Western Australian Police Union of Workers v Anti-Corruption Commission
[1999] WASCA 227
•28 OCTOBER 1999
WESTERN AUSTRALIAN POLICE UNION OF WORKERS & ORS -v- ANTI-CORRUPTION COMMISSION & ANOR [1999] WASCA 227
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 227 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:150/1998 | 9 APRIL 1999 | |
| Coram: | KENNEDY J WALLWORK J WHITE J | 28/10/99 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | WESTERN AUSTRALIAN POLICE UNION OF WORKERS PAUL CHRISTOPHER FERGUSON ROBERT FRANCIS DUDLEY IBBOTSON MARIA CHERIE IBBOTSON PETER STONE ANTI-CORRUPTION COMMISSION GEORGE THOMAS WARREN TANNIN |
Catchwords: | Administrative law Anti-Corruption Commission Allegations of behaviour within terms of Anti-Corruption Commission Act 1988, s 13(1) Appointment of special investigator Whether notice to special investigator sufficiently specified allegations Severability of parts of notice |
Legislation: | Anti-Corruption Commission Act 1988, s 8(1), s 13(1) |
Case References: | AB v National Crime Authority (1998) 156 ALR 52, Bethel v Douglas [1995] 1 WLR 794 Credit Suisse v Allerdale Borough Council [1997] QB 306 Director of Public Prosecutions v Hutchinson [1990] 2 AC 783 Harrington v Lowe (1996) 190 CLR 311 Mannah v State Drug Crime Commission (1987) 13 NSWLR 43 Mannah v State Drug Crime Commission (1988) 13 NSWLR 43 McGuiness v Attorney General (Vic) (1940) 63 CLR 73 National Crime Authority v A1 (1997) 75 FCR 2 National Crime Authority v A1 (1997) 75 FCR 274 Perron Investments Pty Ltd v Deputy Commissioner of Taxation (WA) (1989) 90 ALR 1 Ratnagopal v Attorney General [1970] AC 974 ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31 Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 Boath v Wyvill (1989) 84 ALR 621 City of Unley v Claude Neon Ltd (1983) 32 SASR 329 Coco v The Queen (1994) 179 CLR 427 Crichton v City of Moorabbin [1992] 2 VR 372 Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 217 Halden v Marks [1996] 17 WAR 447 Howie v Hollobone (1973) 8 SASR 148 Ibbotson v Chaney, unreported; FCt SCt of WA; Library No 980370; 26 June 1998 Ibbotson v Chaney, unreported; SCt of WA (White J); Library No 980278; 22 May 1998 Jumbunna Coal Mine No Liability v Victoria Coal Mines Associations (1908) 6 CLR 309 Owners of SS Kalibia v Wilson (1910) 11 CLR 689 Peters v Attorney General for NSW (1988) 16 NSWLR 24 Premier Pacific Pharmaceutical Industries Ltd v Australian Stock Exchange Ltd (1995) 129 ALR 661 R v Commonwealth Court of Conciliation and Arbitration; ex parte Whybrow & Co (1910) 11 CLR 1 Re Section 41 of the Corporations Law; ex parte Bond Corporation Holdings Ltd (1991) 5 WAR 143 Selby v Pennings, unreported; FCt SCt of WA; Library No 980480; 26 August 1998 TCN Channel 9 v Australian Mutual Provident Fund (1982) 42 ALR 406 Varley v Spratt [1955] VLR 403 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WESTERN AUSTRALIAN POLICE UNION OF WORKERS & ORS -v- ANTI-CORRUPTION COMMISSION & ANOR [1999] WASCA 227 CORAM : KENNEDY J
- WALLWORK J
WHITE J
- First Appellant (First Plaintiff)
PAUL CHRISTOPHER FERGUSON
Second Appellant (Second Plaintiff)
ROBERT FRANCIS DUDLEY IBBOTSON
MARIA CHERIE IBBOTSON
Third Appellants (Third Plaintiffs)
PETER STONE
Fourth Appellant (Fourth Plaintiff)
AND
ANTI-CORRUPTION COMMISSION
First Respondent (First Defendant)
GEORGE THOMAS WARREN TANNIN
Second Respondent (Second Defendant)
(Page 2)
Catchwords:
Administrative law - Anti-Corruption Commission - Allegations of behaviour within terms of Anti-Corruption Commission Act 1988, s 13(1) - Appointment of special investigator - Whether notice to special investigator sufficiently specified allegations - Severability of parts of notice
Legislation:
Anti-Corruption Commission Act 1988, s 8(1), s 13(1)
Result:
Appeal dismissed
Representation:
Counsel:
First Appellant (First Plaintiff) : Mr M J McCusker QC & Mr L A Tsaknis
Second Appellant (Second Plaintiff) : Mr M J McCusker QC & Mr L A Tsaknis
Third Appellants (Third Plaintiffs) : Mr M J McCusker QC & Mr L A Tsaknis
Fourth Appellant (Fourth Plaintiff) : Mr M J McCusker QC & Mr L A Tsaknis
First Respondent (First Defendant) : Mr R M Mitchell
Second Respondent (Second Defendant) : Mr R M Mitchell
Solicitors:
First Appellant (First Plaintiff) : Quigley Coulson
Second Appellant (Second Plaintiff) : Quigley Coulson
Third Appellants (Third Plaintiffs) : Quigley Coulson
Fourth Appellant (Fourth Plaintiff) : Quigley Coulson
First Respondent (First Defendant) : State Crown Solicitor
Second Respondent (Second Defendant) : State Crown Solicitor
(Page 3)
Case(s) referred to in judgment(s):
AB v National Crime Authority (1998) 156 ALR 52,
Bethel v Douglas [1995] 1 WLR 794
Credit Suisse v Allerdale Borough Council [1997] QB 306
Director of Public Prosecutions v Hutchinson [1990] 2 AC 783
Harrington v Lowe (1996) 190 CLR 311
Mannah v State Drug Crime Commission (1987) 13 NSWLR 43
Mannah v State Drug Crime Commission (1988) 13 NSWLR 43
McGuiness v Attorney General (Vic) (1940) 63 CLR 73
National Crime Authority v A1 (1997) 75 FCR 2
