Z v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

Z v Australian Crime Commission [2010] FCA 803

Citation: Z v Australian Crime Commission [2010] FCA 803
Parties: Z v AUSTRALIAN CRIME COMMISSION
File number: NTD 21 of 2008
Judge: REEVES J
Date of judgment: 30 July 2010
Corrigendum: 23 November 2010
Catchwords:

ADMINISTRATIVE LAW – challenge to authorisation and determination made by resolution of Board of first respondent under Australian Crime Commission Act 2002 (Cth) – instrument authorised investigation and determined it to be special investigation – whether determination invalid because Board’s resolution was not a determination in writing that the investigation was a special investigation – whether determination invalid because Chair of Board did not convene or attend meeting at which determination made – whether determination invalid because of various deficiencies in resolution of the Board – whether determination invalid because Board did not set out the reasons for decision including findings on material questions of fact and refer to evidence or other material on which those findings were based – whether determination invalid because purposes stated in determination exceed scope of investigation under Act – whether determination invalid because Board did not actually draw conclusion as to whether ordinary police methods of investigation were likely to be effective – whether determination invalid because Board did not resolve class or classes of persons who were to be able to participate in investigation – whether determination invalid because Board did not identify the circumstances, or allegations, constituting the federally relevant criminal activity
Held: application dismissed – all grounds of challenge to determination fail

ADMINISTRATIVE LAW – challenge to a summons issued by second respondent under Australian Crime Commission Act 2002 (Cth) – whether summons invalid because determinations upon which they are based are invalid – whether summons invalid because copy of determination did not accompany summons – whether summons invalid because it did not require applicant to give evidence as “witness” – whether summons invalid because it was not accompanied by written statement of rights and obligations – whether second respondent could not have been satisfied that it was reasonable in all circumstances to issue summons
Held: application dismissed – all grounds of challenge to summons fail  
Legislation:  Judiciary Act 1903 (Cth) s 39B
Australian Crime Commission Act 2002 (Cth) ss 4, 4A, 7A, 7A(d), 7B, 7B(2), 7B(2)(a), 7B(3), 7C, 7C(1), 7C(1)(c), 7C(1)(d), 7C(1)(e), 7C(1)(f), 7C(2), 7C(3), 7C(4), 7C(4)(a), 7C(4)(b), 7C(4)(c), 7C(5), 7D, 7E, 7E(b), 7F, 7G, 7G(4), 7H(2), 7J, 9(2), 9(3), 9(4), 9(6), 9(8), 12(1), 12(3), 16, 19, 22, 24A, 28(1), 28(1A), 28(2), 29, 29A, 29A(3), 29B, 46B, 46A(2B), 51, 55A, 55B, 55C, 59, 59A, 61, 69C
Australian Federal Police Act 1979 (Cth) ss 18, 19, 19(1), 19(3), 19(4)
Acts Interpretation Act 1901 (Cth) ss 20, 25D, 33
Cases cited:

CC Pty Ltd v Australian Crime Commission (No 2) [2007] FCA 16
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
SS v Australian Crime Commission (2009) 256 ALR 474; [2009] FCA 580
AA v Board…

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Details
Case
[2010] FCA 803
Decision Date

CaseChat Overview and Summary

Z, the appellant, challenged the validity of a determination and a summons issued by the respondents, the Australian Crime Commission and its Chief Commissioner. Z argued that the determination and summons were invalid due to various procedural deficiencies and errors in the legal basis for the investigation. The court considered multiple grounds of challenge to both the determination and the summons, examining whether these issues rendered the determination and summons invalid.

The court began by analyzing the statutory framework under which the Board of the Commission made the determination and issued the summons. The Australian Crime Commission Act 2002 (Cth) outlines specific requirements for the Board to follow when authorizing investigations and determining them to be special investigations, which allow the use of coercive powers. The court scrutinized whether the Board had complied with these requirements, including the need for written determinations, proper procedural steps, and adequate reasons for the decisions made.

