added). The Board also has discretion as to the level of generality at which the federally relevant crimes are identified in a determination, whether by reference to specific allegations or categories of federally relevant crimes or by reference to specific offenders or categories of suspected offenders: s 7C(4).
That is not to suggest that the Board’s power to make a determination authorising an intelligence operation to occur is unlimited, or can be exercised to authorise an all-encompassing intelligence operation into all or any federally relevant crimes whenever committed or to be committed, seeking to replicate or implement the statutory power to its full extent. The applicant sought to describe such a possibility in oral submissions as having “one determination to rule them all”. However, the Determination in the present case cannot properly be characterised as meeting such a description.
The Determination authorises an intelligence operation to occur relating to “Specified Financial Offences”. This is reflected in the name of the instrument, which refers to “Serious Financial Crime”. The concept of Specified Financial Offences is defined in cl 3.2 which, while it picks up most of the elements of the statutory definition of “serious and organised crime”, is confined to the particular classes of offences that are listed in Schedule 1. While that list of offences is broad, it is by no means close to the full extent of the “relevant crimes” that may potentially be made the subject of a special ACC operation/investigation.
Nevertheless, the applicant contended that ss 24A, 25A and 28 of the ACC Act, in at least some of their operations, are not properly characterised as laws with respect to a head of Commonwealth legislative power. The principles governing the determination of that question are settled, and have been considered and applied in innumerable cases. For a general statement of the principles, it suffices to refer to the observations of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at [16] (citations omitted):
The general principles which are to be applied to determine whether a law is with respect to a head of legislative power such as s 51(xviii) are well settled. They include the following. First, the constitutional text is to be construed “with all the generality which the words used admit”. Secondly, the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. Thirdly, the practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power. Fourthly, as Mason and Deane JJ explained in Re F; Ex parte F [(1986) 161 CLR 376 at 388]:
“In a case where a law fairly answers the description of being a law with respect to two subject-matters, one of which is and the other of which is not a subject-matter appearing in s 51, it will be valid notwithstanding that there is no independent connection between the two subject-matters.”
Finally, if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice.
The connection between a law and a head of legislative power must be more than “insubstantial, tenuous or distant”: see Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 79 (Dixon J). The applicant contends that, in at least of some of their applications, the relevant provisions in Div 2 of Pt II of the ACC Act have no more than a remote and tenuous connection with any head of Commonwealth legislative power. In essence, the applicant’s argument focuses on what is described as “the cumulative effect of the series of connecting factors upon which the concept of ‘federally relevant crime’ relies, and the yet further connecting factors in the operative provisions of the [ACC Act]”. Those “connecting factors” include:
(a)the application of the provisions to relevant crimes “that may have been, may be being, or may in future be, committed”, meaning that a relevant crime might not be based on any actual or existing state of affairs;
(b)the extension of “federally relevant crime” to circumstances in which a State offence has a “federal aspect”, including where the State offence is an ancillary offence irrespective of whether the Commonwealth Parliament could have enacted the law creating the ancillary offence (cf. the primary offence) (see s 4A(2)(b)), or circumstances where a State offence affects the interests of a constitutional corporation even if that is not an element of the offence (see s 4A(4)(a)(iii)); and
(c)the fact that a special ACC operation can extend to investigations “relating to” a federally relevant crime, and a witness can be examined on any matter that the examiner considers relevant to the special ACC operation/investigation.
The applicant submits that the combined effect of these “relational” phrases or concepts extends the scope of examinable matters such that the examination is “without any real limits at all”. The fact that the examiner can determine whether a matter is relevant to the special ACC operation/investigation is, in the applicant’s submission, to make the connection to a head of power depend on the opinion of an officer of the executive, contrary to the principle in Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 258 (Fullagar J).
It may be observed in passing that there does not appear to be any suggestion that the “combined effect” of the matters set out above is raised on the particular facts of the present case.