National Crime Authority v A1 (1997) 75 FCR 274
Perron Investments Pty Ltd v Deputy Commissioner of Taxation (WA) (1989) 90 ALR 1
Ratnagopal v Attorney General [1970] AC 974
Case(s) also cited:
ACN 006 397 413 Pty Ltd v International Movie Group (Canada) Inc [1997] 2 VR 31
Bank of New South Wales v The Commonwealth (1948) 76 CLR 1
Boath v Wyvill (1989) 84 ALR 621
City of Unley v Claude Neon Ltd (1983) 32 SASR 329
Coco v The Queen (1994) 179 CLR 427
Crichton v City of Moorabbin [1992] 2 VR 372
Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 217
Halden v Marks [1996] 17 WAR 447
Howie v Hollobone (1973) 8 SASR 148
Ibbotson v Chaney, unreported; FCt SCt of WA; Library No 980370; 26 June 1998
Ibbotson v Chaney, unreported; SCt of WA (White J); Library No 980278; 22 May 1998
Jumbunna Coal Mine No Liability v Victoria Coal Mines Associations (1908) 6 CLR 309
Owners of SS Kalibia v Wilson (1910) 11 CLR 689
Peters v Attorney General for NSW (1988) 16 NSWLR 24
Premier Pacific Pharmaceutical Industries Ltd v Australian Stock Exchange Ltd (1995) 129 ALR 661
R v Commonwealth Court of Conciliation and Arbitration; ex parte Whybrow & Co (1910) 11 CLR 1
(Page 4)
Re Section 41 of the Corporations Law; ex parte Bond Corporation Holdings Ltd (1991) 5 WAR 143
Selby v Pennings, unreported; FCt SCt of WA; Library No 980480; 26 August 1998
TCN Channel 9 v Australian Mutual Provident Fund (1982) 42 ALR 406
Varley v Spratt [1955] VLR 403
(Page 5)
1 KENNEDY J: By an originating summons dated 18 June 1998, as amended, the appellants sought a declaration that a notice issued by the first respondent to the second respondent on 9 March 1998 which required the second respondent to investigate certain allegations is void and of no effect on the grounds that the notice and each clause in the notice -
"(a) fails to specify an "allegation" or "allegations" or "class of allegations" within the meaning of, and as required by sections 3(1), 8(1) and 13(1) of the Anti-Corruption Commission Act 1988 ("the Act");
(b) fails to identify a public officer or identify a person in respect of whom the allegation, allegations or class of allegations relates as required by sections 3(1), 8(1) and 13(1) of the Act; and/or
(c) fails to require the second [respondent] to investigate and report to the Commission on an allegation, allegations or class of allegations specified in the notice as required by section 8(1) of the Act."
2 On 13 September 1998, Murray J made a declaration that only one of the four substantive paragraphs of the notice requiring the second respondent to investigate the allegations is void and of no effect. His Honour held that this paragraph was severable from the remaining paragraphs of the notice, which accordingly were valid.
3 The appellants have appealed against the decision of Murray J on the following grounds:
"1. Having correctly held that paragraph 4 of the notice was invalid, his Honour should have held that the whole of the notice was therefore invalid; and his Honour erred in law in holding that the remainder of the notice could be severed from paragraph 4, so as to render the remainder valid.
2. Further, and in any event, the learned trial Judge erred in law in holding paragraphs 1, 2 and 3 of the notice were valid. His Honour should have held that each of those paragraphs was invalid because each paragraph:
(i) failed to specify an "allegation" or "allegations" or "class of allegations" within the meaning of
(Page 6)
- subsection 8(1) of the Anti-Corruption Commission Act 1988 ("the Act"); and/or
- (ii) failed to identify a public officer or identify a person in respect of whom the allegation, allegations or class of allegations were made as required by subsection 8(1) of the Act."
4 By a notice of contention, the respondents have sought to contend on the appeal that the decision of Murray J should be affirmed on grounds other than those relied upon by his Honour in that he ought to have held that pars 1 to 3 of the notice validly specified classes of allegations upon which the second respondent was validly appointed to investigate and report pursuant to s 8(1) of the Anti-Corruption Commission Act 1988 ("the Act").
5 No issue has been raised as to the actual appointment of the second respondent as a special investigator, and the terms of that appointment are not before us. The power of the Commission to appoint a special investigator is to be found in s 8 of the Act, which provides as follows:
"8(1) The Commission may appoint a person who is or has been a barrister or solicitor of the Supreme Court, or the Supreme Court of another State or Territory, of not less than 5 years' standing and practice to be a special investigator to investigate, and report to the Commission on, an allegation, or allegations or class of allegations, specified -
(a) in the instrument appointing the special investigator; or
(b) in a written notice given to the special investigator by the Commission.
(2) A special investigator shall perform his or her functions on such terms as the Commission and the special investigator agree.