Regarding the determination, Z argued that it was invalid for several reasons, such as the Chair of the Board not presiding over the meetings where certain determinations were made, deficiencies in the Board's resolution, and inadequate reasons provided for the decision. The court examined each argument in detail, considering both the statutory language and relevant case law. It concluded that while there were some procedural irregularities, these did not invalidate the determination, as the overall purpose and intent of the Act were still achieved.

As for the summons, Z claimed it was invalid because it was not accompanied by a copy of the determination, did not require Z to give evidence as a "witness," and lacked a written statement of rights and obligations. The court found these arguments unpersuasive, relying on previous judicial interpretations that the Act does not mandate these specific formalities. The court emphasized that the summons's validity did not hinge on these particular procedural details but rather on the broader authority granted under the Act.

Ultimately, the court dismissed all grounds of challenge to both the determination and the summons, finding them to be valid. The decision was grounded in a comprehensive analysis of the statutory provisions and an understanding of the legislative intent behind the Australian Crime Commission Act 2002 (Cth). The court's ruling ensures that the Commission's authority to conduct special investigations and issue summons remains intact, provided that the core substantive and procedural requirements are met.

The final order of the court was to dismiss the amended application filed by Z on 17 March 2009, affirming the validity of the determination and summons in question.

Orders

Orders of the court

1. The amended application filed on 17 March 2009 be dismissed.

Note:

Background

Background to the litigation

For the reasons that follow, I do not intend to make either of these declarations. Before identifying the specific challenges to the validity of the determination and the summons, I propose to set out the basic legislative setting, the general relevant factual background and the facts that have been agreed between the parties. When I come to consider each of the specific challenges (below), I propose to set out any additional factual background and legislative provisions that are specific to that ground of challenge.Legislative setting, general factual background and agreed facts Under s 7C(1) of the Australian Crime Commission Act 2002 (Cth) (“the Act”), the Board of the Commission, established under s 7B of the Act, has a number of functions, including a function to make determinations about certain matters, under s 7C(1)(d), as follows:to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation. (emphasis added)The “such” (emphasised above) is referring to an operation or investigation the Board has authorised in writing the Commission to undertake under s 7C(1)(c). The expression “special ACC operation/investigation” is defined in s 4 of the Act to mean an intelligence operation or investigation the Board has determined to be a special operation or investigation. The significance of the Board determining that an operation or investigation is a special operation or investigation is that the Commission’s officers may then employ the significant coercive powers set out in this Act in relation to that special operation or investigation. They include the powers to issue a warrant (s 22); to conduct an examination (s 24A); to summon witnesses and take evidence (s 28); and to require a person to produce documents (s 29). The determination in issue in these proceedings is entitled “The Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005”. The determination was initially made at a Board meeting held on 27 July 2005 (“the first determination”). Thereafter, the first determination was extended on three occasions at Board meetings held on 7 June 2006 (“the second determination”), 14 June 2007 (“the third determination”) and 25 June 2008 (“the fourth determination”). Where appropriate in these reasons, I will refer to these four determinations together as “the determinations”. It is agreed between the parties that at all relevant times, Mr Michael Keelty occupied the office of Commissioner of the Australian Federal Police and, under s 7B(3) of the Act, was the Chair of the Board. It is also agreed that Mr Keelty did not preside at the meetings of the Board when the third and fourth determinations were made. These agreed facts are particularly significant to Z’s challenges to the third and fourth determinations. This is so because s 7E of the Act provides:A meeting of the Board must be presided over by: (a)if the Chair of the Board is present – the Chair; or (b)otherwise – another eligible Commonwealth Board member who is present and who is nominated, in writing, by the Chair to preside.I will return to this aspect when I consider the specific challenges to the determinations below.

