Case: CC Pty Ltd v Australian Crime Commission [2007] FCAFC 96 ; (2007) 159 FCR 282
Outcome: cited
terms of the facts, the starting point is an authorisation and determination made by the Board of the Australian Crime Commission ("the Board") at a meeting of the Board held on 13 May 2003. The authorisation and determination was called the "Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003" and the authorisation was expressed to be valid until 31 May 2004. I will refer to this as the 2003 authorisation and determination. It is common ground between the parties that the Board resolution making this authorisation and determination was passed at a Board meeting held on 13 May 2003 (see CC Pty Ltd v Australian Crime Commission [2007] FCAFC 96 ; (2007) 159 FCR 282). It appears that on 15 May 2003, the Chair of the Board signed a copy of the authorisation and determination, mistakenly asserting that it was made by resolution of the Board on 15 May 2003. The 2003 authorisation and determination was varied by a determination made by the Board by resolution passed on 4 December 2003. The determination was called the "Australian Crime Commission Operations and Investigations (Participants) Determination 2003". I will refer to this as the 2003 variation. Under the ACC Act, the Board may authorise in writing an investigation and may determine in writing that the investigation is a special investigation (s 7C(1)(c) and (d) and (3)). It may also determine in writing the class or classes of persons who are to participate in such an investigation (s 7C(1)(e)). In the 2003 authorisation and determination, the classes of persons to participate in the investigation were specified in Schedule 2 of the document. The purpose and effect of the 2003 variation was to make changes to the classes of persons who were to participate in the special investigation. After setting out certain preliminary matters, clause 4 of the 2003 variation stated: " 4. Classes of persons to participate in operation (1) For paragraph 7C(1)(e) of the Act, the classes of persons to participate in the intelligence operation, or the investigation into a federally relevant criminal activity, to which an Instrument mentioned in Schedule 1 applies are the classes mentioned in Schedule 2. (2) For the avoidance of doubt, a provision in an Instrument mentioned in Schedule 1 that specifies the classes of persons to participate in the operation or investigation to which the Instrument relates is revoked and replaced by this Determination. Schedule 1 Instruments amended by this Determination (section 4) ... Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003 ... Schedule 2 Classes of persons (section 4) The CEO. Each person who is: (a) a member of the staff of the ACC; and (b) identified in writing by the CEO, or a delegate of the CEO, as a person whose duties include providing services in relation to ACC operations and investigations. Each person who is: (a) an officer or member of the staff of any of the following agencies: (i) an agency of which a Board member is head (other than the CEO) in his or her capacity as a Board member; (ii) the Australian Taxation Office; (iii) AUSTRAC; (iv) the Department of Immigration and Multicultural and Indigenous Affairs; (v) the New South Wales Crime Commission; (vi) the Queensland Crime and Misconduct Commission; and (b) identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACC operations and investigations."