(3) The terms referred to in subsection (2) may include terms as to the use by the special investigator of the services of officers of the Commission and seconded officers."
(Page 7)
6 It is not necessary for the instrument of appointment itself to specify the allegation, allegations or class of allegations which the special investigator is required to investigate and report upon to the Commission. In this instance, the Commission gave a written notice to the special investigator purporting to specify the allegations pursuant to s 8(1)(b) of the Act.
7 In order to appreciate the manner in which the Act operates, it is necessary to have regard to a number of its provisions. The long title to the Act describes it as "AN ACT to provide for an Anti-Corruption Commission to receive or initiate allegations of corruption, or of criminal or improper conduct of certain kinds, against police officers and other public officers and certain other people, to provide for the way in which such allegations are to be inquired into, investigated or otherwise dealt with, and for related purposes".
8 A number of the expressions to be found in the notice dated 9 March 1998 are defined in s 3(1) of the Act. Those definitions include the following:
" 'allegation' means an allegation referred to in section 13(1)(a), (b), (c) or (d)."
" 'corrupt conduct' means conduct referred to in section 13(1)(a)(i) or (ii)."
" 'criminal conduct' means conduct referred to in section 13(1)(a)(iii), (iv), (v) or (vi)."
" 'criminal involvement' means involvement referred to in section 13(1)(b)."
" 'serious improper conduct' means conduct referred to in section 13(1)(c)."
9 Section 13 provides as follows:
"13(1) Subject to subsection (3), the Commission shall -
(a) receive information furnished to it by any person who alleges that a public officer has -
(i) corruptly acted or corruptly failed to act in the performance of the functions of his or her office or employment; or
(Page 8)
- (ii) corruptly taken advantage of his or her office or employment as a public officer to obtain any benefit for himself or for another person; or
(iii) committed a scheduled offence whilst acting or purporting to act in his or her official capacity; or
(iv) committed an offence under section 552 of The Criminal Code by attempting, whilst acting or purporting to act in his or her official capacity, to commit a scheduled offence; or
(v) committed an offence under section 553 of The Criminal Code by inciting, whilst acting or purporting to act in his or her official capacity, the commission of a scheduled offence; or
(vi) committed an offence under section 558 of The Criminal Code by conspiring, whilst acting or purporting to act in his or her official capacity, to commit a scheduled offence;
- (b) receive information furnished to it by any person who alleges that another person has been involved in criminal conduct engaged in by a public officer in such a manner that the other person could be regarded, under Chapter II of The Criminal Code, as having taken part in committing an offence, or as having committed an offence or as being an accessory after the fact to an offence;
(c) receive information furnished to it by any person who alleges that a public officer has engaged in conduct (other than corrupt conduct or criminal conduct) that -
(i) adversely affects, or could adversely affect, directly or indirectly, the honest or
(Page 9)
- impartial performance of the functions of a public body or public officer; or
- (ii) constitutes or involves the performance of the public officer's functions in a manner that is not honest or is not impartial; or
(iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or
(iv) involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or another person,
and constitutes or could constitute -
(v) an offence against the StatutoryCorporations (Liability of Directors) Act 1996 or any other written law; or
(vi) a disciplinary breach providing reasonable grounds for the termination of a person's office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct); and
- (d) consider, in the light of its own experience and knowledge and independently of any allegation referred to in paragraph (a), (b) or (c) whether or not the Commission ought itself to allege -
(i) that a public officer has engaged in corrupt conduct, criminal conduct or serious improper conduct; or
(Page 10)
- (ii) that another person has been involved in a manner described in paragraph (b) with criminal conduct engaged in by a public officer.
- (2) The information referred to in subsection (1)(a), (b) or (c) may be furnished to the Commission orally or in writing, but the Commission may then seek from the person furnishing that information such further information, in such form as it thinks fit, as it may require to perform its functions.
(3) An allegation about the conduct of a person in his or her capacity as the holder of a judicial office shall not be received or initiated by the Commission unless the allegation relates to -
(a) the commission or attempted commission of;
(b) the incitement of the commission of; or
(d) a conspiracy to commit,
an offence under section 121 of The Criminal Code.
(4) …."
10 By s 4 of the Act, the Commission is empowered to receive information and otherwise perform its functions in relation to acts, omissions or conduct alleged to have been done, omitted or engaged in, whether that conduct occurred before or after the coming into operation of the Act, by a person who was a public officer at the time of the alleged acts, omissions or conduct even if the person has since ceased to be a public officer.
11 Section 12 sets out the functions of the Commission. They include, relevantly, to receive or initiate allegations of corrupt conduct, criminal conduct, criminal involvement or serious improper conduct about (i) police officers and (ii) other public officers and to consider whether further action is needed in relation to an allegation and, if so, by whom that further action should be carried out. The Commission is empowered itself to carry out further action in relation to allegations if it is appropriate for it to do so, or to refer allegations to other authorities so that they may carry out further action. It may furnish reports and make
(Page 11)
- recommendations on the outcome of any further action taken in relation to allegations. See also s 17 and s 18.
12 By s 37, the Commission, in making a preliminary inquiry, is empowered to request, orally or in writing, any person or body to supply to it such information as is specified in that request in such manner and within such period as is so specified. Information supplied by a person pursuant to such a request is not admissible in evidence against that person in any civil or criminal proceedings, other than contempt proceedings or proceedings for an offence against the Act. By s 38, in making a preliminary inquiry the Commission may also request, orally or in writing, any person or body to produce to it such document or other thing as is specified in that request in such manner, and within such period, as is so specified.