The respondent submitted that ss 24A, 25A and 28 of the ACC Act are valid in all of their operations, such that there is no question of severance, reading down, or disapplication of the provisions. The respondent argued that the connection to a head or heads of Commonwealth legislative power is supplied by the definition of “federally relevant crime”, and is not broken by any of the “relational” phrases or concepts on which the applicant relies. The respondent submits that the constitutional validity of the provisions is supported in their application to Commonwealth offences by the decision of Wigney J in XCIV at [140], and in their application to State offences with a federal aspect by the decision of the Full Court in S v Australian Crime Commission (2006) 149 FCR 361 (S v ACC) at [8] (Ryan J), [50] (Emmett J); see also the decision of Mansfield J at first instance in S v Australian Crime Commission (2005) 144 FCR 431 at [23]–[24].
I accept the respondent’s submissions.
In XCIV, Wigney J rejected a constitutional point raised by the applicant in that case, which his Honour described (at [140]) as “elusive if not illusory”. Justice Wigney stated at [140]:
No constitutional challenge is made to the definition of “federally relevant criminal activity” which is the lynchpin of both the s 7C determination power and the s 28 summons power. That is not surprising. The first limb of the definition, which involves Commonwealth offences, is plainly constitutionally valid. It is “supported by as many heads of power as from time to time have been exercised by the Parliament to create offences against Commonwealth laws”: R v Hughes (2000) 202 CLR 535 at [40]. The constitutional validity of the second limb, which relates to State offences with a “federal aspect”, was also confirmed in S v Australian Crime Commission (2006) 149 FCR 361.
The argument advanced by the applicant in XCIV was that the determination in that case was ultra vires because it was not confined to federally relevant criminal activity. That argument did not “even get to first base”, because the determination was construed as being restricted or limited to the investigation of federally relevant criminal activity, so that “no question of s 7C authorising special investigations into matters not limited to federally relevant criminal activity” arose in the circumstances of that case: at [142].
As Wigney J noted in XCIV, the constitutional validity of the application of the ACC Act in relation to State offences with a “federal aspect” as defined in s 4A was upheld in S v ACC. In the wake of the High Court’s decision in R v Hughes(2000) 202 CLR 535, which called into question the validity of the conferral of powers on Commonwealth officers by or under State laws, it was confirmed in S v ACC that the Commonwealth could itself confer functions and powers and impose duties on Commonwealth officers where this was supported by federal legislative power.
Accordingly, Ryan J relevantly concluded at [8]:
[I]t cannot be suggested in the present case that it is beyond the legislative power of the Commonwealth to authorise a body like the ACC to investigate a serious and organised crime which is an offence against a law of a State and which has a “federal aspect” as defined. It follows that the only remaining ground for an attack on the grant of power on the ACC is that it is embodied in the ACC Act itself and is not conferred by an antecedently existing law of the Commonwealth. For the reasons explained by Emmett J, the empowering Act itself can supply the supporting law of the Commonwealth mandated by the passage at [31] of the joint judgment in Hughes.
(Emphasis in original.)
Justice Emmett stated at [40]–[41]:
The Commonwealth has no general legislative power in relation to criminal law. Nevertheless, it can create criminal offences in the areas of its enumerated legislative powers, where the creation of the criminal offence is sufficiently connected to a legislative power.
The provisions of the Act that empower the Commission to investigate offences are supported by as many heads of power as are applicable in the particular circumstances in which the coercive powers are exercised.
The relevant heads of power in relation to the determinations include, but are not necessarily limited to:
•customs offences, based on s 51(i) of the Constitution of the Commonwealth;
•tax avoidance offences, based on s 51(ii);
•corporations law offences, based on s 51(xx);
•money laundering offences, based on s 51(v), (xii) and (xiii); and
•counterfeiting, based on s 51(xii).
In addition, general criminal offences can be based on s 51(xxix) if committed outside Australia, or s 52(i) if committed in a Commonwealth place or s 122 if committed in a Territory.
His Honour went on to consider the question whether the Commonwealth can legislate to empower the ACIC to investigate a matter in respect of which the Commonwealth has the constitutional power to legislate but has not in fact legislated. After considering the legislative history of the criteria according to which a State offence can have a federal aspect, Emmett J concluded at [49]–[50]:
It is clear that a State cannot unilaterally invest in an officer of the Commonwealth functions under a law made by the State. That is to say, the investing of functions in a Commonwealth officer requires the authorisation or support of a law of the Commonwealth. Further, an investing State law can confer no wider power on a Commonwealth officer than that conferred by a supporting Commonwealth law (see Hughes at [31]). However, there is nothing in any of those propositions that requires the conferral of power by a supporting Commonwealth law to be made by some other existing or antecedent Commonwealth law.
