Case: SS v Australian Crime Commission (2009) 256 ALR 474
Outcome: followed
reject this submission for the same reasons I rejected the same submission in AA v Board of the Australian Crime Commission [2009] FCA 642 (" AA "). In that case, I said (at [45]-[48]): "The applicant submits that a person otherwise given the summons within the terms of s 29A(3) includes a person given the summons, not only by the Commission or an examiner, but by a person served with the summons, or by a person who has been given the summons by a person who in turn has received the summons from the person served with the summons. The applicant submits that if this proposition is correct then it follows that the Statement should set out the obligations and rights in s 29B(3) and (4) either because the words 'otherwise given, a summons' in s 29B(1) have a different meaning from the same words used in s 29A(3), or because a person 'otherwise given, a summons' can fall within the terms of both s 29B(1) on the one hand and s 29B(2) and (4) on the other. The respondents submit that the Act creates two classes, namely, a class of persons served with a summons or otherwise given a summons by the Commission or an examiner, and a class of persons to whom disclosure is made by a person in the first class or by a person otherwise in the second class. The obligations and rights of the first class are set out in s 29B(1) and (2) and the obligations and rights of the second class are set out in s 29B(3) and (4). On this analysis, the written statement referred to in s 29A(3) must set out the obligations and rights set out in s 29B(1) and (2), but need not set out the obligations and rights in s 29B(3) and (4). In my opinion, the construction of s 29A and s 29B of the ACC Act advanced by the respondents is the correct one. First, the respondents' construction means the words 'otherwise given, the summons' are given the same meaning in the two sections. Secondly, the construction is consistent with the distinction suggested by the structure of s 29B between a person directly involved with the Commission or an examiner in that he or she has been served with a summons or otherwise given a summons by the Commission or an examiner, on the one hand, and a person to whom disclosure has been made, on the other. Thirdly, the respondents' construction avoids the practical difficulties that the applicant's construction creates in terms of the obligation placed on the Chief Executive Officer of the Commission by s 29A(5). This issue was also an issue considered by Jagot J in SS . Again, I have reached my conclusions independently of her Honour's decision. However, with respect, her Honour's reasons neatly summarise why in this case the applicant's submission must be rejected and I take the liberty of repeating them. Her Honour said (at [123]-[127]): 'Three matters are apparent from this scheme. First, the scheme distinguishes between a person 'served, or otherwise given' a summons or notice and a person to whom a person 'served, or otherwise given' a summons or notice makes disclosure. The former is subject to ss 29B(1) and (2). The latter is subject to ss 29B(3) and/or (4). Consideration of the opening words of the provisions of ss 29B(1) to (4) supports this distinction (that is, the fact that s 29B(1) uses the words "served, or otherwise given" whereas ss 29B(3) and (4) refer to persons to whom disclosure has been made or information disclosed). This distinction indicates that the Act establishes two classes of persons for the purpose of these provisions, namely: - (i) persons who are served or otherwise given a summons or notice, and (ii) persons who are the recipient of disclosure by a person served or otherwise given a summons or notice, but who have not themselves been served or otherwise given a summons. This scheme is inconsistent with SS's case that the words 'otherwise given' in s 29A(3) should be read as applying to a person who is the recipient of disclosure by a person served or otherwise given a summons or notice. Second, treating a person to whom disclosure has been made about a summons or notice as a person 'otherwise given' the summons or notice under s 29A(3) undermines the careful scheme of obligations imposed by s 29B. The reason for this is that the words 'or otherwise given' must take the same meaning wherever they appear in the ACC Act. Hence, s 29B(1), on SS's construction, would apply to a person to whom disclosure is made (and who happens to be given a copy of the summons or notice as part of that disclosure) under s 29B(2). Yet such a person would also be subject to the obligations imposed by s 29B(3). Similarly, if that person to whom disclosure is made under s 29B(2) (and who happens to be given a copy of the summons or notice as part of that disclosure) themselves makes a disclosure under s 29B(4) (and happens to be given a copy of the summons or notice as part of that disclosure) the person who is the recipient of the disclosure under s 29B(4) would also become a person subject to the obligations under s 29B(3), yet also (on SS's case) s 29B(1) as well. This makes the statutory scheme nonsensical. Third, and as the ACC