XCIV v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

XCIV v The Australian Crime Commission

[2015] FCA 586

Citation: XCIV v The Australian Crime Commission [2015] FCA 586
Parties: XCIV  v THE AUSTRALIAN CRIME COMMISSION  and G.E. (TIM) SAGE
File number: NSD 498 of 2014
Judge: WIGNEY J
Date of judgment: 26 June 2015
Catchwords:

ADMINISTRATIVE LAW – Australian Crime Commission – Summons – Issue of validity – Whether there was a failure to comply with s 28 of the Australian Crime Commission Act 2002 (Cth) – Consideration of examiner’s reasons for issuing the summons – Whether examiner understood statutory basis of authority to issue summons

ADMINISTRATIVE LAW – Australian Crime Commission – Determination and authorisation – Issue of validity – Whether the Board of the Australian Crime Commission considered whether ordinary police methods were likely to be effective – Whether there was a failure to comply with s 7C of the Australian Crime Commission Act 2002 (Cth) – Whether determination exceeds the scope of s 7C of the Australian Crime Commission Act 2002 (Cth) – Whether determination describes the general nature of the circumstances or allegations constituting the federally relevant criminal activity as required by s 7C(4)(a) of the Australian Crime Commission Act 2002 (Cth) – Whether there has been an impermissible delegation of power to make a determination to officers of the Australian Crime Commission

PRACTICE AND PROCEDURE – Joinder – Application for an order to replace the respondents with the Commonwealth of Australia pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) – Whether the Australian Crime Commission is improperly or unnecessarily joined as a party – Application dismissed

Legislation: Acts Interpretation Act 1901 (Cth), s 46
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6
Australian Crime Commission Act 2002 (Cth), ss 7, 7C, 28
Criminal Code Act 1995 (Cth), Part 9.1
Federal Court Rules 2011 (Cth), r 9.08
Judiciary Act 1903 (Cth), ss 39B, 78B
National Crime Authority Act 1984 (Cth), ss 13(2), 14(2)
Cases cited: AA v Board of the Australian Crime Commission (2009) 178 FCR 171
ABC v Sage (2009) 175 FCR 319
Barnes v Boulton (2004) 139 FCR 356
George v Rockett (1990) 170 CLR 104
GG v Australian Crime Commission (2010) 182 FCR 513
JJ v Board of the Australian Crime Commission (2011) 197 FCR 138
Jones v Dunkel (1959) 101 CLR 298
National Crime Authority v A1 (1997) 75 FCR 274
Optical Prescription Spectacle Makers Pty Ltd v Withers (1987) 13 FCR 594
P v Board of the Australian Crime Commission (2006) 151 FCR 114
Parker v Churchill (1986) 9 FCR 334
Parramatta City Council v Hale (1982) 47 LGRA 319
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Hughes (2000) 202 CLR 535
S v Australian Crime Commission (2006) 149 FCR 361
Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1
SBEG v Commonwealth (2012) 208 FCR 235
SS v Australian Crime Commission (2009) 224 FCR 439
Stoten v Sage (2005) 144…
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Details
Case
[2015] FCA 586
Decision Date

CaseChat Overview and Summary

The applicant, XCIV, sought to challenge the validity of a summons issued by an examiner under section 28 of the Australian Crime Commission Act 2002 (Cth). The summons required the applicant to appear before an examiner to give evidence in relation to a special investigation conducted by the Australian Crime Commission (ACC). The applicant argued that the summons was invalid due to alleged failures by the examiner to comply with the statutory requirements under section 28 of the Act. Additionally, the applicant contended that the ACC Board's determination authorising the special investigation did not adequately consider whether ordinary police methods were likely to be effective, thereby breaching section 7C of the Act. The applicant also argued that the determination exceeded the scope of section 7C and did not sufficiently describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity.

The court examined whether the examiner complied with the statutory requirements under section 28 of the Act when issuing the summons. The court found that the examiner had recorded the reasons for issuing the summons before the summons was served on the applicant, satisfying the requirements of the Act. The court also held that the ACC Board's determination was valid and that the Board had appropriately considered whether ordinary police methods were likely to be effective. The court found that the determination did not exceed the scope of section 7C and adequately described the general nature of the circumstances or allegations constituting the federally relevant criminal activity. The court further held that there had been no impermissible delegation of power to make a determination to officers of the ACC.

The court dismissed the application and ordered that the applicant pay the costs of the respondents, except for the costs associated with the interlocutory application to vary the names of the respondents to the originating application. The court further ordered that the respondents pay the costs of and incidental to their interlocutory application.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the costs of the respondents, save for the costs the subject of Order 3.

3. The respondents pay the costs of and incidental to the respondents’ interlocutory application to vary the names of the respondents to the originating application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Section 28 of the Act gives an examiner the power to issue a summons to appear at an examination. It relevantly provides as follows:(1)An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons. (1A)Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made: (a)before the issue of the summons; or (b)at the same time as the issue of the summons.(2)A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation. (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. (4)...(5)...(6)...(7)The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation. (8)...RELEVANT FACTS There is essentially no dispute concerning the relevant facts. The Summons served on the applicant states that it was issued by the examiner at 8.50am on 14 May 2014. It is addressed to the applicant and relevantly states as follows: Pursuant to subsection 28(1) of the Australian Crime Commission Act 2002 (the Act), for the purposes of a Special ACC Investigation being conducted by the Australian Crime Commission: 1.being satisfied that it is reasonable in all the circumstances to do so;2.having recorded in writing the reasons for being so satisfied at 8.45 pm on 14th May 2014;3.I summon you:(a)to appear at 10:00 am on Tuesday, 20 May 2014 before an Examiner at an examination at the Australian Crime Commission, Tower B, Centennial Plaza, Level 10, 280 Elizabeth Street, SYDNEY and from day to day unless excused or released from further attendance; (b)to give evidence of or about the following federally relevant criminal activity: i) serious drug offences contrary to Part 9.1 of the Criminal Code which are punishable by imprisonment for a period of three years or more; The Summons also states that it annexes, pursuant to s 28(2) of the Act, a copy of the ACC Board’s “determination that the investigation is a special investigation”. Annexed to the Summons is an instrument made by the Board under s 7C of the Act by resolution made on 4 September 2013. The instrument is named the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No.2) 2013.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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