13 By s 40 of the Act, for the purposes of carrying out investigations and furnishing reports to the Commission, a special investigator appointed under s 8 has the powers of a Royal Commission and the Chairman of a Royal Commission under what is described as "the applied provisions". Those provisions comprise the sections in the Royal Commissions Act 1968 set out in the definition of the term "applied provisions" in s 3 of the Act. The powers so conferred include the power to summon witnesses.
14 Section 43 of the Act provides in relation to prospective witnesses as follows:
"43. Before the evidence of a witness is taken on oath under the applied provisions in the course of an investigation, the witness is entitled to be informed of the general scope and purpose of the investigation."
- It may be observed that the entitlement to information does not extend to the provision of details of the allegations as such, or to the provision of the instrument of appointment or the written notice under s 8(1) of the Act. The position is different under the National Crime Authority Act 1984 (Cth), which requires that a copy of the relevant notice of reference to the Authority for inquiry should accompany a summons to a witness: "The relevance of acts, documents and things to the special investigation is determined by reference to the matter referred by the notice" - AB v National Crime Authority (1998) 156 ALR 52, at 59 - 60.
15 The terms of the written notice, dated 9 March 1998, which was given to the second respondent by the first respondent, are as follows:
(Page 12)
- "The Anti-Corruption Commission hereby specifies the following allegation, allegations, or classes of allegations as that or those into which it requires that you investigate:
Allegation, Allegations or Classes of Allegations
1. Any alleged corrupt conduct, criminal conduct, criminal involvement or serious improper conduct by any public officer (present or past) involved, either directly or indirectly in the theft, possession, distribution, sale, supply or use of any illicit or prohibited drug between the period 1 January 1980 to the present time or in any activities directly or indirectly associated with or related to such conduct or involvement.
2. Any alleged corrupt conduct, criminal conduct, criminal involvement or serious improper conduct by any public officer (present or past) involved, either directly or indirectly, in the search at 133 Duke Street Scarborough, Western Australia, on or about 22 June 1982 or in any activities associated directly or indirectly with or related to that search whether before, or during or after its conduct.
3. Any alleged corrupt conduct, criminal conduct, criminal involvement or serious improper conduct by any public officer (present or past) involved, either directly or indirectly, in the execution of a search warrant at 1834 Wanneroo Road, Neerabup, Western Australia on or about 6 April 1983 or in any activities directly or indirectly associated with that search whether before, during or after its conduct.
4. Any allegations against any public officer (present or past) of corrupt conduct, criminal conduct, criminal involvement or serious improper conduct related to the aforementioned matters or disclosed during investigations by the Special Investigator, or during inquiries or investigations by officers of the Anti-Corruption Commission, whether related to the aforementioned matters or not."
16 The second appellant was summoned to give evidence before the second respondent. Following his giving evidence, he was charged with
(Page 13)
- giving false testimony, contrary to s 24 of the Royal Commissions Act, which is one of the "applied provisions". It appears in the reasons for judgment of the learned Judge at first instance that each of the appellants had been summoned by the investigator to give evidence, although this is not apparent from the affidavits before us. However, no issue has been raised regarding the standing of any of the appellants to institute the proceedings.
17 The findings of the learned trial Judge regarding the severability of par 4 of the notice were challenged in the notice of appeal. However, in argument before us, senior counsel for the appellant did not press the severability point, indicating that the main thrust of his contention on the appeal was that each of the paragraphs in the notice failed to comply with s 8(1). He made it clear that he did not submit that pars 1, 2 and 3 were in some way dependent upon par 4 so that, in that sense, par 4 was not severable. He did, however, submit that the problem which arose in this case is that the notice was given to the special investigator, that it was not seen by the persons who were summoned and who were the subject of investigation, and that one of the appellants was not only questioned but, as a result of his answers, he had been charged with four offences of having given false testimony touching a matter material in the investigation. It was, counsel claimed, impossible to say whether that evidence, or any other evidence taken which is potentially the subject of charges against any of the individual appellants, was evidence which was taken pursuant to par 4 or to pars 1, 2 or 3 of the notice, that notice having been acted upon. He reiterated that, having regard to par 4, it was impossible to say whether it was on the basis, or partly on the basis, of that paragraph that the investigation proceeded. This argument was not developed on behalf of the appellant, and it is sufficient to say that each of the four complaints which form part of the materials before us alleges that the false testimony stemmed from the denial by the second appellant of the use of drugs by public officers, a matter which clearly came within the scope of par 1 of the notice.
18 The further difficulty which the appellants face in pursuing this line of argument is that the notice is either valid or invalid in its own terms. Its validity cannot be determined by a consideration of how the investigator acted in reliance upon those terms.
19 In the circumstances, it is sufficient for me to indicate that I agree with the conclusion of the learned Judge at first instance that, generally for the reasons which he gives, par 4 of the notice is severable, accepting for this purpose that it is invalid, there having been no cross-appeal
(Page 14)
- regarding the invalidity of par 4. Clearly, par 4 is textually severable, and the operation of the remaining paragraphs is unchanged after the severance of par 4, as to which see generally Director of Public Prosecutions v Hutchinson [1990] 2 AC 783, at 804, 811; Harrington v Lowe (1996) 190 CLR 311, at 328; Perron Investments Pty Ltd v Deputy Commissioner of Taxation (WA) (1989) 90 ALR 1, at 6, 15; and Credit Suisse v Allerdale Borough Council [1997] QB 306, at 335.