Evidence

Evidence Before The Court

For these reason, I do not consider the summons was invalid because it failed to comply with s 28(2). Before leaving this issue I should add that I consider Mr Abbott’s reliance upon the decision in CC is misdirected. In CC, Mansfield J was required to decide whether the Board had made a valid determination in writing under ss 7C(1)(d) and (3) of the Act. Here, the question is quite different. It is whether a proper copy of the Board’s determination was attached to the summons under s 28(2) of the Act. For these reasons, I reject this challenge to the validity of the summons.(3S) The summons did not require Z to give evidence as “a witness” into federally relevant criminal activity, as required by s 28 of the Act. This ground of challenge to the summons is similar, if not identical, to a ground of challenge pursued in both SS (see at [128]) and in GG (see at [31]). Because of the conclusion I have reached (below), I do not consider it is necessary to set out the submissions of counsel in relation to this ground of challenge. The substance of them will appear from the quotes from SS and GG set out below. On this point, it is also appropriate to note that the same senior counsel appeared for the respective parties in SS, GG and this matter and, indeed, in AA1, AA2 and GGFC. Jagot J disposed of this ground in SS in the following terms (at [129]):This submission is without merit. The summons is issued pursuant to s 28(1). The section states that 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”. The section makes no reference to the word “witness”. It certainly does not require a summons, on its face, to use the word “witness”. In any event, the terms of the section and summons are clear. The person is to attend “to give evidence”. Finally, SS (again) has not explained why any such contravention (if it had occurred, which it has not) would result in invalidity of the summons having regard to the principles established in Project Blue Sky at [91]-[93]. Besanko J disposed of it in GG in the following terms (at [31]):… There is nothing in the Act which requires a summons to state that the person to whom it is directed is required to give evidence as a witness. It is not clear to me whether, by making this submission, the applicant was suggesting that he could only be required to give evidence as a witness in the sense that he could not be required to give evidence of his own activities or involvement in the activities of others. If he was suggesting that, it is plainly not a proposition supported by the provisions of the Act. The provisions of the Act have the effect of removing the privilege against self-incrimination: s 30(4) and (5) (see A v Boulton (2004) 136 FCR 420). As I have observed a number of times above, having independently considered the submissions in this case, I respectfully agree with the reasoning of Jagot J and Besanko J set out above. I therefore reject this ground of challenge to the validity of the summons.(4S) The summons did not comply with s 29A(3) of the Act, in that it was not accompanied by a written statement setting out the rights and obligations conferred or imposed by s 29B of the Act on any person who was, or might be, “otherwise given” the summons.

Decision

Reasons for decision

Ms Maharaj submitted that GGFC was distinguishable because, in this case, Mr Boulton’s failure to delete the word “operation” from the expression “investigation/ operation” merely amounted to an oversight that was forgivable in the circumstances. She submitted this oversight on his part was not of a nature that called for him to give evidence to explain how and why he was proceeding. She also submitted that there was no broader requirement for Mr Boulton to give reasons, relying upon AA and C Inc. She submitted that the record of reasons Mr Boulton did prepare is an administrative document which should not be scrutinised overzealously with an eye attuned to finding error, relying upon the High Court’s decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (“Wu Shan Liang”). Finally, she submitted that, even if Mr Boulton’s record of reasons did not comply with s 28(1A) of the Act, that did not lead to the invalidity of the summons.The decision in GGFC In GGFC, the Full Court relied upon two matters to conclude that the examiner had fundamentally misunderstood the nature of his task. In summary, they were, first, that his record of reasons contained a number of references to an “operation” when the activity concerned involved a special investigation: see GGFC at [30]. Secondly, in the legal submissions upon which the examiner relied, there was a number of references to the issue of a notice under s 29(1) of the Act, rather than the issue of a summons under s 28(1), which was what the examiner was actually purporting to do: see GGFC at [32]. The Full Court rejected the Commission’s submissions that: these were merely inconsequential slip-ups caused by using standard form documents; and it was apparent from the summons the examiner actually issued that he must have been aware that he was issuing a summons under s 28 in relation to a special investigation: see GGFC at [33]. In the end result in GGFC, the Full Court considered that the errors present in the documents were so significant that they could not be forgiven. Instead, it concluded that they bespoke strongly of “a fundamental misunderstanding of the statutory basis” upon which the examiner had issued the summons: see GGFC at [39]. It observed that the function of issuing such a summons under the Act was a serious one with serious consequences and, therefore, the Court should not go behind what was actually said in the documents before it: see GGFC at [37] to [39]. Accordingly, the Full Court declared invalid the summons the examiner had issued to GG.Consideration To begin with, I do not accept Ms Maharaj’s submission that the less demanding approach, described by the High Court in Wu Shan Liang, in relation to the reasons of administrative bodies such as the Refugee Review Tribunal, should be applied when one is construing the record of reasons of an examiner prepared under s 28(1A) of the Act. Instead, I consider that the extraordinary coercive powers that are being exercised by an examiner under the Act dictate that the record of reasons that he or she prepares should be “carefully construed” to ensure those powers have only been exercised in the circumstances, and for the purposes, that the Legislature intended. I, therefore, respectfully agree with the observations of Flick J in AB at [58] to this effect. Thus, it is most important, in my view, that the examiner’s record of reasons are closely examined to ensure that they disclose, on their face, that the examiner has given careful consideration to the source and nature of the statutory power being exercised, ie that it relates to a special intelligence operation or investigation so determined by the Board and he or she is justified, in all the circumstances, in using the Commission’s coercive powers to pursue that investigation or operation. In my view, this is entirely consistent with the purpose of making a record of reasons as discussed elsewhere in these reasons albeit in a different context: see at [100] above.