The [ACC Act] itself is the “law of the Commonwealth” that the extract from Hughes mandates as necessary for a valid conferral on the Commission of coercive investigative powers. The [ACC Act] is itself an operative law of the Commonwealth that authorises the Commission to investigate matters in respect of which the Commonwealth has power to legislate. That is sufficient to satisfy the requirement that there be an operative law of the Commonwealth to support the exercise of power by the Commission.
In other words, just as the Commonwealth Parliament can create criminal offences in the areas of its enumerated legislative powers, it can authorise Commonwealth officers to gather intelligence and to investigate possible offences against Commonwealth laws, as well as offences against State laws that would have a sufficient connection to a subject matter within Commonwealth legislative power if enacted as a law of the Commonwealth. The laws authorising the intelligence operation or investigation in relation to such offences will have a sufficient connection to the heads of legislative power that support, or that would support, the enactment of the offences, if not also the incidental power in s 51(xxxix) read with s 61 of the Constitution.
On the facts of the present case, the State offences covered by the Determination are only those “of the same or a similar kind” to the offences identified in items (1) to (23) of Schedule 1, where they have a “federal aspect” within the meaning of s 4A of the ACC Act.
The fact that a special ACC operation/investigation can encompass possible future crimes (that is, crimes that may in future be committed) does not deny the connection of s 7C(2) or (3) with the relevant head or heads of legislative power that support laws dealing with federally relevant crimes. In particular, it is of the nature of an intelligence operation that it may involve the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant crimes that might be committed in the future, as well as such crimes that may already have been committed or may be in the course of being committed.
As discussed above, the inclusion within the definition of “federally relevant crime” of State offences with a federal aspect has previously been upheld as constitutionally valid. The hypothetical examples raised by the applicant’s submissions as to the reach of s 4A of the ACC Act to State offences that are ancillary offences or State offences affecting the interests of constitutional corporations do not appear to arise directly on the facts of the present case, whether from the Determination or the Summons. More importantly, those examples do not demonstrate the constitutional invalidity of s 4A, let alone ss 24A, 25A or 28 of the ACC Act, particularly in the light of s 15A of the Acts Interpretation Act 1901 (Cth) and general principles as to reading down and severance of legislative provisions to the extent of any invalidity. Further, such questions may be properly addressed in the context of the application of the provisions to concrete facts and circumstances. As Mansfield J noted at first instance in S v Australian Crime Commission (2005) 144 FCR 431 at [28]:
There may be difficulties in knowing whether a particular determination of the Board is a valid one, because the scope of Commonwealth power to show the federal aspect in relation to that determination may not have been definitively determined by the High Court. But, in my view, s 4A is not invalid because, in some circumstances, the extent of its reach may be debatable. It sets out in terms which are clear, and in terms which fall within the power of the Commonwealth, when a State offence has a federal aspect. The fact that, in some circumstances, a person summonsed under s 28 may dispute that, or may have difficulty in determining whether, a question during an examination is authorised by a valid determination by the Board, or by the summons, does not lead to the conclusion that s 4A of the ACC Act is itself beyond power.
While a special ACC operation/investigation can cover gathering criminal information and intelligence or undertaking investigations “relating to” a federally relevant crime, there is no reason to construe that term as exceeding the limits of constitutional power. Phrases such as “relating to” are commonly employed in statutory drafting to indicate a relationship between two different matters, and the degree of connection required can vary depending on the context: see Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510 at [25] (French CJ and Hayne J), [90] (Crennan and Bell JJ); Minister for Home Affairs v DLZ18 (2020) 270 CLR 372 at [43] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). In the present context, it is possible to adopt a construction of the term “relating to” that reflects the connection necessary to establish that the laws are “with respect to” a head or heads of Commonwealth legislative power capable of supporting the enactment of offences constituting a federally relevant crime, thereby ensuring that an intelligence operation or investigation remains within constitutional limits: compare Spence v Queensland (2019) 268 CLR 355 at [70] (Kiefel CJ, Bell, Gageler and Keane JJ).