20 In relation to the challenge to the validity of pars 1, 2 and 3 of the notice dated 9 March 1998, considerable reliance was placed by the appellants upon the decision of the Court of Appeal in New South Wales (Hope, McHugh and Clarke JJA) in Mannah v State Drug Crime Commission (1987) 13 NSWLR 43. In my opinion, however, that decision has no direct application to the present appeal, having particular regard to the significantly different terms of the New South Wales statute and to the form of the notice given to the State Drug Crime Commission in that case. Nevertheless, some assistance is to be gained from the judgments delivered by Hope and McHugh JJA.
21 The New South Wales State Drug Crime Commission was established under the State Drug Crime Commission Act 1985 (NSW). The Act empowered the Management Committee, which was also constituted under the Act, by a written notice, to refer to the Commission for investigation relevant drug activities. The expression "relevant drug activity" was defined in the Act to mean any circumstances implying or any allegations that a relevant drug offence may have been, or may be being, or may be about to be, committed. The expression "relevant drug offence" was also defined in the Act. Unlike the position under the Anti-Corruption Commission Act, there was an express power given to the Management Committee, in the terms of reference, to impose limitations on the carrying out of an investigation by the Commission. The Commission itself was required to furnish a report of its operations to the Management Committee for presentation to the Minister and tabling in each House of Parliament. The Commission had the power to summon a person to appear before it to give evidence at a hearing. As in the case of the National Crime Authority, any such summons was required to be accompanied by a copy of the notice by which the matter had been referred to the Commission. The summons was also required to set out, subject to an exception referred to later, but which is not presently material, "so far as is reasonably practicable, the general nature of the matters in relation to which the Commission intends to question the person", although it was further provided that nothing in the relevant
(Page 15)
- subsection prevented the Commission from questioning the person in connection with any matter that related to an investigation.
22 The written notice given by the management committee to the Commission in that case was in the broadest of terms. It was as follows:
"STATE DRUG CRIME COMMISSION ACT 1985
NOTICE
TO: STATE CRIME COMMISSION OF NEW SOUTH WALES
Pursuant to Section 25(1)(a) of the State Drug Crime Commission Act 1985 (the Act) the State Drug Crime Commission Management Committee hereby refers to the State Drug Crime Commission for investigation the following matter relating to a 'relevant drug activity' (as defined in the Act).
MATTER
REFERENCE: CODE NAMED: ODIN
The nature and scope of the relevant drug activity, the identities of persons involved and the nature and scope of their involvement in the commission of a relevant drug offence (as defined in the Act).
At the Management Committee meeting on 11 March 1987, the identities of the persons the subject of the reference code named: ODIN were given to the members present."
23 The Court of Appeal held that the purported reference to the Commission did not comply with the relevant provisions of the Act and that the Commission was not validly authorised to embark upon the investigation for the purposes for which the summonses were issued in that case.
24 At 48, Hope JA observed that the section authorising the reference in that case did not specify what should or need not be contained in the written notice, save that it provided that the terms of the reference may impose limitations on the carrying out by the Commission of the investigations into the referred activity. He said:
"The legislature apparently considered that a person required to give evidence before or to produce documents to the
(Page 16)
- Commission was entitled to know by what authority he was so required, and to that end s 16(2) provides for every summons to be accompanied by a copy of the written notice of referral. This provision denies the privacy of the notice, and confirms the standing of any person served with a summons to challenge the source of the power to issue the summons."
- He also pointed out that, in the written notice of referral, there was no description of the relevant drug activity in the defined or, indeed, in any sense, to be investigated. The notice referred to two sources of information from which, it may be assumed, the activity which was required to be investigated could be identified. One was the reference to a code name "Odin" and the other was the statement that, at the Management Committee meeting, the identities of the persons the subject of the reference code named "Odin" were given to the members present. It did not appear whether the chairperson of the Commission was present, although it was thought that he may very well have been. Furthermore, it was not known to what relevant drug activity "Odin" referred. It was not suggested that, if there were a file with this code name, it had been incorporated in the notice. Nor was it suggested that the names given at the meeting had been incorporated in the notice. As Hope JA said at 49:
"In effect [the notice] did no more than to refer to the Commission drug activities which had been identified to the Committee. The Commission would have to go outside the written notice to find out what matters had been referred to it, and any witness served with a copy of the notice would have no idea, from the document, what drug activity was the subject of investigation. In any report to the Minister and to Parliament it would not be possible to identify the subject of the investigation without going outside the written notice."
"[W]hile the Commission is not always bound to inform the person summoned of the matters about which it wishes to
(Page 17)
- question him, it is obliged to inform him of the "relevant drug activity" which it is investigating. The object of this requirement is to enable the person summoned, whether or not he is informed of the matters about which he will be questioned, to be in a position to make a judgment as to whether his interrogation is relevant to a drug activity which the Commission has power to investigate".
26 His Honour also referred to the specific requirements relating to a search warrant under the New South Wales legislation. No such requirements are laid down in the Western Australian legislation, as to which see s 45 of the Act and s 18(2) to (11) of the Royal Commissions Act, the latter being "applied provisions".
27 At 55, McHugh JA went on to say:
"When the Act is read as a whole, as it must be, it is quite impossible to hold that the notice in the present case is valid. A person summoned to give evidence or to produce a document at a hearing or to give information to the Commission, or the Supreme Court on review, could not ascertain what matter has been referred to the Commission under the ODIN notice. In truth, since the notice does not specify an allegation or a circumstance or circumstances which implies or imply that a "relevant drug offence" may have been or may be being or may be about to be committed, no relevant drug activity has been referred to the Commission. Accordingly, that body has no power to exercise any of its powers pursuant to the ODIN notice."
