VII v Purcell

Case [2025] FCA 202

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…

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Details
AGLC
VII v Purcell [2025] FCA 202
Case
[2025] FCA 202
Decision Date

CaseChat Overview and Summary

In the matter of VII v Purcell, the applicant sought to challenge the validity of a determination made under the Australian Crime Commission Act 2002 (Cth). The determination, signed by the Chair of the Board on 12 December 2022, authorised an intelligence operation relating to "Specified Financial Offences." The applicant argued that the determination was invalid on various grounds, including that it did not specify the date and time it was made, failed to identify the scope and limits of the special ACC operation, and did not satisfy the public interest requirement. Additionally, the applicant contested the validity of a summons issued under the Act, claiming it did not adequately describe the nature of the matters in relation to which the person was to be questioned and failed to specify whether it was a pre-charge or post-charge summons.

The court was tasked with determining the validity of the determination and summons under the Act, as well as the constitutionality of specific sections of the Act. The key legal issues included whether the determination required a specific date and time, whether it properly identified the scope and limits of the operation, and whether the Board could reasonably be satisfied that authorising the intelligence operation was in the public interest. The court also had to consider whether the summons complied with the statutory requirements and whether the Board acted on an incorrect understanding of the law. Furthermore, the court examined the validity of sections 7C(2), 24A, 25A, and 28 of the Act, questioning whether these sections had sufficient rule-like content and whether they were consistent with the Constitution.

The court found that the determination was valid, as the Board could reasonably be satisfied that authorising the intelligence operation was in the public interest. The court determined that the determination did not need to specify the exact date and time it was made, and that the Board could reasonably identify the scope and limits of the operation. Additionally, the court held that the summons was valid as it complied with the statutory requirements and the examiner could reasonably be satisfied that issuing the summons was reasonable in all the circumstances. The court also found that sections 7C(2), 24A, 25A, and 28 of the Act were valid, as they had sufficient rule-like content and were consistent with the Constitution. Therefore, the application was dismissed, and the applicant was ordered to pay the costs of the first respondent.

Orders

Orders of the court

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.

Background

Background to the litigation

Accordingly, the application is dismissed.BACKGROUNDThe 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. Determination4.1The 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 operationThe 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ground 4 is therefore dismissed.CONCLUSION None of the grounds of the originating application are made out. The application must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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).