The power to examine or cross-examine a witness at an examination on any matter that the examiner considers relevant to the special ACC operation/investigation does not untether the provisions from the purposes of the intelligence operation or investigation, nor does it sever their connection to a head of Commonwealth legislative power. Nor does the examiner’s power under s 28(3) of the ACC Act to question an examinee in relation to any matter that relates to a special ACC operation/examination, whether or not it falls within the description in the summons of the general nature of the matters in relation to which the person is to be questioned. In determining whether any particular line of questioning is relevant to or relates to an operation or investigation, the examiner must form his opinion reasonably and on a correct understanding of the law: see e.g. Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [33] (Gageler and Keane JJ); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]–[137] (Gummow J). The examiner is not at large to question an examinee, or to permit his or her examination or cross-examination, in relation to matters that have no possible relationship to the special ACC operation/examination. Ultimately, the powers to conduct an examination and to summon a person to appear at an examination are limited by the purposes of a special ACC operation/investigation: s 24A(1), 28(7).
Accordingly, Ground 10 (together with Ground 3) must be dismissed.
Validity of the Summons
The applicant identified the following issues as being raised by the grounds that challenge the validity of the Summons.
(a)Does the Summons fail to comply with s 28(3) of the ACC Act, because it fails to set out, so far as is reasonably practicable, the general nature of matters in relation to which the person is to be questioned (Ground 1)?
(b)Was the Summons invalid because the Determination was not a valid determination under s 7C(2) of the Act (Ground 2)?
(c)Did the Summons fail to disclose the type of examination to which it relates (Ground 4)?
Does the Summons comply with s 28(3) (Ground 1)?
As discussed above, the Summons identifies the general nature of the matters in relation to which the applicant is to be questioned as follows:
(a)dealing with money and other property (including digital currency, electronic funds, cash and luxury assets) that is proceeds or instruments of crime, especially of importations into Australia and trafficking in Australia of border-controlled drugs (including cocaine, methylamphetamine and MDMA);
(b)the use of encrypted communication devices and messaging applications to facilitate such activities; and
(c)the identities of other persons and entities (in Australia and overseas) involved in such activities, particularly the ’Ndrangheta, and the nature and extent of their involvement.
Ground 1 of the originating application alleges that “the Summons does not draw together in a cogent or comprehensible way how the three areas of interest that the examination will deal with are said to relate to Specified Financial Offences, such offences being the focus of the Determination, making it impossible for any limit or boundary to be ascertained in respect of the proposed examination”. The applicant contends that the three areas of interest are of “remarkable breadth” and “bear little or no relationship to the Determination or the scope of the special ACC operation”.
The applicant submits that s 28(3) of the ACC Act is the mechanism by which an examinee is able to understand what he or she is to be examined about, including the limits or boundaries of the proposed examination and whether he or she is required to answer questions. Taken in conjunction with the breadth of the Determination, the applicant contends that the Summons does not enable him to understand the nature and subject matter of the examination, nor does it enable the scope or limits of the examiner’s power to be ascertained. The applicant submits that s 28(3) of the ACC Act requires the matters to be identified at a greater level of specificity than that set out in the Summons, such as by setting out “known, alleged or suspected conduct (or classes of conduct) in a form that engages with the Determination and the Applicant’s circumstances and in particular with the definition of ‘Specified Financial Offences’”, or the identities of persons by whom or in connection with whom conduct is known, alleged or suspected to have been committed involving the applicant, or the general circumstances of known, alleged or suspected conduct involving or amounting to offences referred to in the definition of “Specified Financial Offences”. In so far as information regarding the applicant’s connection with alleged or suspected offences was contained in the Application, the applicant argues that it must have been reasonably practicable to include that information in the Summons in setting out the general nature of the matters in relation to which the applicant is to be questioned.
The requirements in s 28(3) of the ACC Act have been described as serving “natural justice purposes”, at least in some degree, in that they “serve in a general way to inform a witness of the general nature of the investigation being undertaken and, though not exhaustively, of what that witness might expect by way of questioning”: P v Australian Crime Commission [2005] FCA 55 at [16] (Finn J). Nevertheless, the requirements are qualified in order to avoid the possible frustration of an investigation “by compulsory disclosure to a witness of the topics or matters upon which questioning is intended, where such disclosure might affect the efficacy of the proposed examination”: S v Australian Crime Commission (2005) 144 FCR 431 at [36] (Mansfield J). Accordingly, the extent to which a witness is notified in advance of the matters on which questions should be anticipated is prescribed by s 28(3) “having regard to the respective interests of the witness and of the effective conduct of the special ACC investigation of which the examination is a part”: S v Australian Crime Commission (2005) 144 FCR 431 at [37] (Mansfield J).