- His Honour rejected any reliance on sources outside the terms of the notice to support the notice. "It is the 'written notice' which must refer the relevant drug activities to the Commission for investigation".
28 The relevant notice under the New South Wales legislation played a much more significant role in the conduct of the investigation than does a notice given under s 8(1)(b) of the Western Australian Act. A proposed witness is not entitled to a copy of the notice to the special investigator or to the precise details of the allegation or allegations giving rise to the investigation. What he or she is entitled to is merely to be informed of "the general scope and purpose of the investigation".
29 Two other cases may be contrasted with Mannah's case. In the first of these cases, Bethel v Douglas [1995] 1 WLR 794, the Privy Council
(Page 18)
- considered the validity of the appointment of a commission of inquiry. The relevant legislation required the commission to state the matter the subject of the inquiry. One of the paragraphs in the terms of reference of the commission was as follows:
"(h) any and all allegations of fraud, corruption, breach of trust, conflict of interest or any wrongdoing whatsoever made by anyone against any person whatsoever arising out of and in connection with any or all of the affairs of Bahamasair Holdings Ltd, the Hotel Corporation of The Bahamas and The Bahamas Telecommunications Corporation …."
31 At 802, Lord Jauncey, delivering the judgment of their Lordships, said:
"Ratnagopal's case is authority for the proposition that in appointing a commission under statutory powers such as were contained in section 2 of the Ceylon Commissions of Inquiry Act and in section 2 of the [Bahamas] Act of 1911 the Governor-General must specify the matters to be inquired into and is not entitled to leave it to the commission to determine what those matters are to be. In the present case the Governor-General did exactly that by confining the matters to those arising out of or in connection with the affairs of three named companies. There was accordingly no such delegation of discretion as occurred in Ratnagopal's case and no ground for challenging the validity of the reference."
32 In the second case, National Crime Authority v A1 (1997) 75 FCR 274, the Full Court of the Federal Court was concerned with the validity of notices of reference by a Commonwealth Minister to the National Crime Authority. The description in the notice of the general nature of the circumstances or allegations constituting the relevant criminal activities was as follows:
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- "The general nature of the allegations is that members of certain clubs, such clubs having been identified to me by the Authority on 9.11.1995, or persons associated with the members of clubs, may have been, or may be being, in concert with one another or other persons, engaged in any one or more of the following activities …."
- A list of activities then followed, including the illegal importation of narcotics, bribery and most of the matters described as offences in par (d) of the definition in the National Crime Authority Act 1984 (Cth) of "relevant offence". The majority of the court, comprising Von Doussa and Sundberg JJ, held that the criminal activities were not too broadly described, that the statement of a timeframe was not required in order that there be a description of the general nature of the circumstances or allegations constituting the relevant criminal activity, that it was not necessary in order for a reference to be valid for it to identify offenders at all, so that one which purports to do this but does so in a limited way by referring to clubs which have been identified only to the Minister, cannot thereby be rendered invalid and that the fact that the notice did not mention the conduct of any named person or persons or mention particular transactions did not render the notice insufficient. In that case, it should be noted, the statutory requirement was that the notice describe "the general nature of the circumstances or allegations constituting the relevant criminal activity".
33 At 294, Von Doussa and Sundberg JJ said:
"An NCA investigation starts with no specific issues or charges. It has only its terms of reference, which may be extremely wide. Its function is inquisitorial, not adversarial. It must pursue lines of inquiry, and in doing so may find that other lines of inquiry appear profitable …. The NCA should not be regarded as outside its charter so long as it bona fide seeks to establish a relevant connection between certain facts and the subject matter of the reference, and that connection is one that is reasonably capable of being related to the purpose for which the power is conferred …. Because the NCA is an investigative body, it must necessarily embark on a fishing expedition …. Given the nature of an NCA investigation, to say that it is a function of the notice of reference to enable the NCA to ascertain the extent or limits of its powers does not mean that a notice must possess the particularity insisted upon by the primary judge."
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- Those remarks are, in my opinion, equally applicable to an investigation by the Anti-Corruption Commission. In particular, they are applicable to par 1 of the notice.
34 Section 8(1) of its Act requires the notice given to the special investigator by the Commission to specify an allegation or allegations or class of allegations. The degree of specificity which is therefore possible is necessarily dependent upon the terms of the allegation or allegations in question. Those allegations may have been made orally or in writing. They may have been made by the Commission itself. They may have been very general in their nature. They may not have identified a public officer or former public officer against whom the allegations have been made. We simply do not know, because the actual allegations are not before us. It must also at all times be borne in mind that, as Dixon J observed in relation to a Royal Commission in McGuiness v Attorney General (Vic) (1940) 63 CLR 73, at 105, "the inquiry commanded by the commission is not the trial of an issue, but the ascertainment of unknown facts". Those words are entirely apposite to the task of the special investigator. To require a high degree of specificity in allegations before an investigation can be commenced would defeat the scheme of the Act. I accept, however, that such a degree of specificity will be necessary in an instrument or in the notice under s 8(1) of the Act as will enable the special investigator to discern that the subject matter of the investigation falls within the confines of the Act and does not go beyond them. Paragraphs 1, 2 and 3 of the notice satisfy that test and, in my opinion, sufficiently identify the allegations which are to be investigated and reported upon. This is not a case in which it has effectively been left to the special investigator to whom the matter of inquiry has been referred to determine what he should do and into what matter he should inquire. Nor do I consider that it is essential for the notice to identify the person or persons against whom an allegation has been made - see Bethel v Douglas (supra) and National Crime Authority v A1 (supra).