pointed out, if SS's construction is correct then the CEO's obligation in s 29A(5) is unworkable. The CEO will know the persons served or otherwise given the summons by the ACC. The CEO cannot know the persons to whom a disclosure has been made in accordance with ss 29B(2) or (4). Such a disclosure is not a matter for the CEO. It is a matter for the person served or otherwise given the summons or notice by the ACC and the recipient of the disclosure. Yet SS's construction would require the CEO to give written notice of the cancellation of the notation to persons both served or otherwise given the summons or notice by the ACC and persons (unknown to the CEO) to whom such a person made disclosure (and so on in accordance with s 29B(4)). These considerations indicate that the ACC's submission must be accepted.'" "SS" is the decision of Jagot J in SS v Australian Crime Commission (2009) 256 ALR 474. Reasons adequacy of record I went on to say that, even if s 25D applied, a failure to set out findings on material questions of fact and refer to the evidence or other material on which those findings were based would not, because of s 28(8) , lead to invalidity. I said (at [31]-[34]): "The applicant's argument must fail for another reason, even if (contrary to my conclusion) s 28(1A) of the ACC Act engaged the obligation in s 25D of the Acts Interpretation Act . If I assume s 25D was engaged and I assume the examiner's reasons did not satisfy the requirements of s 25D , the applicant's argument must nevertheless fail because s 28(8)(a) of the ACC Act provides that a failure to comply with s 28(1A), 'in so far as that subsection relates to the making of a record' does not affect the validity of a summons. The applicant submits that s 28(8)(a) only relates to the time when the record is made. In other words, the applicant submits that s 28(8)(a) is only engaged where the record is not prepared at one of the times specified in s 28(1A)(a), (b) and (c). It is not engaged, so the argument proceeds, where the failure relates to the contents of the record. I see no justification for drawing such a distinction. The words describing the failure as one relating to the 'making of [the] record' are wide enough to cover obligations both as to the time at which the record is made and as to its contents. The applicant referred to the fact that the provisions specifying times in s 28(1A), that is to say (a), (b) and (c), were part of the same amendment, that is, the Australian Crime Commission Amendment Act (No 168 of 2007 ) (Cth), which introduced s 28(8). The applicant submits that I should infer from that fact that s 28(8)(a) relates only to the time at which the reasons are to be recorded in writing. I was referred to the Explanatory Memorandum for the Australian Crime Commission Amendment Bill 2007. I reject this contention. For the reasons I have given, there is no reason to read down the words in s 28(8)(a) and in fact the Explanatory Memorandum supports the construction which I think is the proper one. The explanation for the introduction of s 28(8) of the ACC Act is as follows: 'Item 5 Subsections 28(1A) and 28(2) and section 29A prescribe a range of technical requirements for issuing a summons under subsection 28(1). Subsection 28(1A) requires an examiner to record in writing the reasons for the issue of the notice. Subsection 28(2) provides that a summons issued under subsection 28(1) must be accompanied by a copy of the determination by the ACC 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. Section 29A sets out the circumstances in which an examiner who issues a summons under section 28 is required to include in the summons a notation to the effect that the disclosure of information about the summons, or any official matters connected with it, is prohibited (except in circumstances specified in the notice). The section sets out when a notation must or may be made, prescribes the form and content of the notation, and provides for cancellation of the notation. This item adds a new subsection 28(8) to the ACC Act to provide that a failure to comply with the requirements set out in subsections 28(1A) to the extent that the subsection relates to the making of a record and 28(2) and section 29A of the ACC Act does not render a summons issued under subsection 28(1) invalid. The purpose of this amendment is to ensure that ACC operations/investigations are not undermined by reason of an examiner's failure to comply with these technical requirements. This provision does not apply to substantive procedural obligations, such as the requirements under subsection 28(1A) that the examiner must be satisfied that it is reasonable in all the circumstances to issue the summons and under subsection 28(3) that the summons should, other than in limited circumstances, set out the general nature of the matters in relation to which the examiner intends to question the person.' I do not think the second ground has sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant. The issues raised in the second ground were the same as issues considered by Jagot J in SS . I have decided the issues in the same way as her Honour (see [88]-[92])."