The requirement under s 28(3) is therefore limited to the “general nature” of the matters in relation to which the person is to be questioned. This requirement is further qualified by reasonable practicability, and subject to an exception where the examiner is satisfied that setting out the general nature of the matters would prejudice the effectiveness of the special ACC operation/investigation.
In XCIV, Wigney J upheld the validity of a summons that relevantly described the matters about which the witness would be questioned as giving evidence of or about serious drug offences contrary to Pt 9.1 of the Criminal Code. While Wigney J accepted that this was a very general statement of the matters about which the applicant would be questioned, he held that there was no basis for concluding that s 28(3) required anything more: XCIV at [83]. In particular, Wigney J did not accept that a summons issued under s 28 of the ACC Act was analogous to a search warrant, which is required to define the scope of the search and seizure that is authorised by the warrant, noting that what is stated in a summons issued under s 28 does not confine the scope of the questioning at an examination: XCIV at [85].
As Charlesworth J noted in XXVII at [73], s 28(3) of the ACC Act does not require an examiner to give the most precise description of the subject matter of the examination as can be done without prejudicing the effectiveness of the special ACC operation/investigation. Rather, the requirement is to set out the general nature of the matters in relation to which the recipient of the summons is to be questioned, unless it would prejudice the effectiveness of the special ACC operation/investigation to do so. In other words, “[a] general description of the matters is the maximum that the ACC Act requires, not the minimum”, and “it is not to the point that the Examiner could have given a more detailed and elaborate description”: XXVII at [73] (Charlesworth J). There may also be a question whether compliance with the requirement in s 28(3) is essential to validity, in the light of the fact that the description set out in the summons does not limit the questions that may be asked in an examination.
As the applicant submitted, the decisions in XCIV and XXVII can be distinguished from the present case, in so far as the respondent did not here form a view that it would prejudice the effectiveness of the special ACC operation/investigation for the summons to set out the general nature of the matters in relation to which applicant is to be questioned. Accordingly, the exception in s 28(3) was not attracted. The sole question is whether the Summons sets out the general nature of the relevant matters so far as is reasonably practicable.
The Summons sets out in general terms the criminal conduct about which the applicant may be questioned, namely dealing with proceeds of crime, including the importation and trafficking of border-controlled drugs. In addition, the Summons identifies that the applicant may be questioned about the use of encrypted communication devices and messaging applications to facilitate such activities, and the involvement of persons and entities involved in such activities. The applicant complains that the Summons does not articulate the nature of his connection with such matters, and does not specify the persons or entities who are alleged or suspected to have engaged in activities falling within the definition of Specified Financial Crime and with whom the applicant is alleged or suspected to have connections. However, in order to set out the general nature of the relevant matters in relation to which the applicant is to be questioned, it is not necessary to specify the nature or basis of the applicant’s connection to those matters nor to name or identify any particular persons who might be involved.
I do not consider that the matters set out in the Summons are disconnected from the Specified Financial Offences that are within the special ACC operation authorised by the Determination, or the purposes of that operation set out in cl 5 of the Determination. The offences listed in Schedule 1 of the Determination include dealing in proceeds or instruments of crime (Div 400 of the Criminal Code) and importing or trafficking controlled drugs (Divs 302 and 307 of the Criminal Code). Such offences were identified in the Application for the Summons, and are capable of satisfying the definition of “serious and organised crime” in s 4 of the ACC Act and the associated definition of “Specified Financial Offences” in cl 3.2 of the Determination, a copy of which accompanied the Summons in accordance with s 28(2) of the ACC Act. Further, the matters set out in paragraph 5 of the Summons are aligned with the purposes of the special ACC operation as identified in cl 5 of the Determination, including the methods and techniques used in the commission of Specified Financial Offences, the persons and entities involved in the commission of Specified Financial Offences, and the relationships between those persons and entities.