35 It was argued for the appellants that the notice could extend to the investigation of future allegations. In my view, this suggestion cannot be maintained. The words preceding the four paragraphs in the notice must refer to allegations, or classes of allegations, which have already been made.
36 The terms of the written notice could have been better expressed. The use of the word "any" is capable of giving rise to some ambiguity; but it is sufficiently clear that the allegations to be investigated must fall within the general descriptions to be found in pars 1, 2 or 3. Without
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having access to the particular allegation or allegations, however, it is not possible to determine from the notice itself whether the subject matter of each paragraph relates to a single allegation, a multiplicity of allegations, or a class of allegations, although the preferable view seems to me to be that they relate to a multiplicity of allegations. However, whether the notice relates to a multiplicity of allegations or whether one or more of the paragraphs in the notice relates or relate to a class of allegations does not, in my opinion, affect the position, it not having been established that any of par 1, par 2 and par 3 does not sufficiently identify the subject matter of the investigation.
37 I agree with the learned Judge at first instance that a class of allegations will be constituted by allegations regarding the conduct of public officers which bear some feature in common which enables a conclusion to be reached as to whether a particular allegation falls within the class. I do not, however, accept that, in order to constitute a class of allegations, those allegations must necessarily be of a kind which would enable them to be identified as falling within a particular, discrete, category of the allegations identified in the various paragraphs of s 13(1) of the Act, those categories not being mutually exclusive. I accept the submission of the respondents that to hold otherwise would be inconsistent with the nature of the investigator's task, it not being feasible in many cases, at the outset of an investigation, to confine the relevant conduct within a particular paragraph of s 13(a) of the Act. It would therefore in large measure defeat the purpose behind the inclusion of "a class of allegations" in s 8(1) of the Act.
38 For the foregoing reasons, I would dismiss the appeal.
39 WALLWORK J: I agree with the reasons and conclusions of Kennedy J. I wish only to add a few observations to those reasons.
40 Section 8(1) of the Anti-Corruption Commission Act 1988 insofar as it applies to this matter, requires the written notice given to the Special Investigator to specify in it "an allegation, or allegations or class of allegations".
41 In their reasons for judgment in National Crime Authority v A1 (1997) 75 FCR 2 von Doussa and Sunderberg JJ said that the relevant statute in that case required the notice to describe the general nature of the allegations constituting the relevant criminal activity. Their Honours held that the legislation required the reference to describe "…the general nature of the allegations that a relevant offence may have been or may be in the
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course of being committed. The reference states that the general nature of the allegations is that various persons may have been engaged in or may be engaging in one or more of a list of activities being relevant offences. It does not blandly assert that persons are alleged to have engaged in or to be engaging in relevant criminal activity."
42 At 289 their Honours said that:
"…the NCA engages in investigations unlike those conducted by the ordinary police forces. It does not necessarily proceed from a discovered offence. The inquiry may be as to whether any relevant offences have been committed or are being committed…The power should not be narrowly confined: cf Melbourne Home of Ford (at 173)."
43 Their Honours held in the NCA case that the notice was sufficient as it stated that various persons may have engaged in, or may be engaging in specified criminal activities.
44 Their Honours discussed the reasons for decision in Mannah v State Drug Crime Commission (1988) 13 NSWLR 43. They said at 291 that:
"Mannah is of little assistance in assessing the requirements of a section 13 notice. Section 25 of the New South Wales Act did not prescribe the contents of a notice of referral. It merely provided that one of the Committee's functions was to refer relevant drug activities to the Commission. By contrast, s 13(2) of the Act details the contents of a notice of reference, and in particular uses the phrase 'general nature of the circumstances or allegations constituting the relevant criminal activity'."
45 At 292 of the report in the NCA decision their Honours when discussing the notice in that case said:
"It describes an allegation that various persons may have engaged in or may be engaging in one or more of ten specified activities, participating in which constitutes an offence or offences against Commonwealth laws. It thus satisfies Hope JA's requirement of a valid notice, namely that it "identify [a relevant offence] by reference to the relevant allegations' and McHugh JA's requirement that it describe 'an allegation … that a relevant … offence, as defined, may have been … committed.' A person summoned to give evidence or to produce a document or give information, and a court on review, will know from the
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- notice that what has been referred to the NCA is whether various persons have engaged in or are engaging in any of the specified activities, the engaging in which constitutes offences against the Commonwealth laws."
46 The notice in the present case complies with the last mentioned test because a person summoned to give evidence or produce a document or give information and a court on review will know from the notice in par 1 that what the Special Investigator has been required to investigate and report on to the Commission, are allegations concerning corrupt, serious improper or criminal conduct by any public officer (past or present) involved in the theft, possession, distribution, sale, supply or use of any illicit or prohibited drug between 1 January 1980 to the date of the notice being 9 March 1998 or in any activities associated with or related to such conduct or involvement.
47 Similarly the second paragraph of the notice to the Special Investigator specifies the type of conduct which it requires investigated and specifically relates it to a search at premises in Scarborough on or about 22 June 1982 or conduct associated with that search.