Ratio Decidendi

Legal Principle Established

Ms Maharaj submitted that the critical words of the resolution are: “… resolved, in terms of the instrument …”. She submitted that by these words, the Board had adopted the first draft instrument attached to the agenda and that draft instrument thereby became the determination. She submitted that this was entirely consistent with the decision in CC at [33]. She submitted that when one looks at the first draft instrument, (which became the determination), it addressed the concerns raised by Z, in particular clause 4 sets out the terms of the authorisation in accordance with the relevant provisions of the Act and clause 5 does likewise in relation to the determination.Consideration Mr Abbott is strictly correct in saying that the Board’s resolution of 27 July 2005, does not, on its face, determine to do anything. Instead, on its face, it only “authorise[s] the ACC to undertake a special investigation …”. Moreover, under s 7C(1)(c), the word “undertakes” appears to relate only to an intelligence operation, and not an investigation. However, in my view, the validity of the first determination (or indeed any of the determinations) cannot be determined by focusing on the words used by the Board in the resolution relating to the determination, but rather by construing the relevant provisions of the Act that specify what is required of the Board to make a valid determination under them; and then looking to see wherever the Board complied with those requirements. At this point, it is appropriate to interpolate what the High Court of Australia had to say about the task of construing the provisions of legislation in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”). In that case, the High Court held that a legislative provision should be construed: “by reference to the language of the instrument viewed as a whole”; by considering: “the context, the general purpose and policy of a provision and its consistency and fairness ...”, and beginning by: “… examining the context of the provision that is being construed”: at [69]. Where conflict appeared to arise from the language of particular provisions, the Court went on to observe that it: “must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions” and “… [r]econciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”” at [70].Finally, the Court held that: “a court construing a statutory provision must strive to give meaning to every word of the provision”: at [71]. In this instance, the relevant provisions of the Act that specify what is required of the Board when authorising an investigation and making a determination that the authorised investigation is a special investigation, are s 7C(1)(c), s 7C(1)(d), s 7C(3) and s 7C(4). I should add that Mr Abbott did not place any reliance on s 7C(4) for the purposes of this ground of challenge, so it is not presently necessary to consider the effect of those provisions. Furthermore, s 7C(2) only deals with a determination that an intelligence operation is a special operation, so its provisions are not relevant here where the Board was dealing with an investigation. The remaining provisions (above) give the Board the functions, among others, of authorising, in writing, the Commission to investigate federally relevant criminal activity (s 7C(1)(c)); and determining, in writing, whether such an investigation is a special investigation (s 7C(1)(d)). However, as I have already noted, before doing the latter, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective (s 7C(3)).