To support his contention that the Summons failed to set out the general nature of the matters in relation to which he is to be questioned, the applicant relied on information that had been included in the Application, in so far as it was not the subject of any public interest immunity claim, arguing that this demonstrated that it was reasonably practicable for such information to be set out in the Summons. This argument misstates the relevant question, which is not whether it was reasonably practicable to include the information, but whether it was necessary to include such information in order to set out the “general nature” of the matters in relation to which the applicant is to be questioned.
The Application descended into further detail as to the specific evidence that it is believed the applicant can provide that is relevant to the special ACC operation authorised by the Determination. The Application nevertheless distinguished (at [76]) between the specific evidence the applicant is likely to give, and the general nature of the matters in relation to which he will be questioned. It is apparent that the latter drew upon the former. The fact that the Application contained more specific or extensive information does not of itself establish that such information was essential to convey the general nature of the matters that are the subject of the examination in compliance with s 28(3) of the ACC Act.
In my view, the general nature of the offences referred to in paragraph [11] of the SOFAC is captured by the description of the matters set out in paragraph 5 of the Summons. The applicant’s submissions placed particular emphasis on a statement contained in paragraph [65] of the SOFAC that the applicant “is to be questioned on his practices, specifically engaging other SOCs to conduct illicit activities on behalf of himself and the [redacted]”. The applicant contended that this allegation is different in nature, and not just in detail, from the statement in the Summons that the applicant is to be questioned about the involvement of persons and entities in the relevant criminal activities. The applicant characterised the statement in paragraph [65] of the SOFAC as raising a “serious allegation” of agency, in that the applicant did not simply have knowledge of the involvement of other persons or entities but that he had himself engaged such persons or entities to conduct illicit activities on his behalf. The applicant submitted that there was a “disconnect” between such an allegation and the statement in the Summons of the general matters about which the applicant is to be questioned.
In my view, this submission is without merit. Any questions about the applicant’s engagement of other persons to conduct illicit activities falls within the general nature of identifying persons and entities involved in dealing with proceeds of crime, including from the importation and trafficking of controlled drugs, and the nature and extent of their involvement. Paragraphs [61]–[67] of the Application (which were subject to redactions) contained details of the specific evidence that was sought from the applicant and its relevance to the special ACC operation, including his connection with the ’Ndrangheta and its reputed involvement in money laundering and remitting the proceeds of drug importations and domestic trafficking. In order to comply with s 28(3), the Summons was not required to set out specific allegations against the applicant, nor to include all of the information contained in the Application that was before the examiner for the purposes of deciding whether it was reasonable in all the circumstances to issue the Summons under s 28(1) of the ACC Act.
For these reasons, I find that the Summons complied with s 28(3) of the ACC Act, and reject Ground 1 of the originating application.
Was the Summons issued for the purpose of an invalid determination (Ground 2)?
I accept for present purposes that the validity of the Summons rests on the validity of the Determination: see e.g. XCIV at [88] (Wigney J). However, for the reasons set out above, the Determination was not invalid. Accordingly, this ground of challenge to the Summons fails.
Proposed new Ground 2a
The applicant requires leave to amend the originating application to add proposed Ground 2a. The respondent opposes the grant of leave to amend, including on the ground that the proposed ground lacks any merit.
By this proposed ground of review, the applicant alleges that the respondent could not reasonably have been satisfied that issuing the Summons was reasonable in all the circumstances for the purposes of s 28(1) of the ACC Act, in circumstances where the Determination failed to identify the scope and limits of the special ACC operation or the federally relevant crime to which it relates.
The proposed new ground is closely related to Grounds 6 and 8, in so far as it is premised on a contention that the breadth of the Determination is such as to prevent an examiner from ascertaining the scope or limits of the special ACC operation. For the reasons set out above, I have rejected that underlying premise.
While there are substantial redactions in the respondent’s statement of reasons for his decision to issue the Summons, it is clear that the respondent was satisfied that it was reasonable to suspect that the applicant was able to give evidence in relation to Specified Financial Offences amounting to federally relevant crime within the scope of the special ACC operation authorised by the Determination, so as to advance the purposes of that intelligence operation. This includes evidence about the involvement of the ’Ndrangheta in money laundering and drug trafficking.
