Case: S v ACC [2005] FCA 1310 ; (2005) 225 ALR 123
Outcome: referred to
The affidavit of the third respondent set out in [12] above attracts some comment. Paragraph 3 (after the first sentence, which relates to s 28(1A)) asserts that the summons provides the information required by s 28(3). There would then be no need for the proviso in s 28(3) to be activated, but par 4 of the affidavit does so. It may do so because of the use of the word 'including' so as to refer to those matters which notice has not been given. If it does not, in my view, those paragraphs may not accurately reflect the operation of s 28(3) because the third respondent has treated the obligation to provide information about the general nature of the matters to be the subject of questions as qualified in a quantitative way by the proviso upon that obligation. In other words, the third respondent has treated the measure of reasonable practicability as dependent upon, or qualified by, any prejudice to the effectiveness of the special investigation. It is not clear that reasonable practicability is qualified in that way. The measure of reasonable practicability is an objective one, not in its terms dependent upon the satisfaction of the examiner, unlike the applicability of the proviso itself. see S v ACC at [16]. At a practical level, however, the determination of what is required to be disclosed is nevertheless made by the examiner: See S v ACC at [38]-[39]. 24 Be that as it may, in this matter, the summons in my view does disclose the general nature of the matters upon which the proposed examination is to occur. If, on the other hand, it does not adequately do so, the third respondent has formed the view that it should not do so. 25 The proviso in s 28(3), as I pointed out in S v ACC (2005) ALR 123 ( S v ACC at first instance ) at [38], puts the responsibility for deciding whether setting out the general nature of the matters in relation to which the examiner intends to question the examinee would prejudice the effectiveness of the examination upon the examiner. That is the meter by which is measured the existence of such prejudice. It is a meter which is to be used only after the examiner has been satisfied that the issue of the summons is reasonable in all the circumstances and has recorded in writing the reasons for the issue of the summons: see s 28(1A). 26 The applicant accepts that he bears the onus of proving the third respondent did not have the necessary satisfaction specified by s 28(3) and to which he has deposed. For the reasons I gave in S v ACC at first instance at [36]-[40], I am not persuaded that the third respondent did not have the level of satisfaction to which he deposed. No particular criticism of his affidavit was made in that regard. He gives a reason for his satisfaction. Although very generally expressed, it is comprehensible and rational. He was obliged to, and did (according to his affidavit), first satisfy himself that it was reasonable in all the circumstances to issue the summons. To form such a view necessarily involves a significant awareness of the nature and progress of the special ACC investigation. 27 Consequently, in my judgment, that line of attack upon the validity of the summons must also fail. 28 There remains the attack based upon the 'impermissible delegation' by the Board (grounds (b) and (c)). They can be dealt with together, as there is no claim by the respondents that the Board has delegated, or is entitled to delegate, its functions under s 7C(1)(e) of the ACC Act. 44 The ACC Act is the outcome of the substantial amendments to the National Crime Authority Act 1984 (Cth) effected by the Australian Crime Commission Act 2002 (Cth). The Second Reading Speech for the Australian Crime Commission Establishment Bill 2002 (Commonwealth Parliamentary Debates House of Representatives, 26 September 2002, pp 7328- 7330) indicates that the ACC was intended by the Commonwealth, the States and the Territories to replace the National Crime Authority, the Office of Strategic Crime Assessments and the Australian Bureau of Criminal Intelligence; and the ACC was intended to result in more effective national law enforcement operations in conjunction with state and territory police forces. The ACC was intended thereby to enhance law enforcement co-ordination at a national level, by setting up a co-ordinated national criminal intelligence framework, and to improve the ability to combat serious and organised crime across jurisdictional boundaries. See S v ACC at [6]. 45 It is clear that the Board is constituted to reflect and have regard to those various interests. It is to be no mere cypher. Its functions under s 7C indicate that it has overall control of the ACC in the performance of its functions. It decides on national criminal intelligence priorities and it provides strategic direction to the ACC and determines priorities for the ACC: s 7C(1)(a) and (b). Its functions under s 7C(1)(c) and (d) are referred to above. The Board may determine under s 7C(1)(d) that an authorised investigation is a special investigation only if at least nine Board members (including at least two eligible Commonwealth Board members) vote for it: s 7G(4). Correlative provisions addressing the ACC's functions in s 7A reflect that. The ACC may only conduct an intelligence operation or an investigation into federally relevant criminal activity when authorised by the Board: s 7A(b) and (c). It must provide reports to the Board on the outcomes of those operations or investigations: s 7B(d). It must provide strategic criminal intelligence assessments to the Board and its advice on national criminal intelligence priorities: s 7A(e) and (f). The Board in turn may disseminate to the appropriate agencies the strategic criminal intelligence assessments made by the ACC. 46 The Board must also report to the Inter-Governmental Committee on the ACC's performance: s 7C(l)(h). The Inter-Governmental Committee constituted under s 8 comprises the designated Ministers of the Commonwealth and of each participating State. Its functions include monitoring generally the work of the ACC and of the Board, and the oversight of their strategic direction: s 9(1)(a) and (b). It is notified promptly of a determination by the Board that an intelligence operation is a special operation or that an authorised investigation is a special investigation under s 7C(2) or (3) respectively in the performance of the Board's functions, and it may then seek further information concerning the determination, and it may revoke the determination: s 9(2) and (7). Its oversight of the Board and of the ACC is thus at Ministerial level, but it is nonetheless a significant role.