X v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

X v Australian Crime Commission [2004] FCA 1475

STATUTES – Australian Crime Commission Act 2002 (Cth) – whether Board of Australian Crime Commission had power to amend an authorisation and determination for a special investigation – whether a new determination required under s 7C

STATUTES – Acts Interpretation Act 190,1 s 33(3) – meaning of “instrument” – whether application limited to instruments of a legislative character – whether contrary intention precluded reliance on s 33(3)

STATUTES – Australian Crime Commission Act 2002 (Cth), s 30(2) – whether abrogated privilege against self-incrimination in relation to foreign offences

Acts Interpretation Act 1901 (Cth) ss 33(1), 33(3)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Crime Commission Act 2002 (Cth) ss 7, 7B, 7C, 7G, 8, 9, 22, 24A, 28, 30, 46B

Loprete v Australian Crime Commission [2004] FCA 1476 referred to
A v Boulton (2004) 207 ALR 342 applied
Barnes v Boulton [2004] FCA 1219 cited
Ousley v The Queen (1997) 192 CLR 69 applied
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 cited
Eatts v Dawson (1990) 21 FCR 166 cited
R v Ng (2002) 5 VR 257 followed
Azevedo v Secretary, Department of Primary Industries & Energy (1992) 35 FCR 284 referred to
Barton v Croner (1984) 3 FCR 95 cited
Heslehurst v Government of New Zealand (2002) 117 FCR 104 followed
Glaxosmithkline Australia Pty Ltd v Anderson [2003] FCA 617 cited
Bank of Valletta plc v National Crime Authority (1999) 165 ALR 60 cited
Brannigan v Davison [1997] AC 238 considered
Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Co Ltd (No 4) [1985] 1 QdR 127 cited
FF Seeley Nominees Pty Ltd v El AR Initiations (UK) Ltd (1990) 96 ALR 468 cited

X v AUSTRALIAN CRIME COMMISSION

No S 120 of 2004

FINN J
ADELAIDE
17 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 120 OF 2004

BETWEEN:

X
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

17 NOVEMBER 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

  1.        The application be dismissed with costs

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 120 OF 2004

BETWEEN:

X
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

FINN J

DATE:

17 NOVEMBER 2004

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. The two issues raised in this matter – and in the parallel proceeding of Loprete v Australian Crime Commission [2004] FCA 1476 - are (i) whether the Board of the Australian Crime Commission (“the ACC”) had power to, and did, lawfully amend an authorisation and determination it had previously made for a special investigation by the ACC into “federally relevant criminal activity”; and (ii) whether s 30(2) of the Australian Crime Commission Act 2002 (Cth) (“the ACC Act”) has abrogated the privilege against self-incrimination in relation to offences against the laws of…

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Details
Case
[2004] FCA 1475
Decision Date

CaseChat Overview and Summary

The case of X v Australian Crime Commission involved an application for judicial review of decisions made by the Australian Crime Commission (ACC) under the Australian Crime Commission Act 2002 (Cth). The applicant contested the ACC's authority to amend an authorisation for a special investigation and the ACC's rejection of the applicant's claim to refuse to answer questions on the basis of self-incrimination. The court was tasked with determining whether the ACC had the power to extend the period of a special investigation and whether the applicant had a privilege against self-incrimination under the ACC Act.

The legal issues before the court were twofold. Firstly, whether the ACC had the implied power to amend the authorisation and extend the period of a special investigation, and secondly, whether the ACC Act abrogated any privilege against self-incrimination that the applicant might otherwise have had. The court considered the provisions of the Acts Interpretation Act 1901 (Cth) and the interpretation of the ACC Act, including relevant case law.

In addressing these issues, the court found that the ACC had an implied power to amend the authorisation and extend the period of the special investigation under s 33(3) of the Acts Interpretation Act. Regarding the privilege against self-incrimination, the court referred to the Full Court decision in A v Boulton and concluded that the ACC Act had indeed abrogated any such privilege, irrespective of the jurisdiction in which the incrimination might occur. The court held that the privilege itself had been abrogated by the ACC Act, not merely its particular applications.

The court dismissed the application for judicial review, finding that the ACC's decisions were within its statutory powers and that the applicant had no privilege against self-incrimination under the ACC Act. The application was dismissed with costs.

Orders

Orders of the court

1.

The application be dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINN J
There are short answers to each of these questions. As to the first, the ACC had an implied power to make the amendment it did (i.e. to extend the period of the special investigation) in virtue of the provisions of s 33(3) of the Acts Interpretation Act 1901 (Cth). As to the second and in light of the decision of the Full Court of this Court in A v Boulton (2004) 207 ALR 342, I am bound to conclude that “the [ACC] Act abrogated any privilege against self-incrimination that the [applicant] might otherwise have had in an examination under the Act”: [72]. It is immaterial whether the possible incrimination was in relation, variously, to a Commonwealth, a State, a Territory or a foreign offence. For the purposes of the ACC Act, it is the privilege itself that has been abrogated not particular possible applications of it: Barnes v Boulton [2004] FCA 1219 at [30], [37]-[41].THE APPLICATION AND THE DECISIONS UNDER REVIEW As filed, this application for relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) challenged what were claimed to be eight distinct decisions of the ACC. In light both of what has been abandoned by the applicant at the hearing and of an amendment allowed to be made to the application, the matters in issue have been reduced to the two noted above. The decisions now subject to review are, first, what I will describe as the ACC’s “Amendment to the Authorisation and Determination” of 28 April 2004 and, secondly, the decision of an examiner appointed under the ACC Act which rejected the applicant’s claim to refuse to answer questions on the ground, amongst others, of self-incrimination.THE STATUTORY SETTING The ACC is a recently reconstituted statutory corporation: the ACC Act, s 7. Its functions include the investigation of matters relating to “federally relevant criminal activity” when authorised so to do by the Board of the ACC. That Board is established by s 7B of the Act. Included amongst its functions are: (s 7C(1)): “(b)to provide strategic direction to the ACC and to determine the priorities of the ACC;(c)to authorise, in writing, the ACC … to investigate matters relating to federally relevant criminal activity; (d)to determine, in writing, whether … such an investigation is a special investigation.”Before determining whether an investigation is to be a special investigation the Board is required by s 7C(3) to: “consider whether ordinary police methods of investigation into the matters are likely to be effective.” The significance of a determination that an investigation be a special one is that it triggers the ACC’s access to a range of statutorily conferred coercive powers (for example, to obtain a search warrant (s 22(1)) or to conduct an examination (s 24A)). In a variety of ways safeguards are specified in the Act in the making of such a determination. Apart from the s 7C(3) requirement noted above, the Act requires that there be a special and prescribed majority vote in favour of the determination: s 7G(4) that the determination must (s 7C(4)):“(a)describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and (b)state that the serious and organised crime is, or the serious and organised crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and (c)set out the purpose of the operation or investigation”;and that the Chair of the Board must, within a period of 3 days, give a copy of the determination to the Inter-Governmental Committee (“the IGC”).

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Full text does not contain this section.