The proposed ground faces the same “hurdles” that were identified by Wigney J in XCIV at [69] and by Charlesworth J in XXVII at [66]–[71]. There is nothing to cast any doubt on or otherwise to impugn the respondent’s statement of satisfaction that it was reasonable in all the circumstances to issue the Summons.
I therefore refuse leave to amend the originating application on the basis that proposed Ground 2a has insufficient prospects of success. Even if leave to amend were to be granted, Ground 2a would be dismissed.
Does the Summons fail to disclose the type of examination to which it relates (Ground 4)?
The respondent proceeded on the basis that the Summons was a pre-charge and pre-confiscation application examination: statement of reasons at [2](xxi); see also the SOFAC at [68]–[69].
Accordingly, it was not necessary for the respondent to form the state of satisfaction in s 28(1)(d) of the ACC Act, namely that issuing the summons was reasonably necessary for the purposes of the special ACC operation even though the recipient of the summons had been or was imminently to be charged, or a confiscation proceeding had been commenced or was imminent.
The applicant nevertheless submits that the Summons was required to disclose on its face whether it was a pre-charge or post-charge summons or a pre-confiscation application or post-confiscation application summons. The applicant argues that the issue of a post-charge summons or a post-confiscation application summons “fundamentally alters the accusatorial judicial process” (see X7 v Australian Crime Commission (2013) 248 CLR 92 at [124] (Hayne and Bell JJ)) and involves a greater abrogation of fundamental common law rights and privileges. In such circumstances, it is necessary that an examinee be appraised of the type of summons in order to understand the nature of the compulsory process and to ascertain compliance with the requirements of s 28(1) of the ACC Act.
A similar argument was considered by Charlesworth J in XXVII, namely that s 24A(1) or (2) of the ACC Act implicitly require a summons issued under s 28(1) to contain an express statement as to whether or not it is a post-charge summons: see at [45]-[59]. Justice Charlesworth rejected this argument, concluding that neither s 24A nor s 28(1) contained an express requirement to that effect and that no such requirement could be implied. An appeal was dismissed by the Full Court, although it does not appear that this ground was agitated on the appeal: see XXVII (FC). While it is true that Charlesworth J also made a finding (at [60]) that the summons under consideration in that case had in fact identified itself as a post-charge summons, by expressly referring to the examiner’s satisfaction pursuant to s 28(1)(d) that it was reasonably necessary to issue the summons for the purposes of the investigation notwithstanding that the recipient had been charged with a relevant offence, it is clear that this was an alternative basis for decision. That finding on the particular facts in XXVII does not detract from the conclusion that the summons was not required to contain a statement that it was a post-charge summons in order for it to be valid.
I agree with the conclusion in XXVII that neither s 24A nor s 28(1) of the ACC Act require a summons to state on its face whether it is a pre-charge (or pre-confiscation application) or a post-charge (or post-confiscation application) summons. In practice, it is likely that the recipient of a summons will either know or be in a position to ascertain whether he or she has been charged with an offence or whether a confiscation proceeding has been commenced. In so far as a charge or confiscation proceeding is considered to be imminent, that fact might be ascertainable from the written record made by the examiner under s 28(1A) setting out the reasons for the issue of the summons, or perhaps from other sources of information.
The principal significance of the distinction between a pre-charge (or pre-confiscation application) summons and a post-charge (or post-confiscation application) summons is that, in relation to the latter, s 28(1)(d) requires the examiner to have regard to the pending or imminent charge or confiscation proceeding when issuing the summons. I note that s 28(9) deals with the severability of s 28(1)(d), presumably in the event of a successful challenge to the constitutional validity of post-charge or post-confiscation application examinations. In any event, even if there was an implied requirement that a summons issued under s 28(1) must disclose on its face that it is a post-charge or post-confiscation application summons, it is difficult to see why any such requirement would apply to a pre-charge or pre-confiscation application summons. Accordingly, on the facts in the present case, s 28(1) would not require the Summons to state that it was not a post-charge or post-confiscation application summons.
Ground 4 is therefore dismissed.
CONCLUSION
None of the grounds of the originating application are made out. The application must be dismissed with costs.
I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. Associate:
Dated: 14 March 2025
0
28
18