48 The third paragraph in the notice specifies similar alleged conduct concerned with the execution of a search warrant at another location on or about 6 April 1983 or any activities associated with that search.
49 It can be seen from the notice what it is that the Special Investigator is to investigate and report on to the Commission.
50 In the NCA decision, von Doussa and Sunderberg JJ said at 293:
"Although the Mannah notice stated that the identities of the persons the subject of the reference had been given to those present at the Committee's meeting, rather than itself naming the persons, neither Hope JA nor McHugh JA made it a condition of the validity of a notice that it identify the persons involved in the relevant activities. What they insisted upon was that the notice disclose the relevant drug activity referred. Had the Mannah notice stated that the allegation was that unnamed persons had engaged in specified activities the engaging in which constituted offences against New South Wales drug laws, it would in our view have satisfied their Honours' requirements notwithstanding that it did not identify the persons the subject of the allegation."
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51 When discussing whether the notice in the NCA decision enabled the court to adjudicate upon issues of power and relevance, their Honours said at 295:
"Once it is understood that intervention is restricted to cases in which the NCA is off on a frolic of its own or is engaging in conduct that no reasonable body, correctly directing itself in law, could properly engage in, the absence of information as to persons, conduct and timeframe will not impede a court from discharging its function, though its role will be more restricted than it would be if it were determining questions of relevance in ordinary adversary litigation or questions of power in contexts other than those involving wide-ranging inquiries and investigations such as those engaged in by the NCA."
52 Their Honours concluded at 295:
"The contention that to be valid a notice must identify the persons whose conduct is in question, described that conduct, state when or between what dates the conduct occurred, and state in a detailed way (that is not broadly) the alleged criminal activities, cannot be correct. A notice which included all those matters would contain a specific, and not a general, description of the circumstances or allegations constituting the relevant activity. Section 13(2)(a) shows that Parliament did not intend that a notice must contain that degree of specificity. Moreover, if the Minister were aware of all the facts insisted upon by the primary judge, there would be no need for an investigation by the NCA. The matter could be dealt with by the ordinary police forces."
53 In this case it is significant that the functions of the Commission pursuant to s 12(1) of the Act include the power:
"(a) to receive or initiate allegations of corrupt conduct, criminal conduct, criminal involvement or serious improper conduct about -
(i) police officers; and
(ii) other public officers; …."
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a notice such as the one in question is being considered, because like the power in the NCA decision discussed above, it is an investigative power, inquisitorial and not adversarial.
55 In accord with the reasons in the NCA decision, the Commission should not be regarded as acting beyond its powers so long as it bona fide seeks to investigate a relevant connection between certain facts and its investigations into corrupt, serious improper or criminal conduct within the scope of s 12 of the Act and as long as that connection is one that is reasonably capable of being related to the purpose for which the power is conferred - National Crime Authority v A1 (supra) at 294.
56 WHITE J: In this matter, I have had the advantage of reading in draft the judgment delivered by Kennedy J.
57 The issue of greater substance in this appeal was as to whether the notice appointing Mr Tannin as a special investigator complied with the provisions of s 8 of the Anti-Corruption Commission Act 1988 ("the Act"). That section is set out in the judgment of Kennedy J. The issue was as to whether the notice, whose terms are stated in his Honour's judgment, specified an allegation or allegations or class of allegations as required by that section. It is, I think, significant that there is no requirement that the contents of the notice be disclosed by the special investigator to anyone being investigated by him. The purpose of the notice is to inform the special investigator of the scope and boundaries of the investigation he is required to carry out. The word "allegation" is defined in the Act and means an allegation referred to in s 13(1)(a), (b), (c) or (d) of the Act. Subparagraphs (a), (b) and (c) of that subsection refer to the receipt of information furnished to the Commission and it follows, I think, that the "allegation or allegations or class of allegations" to which the notice is required to refer must be past allegations already made to the Commission at the time of the appointment of the special investigator and not allegations made thereafter. It seems inevitable that the special investigator would be informed by the Commission of the details of the relevant allegations which the Commission wished to have investigated. In the course of oral argument, learned senior counsel for the appellants made the following submission in answer to a question put to him by Wallwork J:
"WALLWORK J: Mr McCusker, do you go so far as - I'm just looking at page 20 where his Honour referred to a previous decision where the reference was by means of a codename. Do you go so far as to say that in this Notice at page 36 they
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- couldn't put in a codename. Do you say that the actual allegation has to be clear to the reader? I ask that question because of the words 'any alleged corrupt conduct'. If it had 'the alleged corrupt conduct' and the investigator knew what it was, do you say it has got to be in the notice?
MCCUSKER MR: He has to be told what it was, yes.
WALLWORK J: Say it had 'the alleged corrupt conduct, codename 33',would that be sufficient notice under this Act?
MCCUSKER MR: Provided he had the codename reference which was given to him.
WALLWORK J: But it doesn't have to be specified - what I'm trying to get at, is you don't go so far as to say that it necessarily had to be clear to a reader who picks it up what it's referred to.
MCCUSKER MR: No. As long as it is clearly identified to him so that he knows the task he has to undertake."
58 It is, I think, clear that, in order to know what allegations are referred to in the notice, the special investigator must be given this information by the Commission. The notice must be read, in my opinion, as though the words "which have been made to it" were inserted in the opening passage, so that that passage would read:
"The Anti-Corruption Commission hereby specifies the following allegation, allegations, or classes of allegations which have been made to it as that or those which it requires that you investigate."
59 I agree that the appeal should be dismissed for the reasons his Honour gives.
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