Case: X v Australian Crime Commission [2004] FCA 1475 , 139 FCR 413
Outcome: cited
Applicants accept that they bear the onus of proving the invalidity of the notices: cf Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; X v Australian Crime Commission [2004] FCA 1475 at [22] , [2004] FCA 1475 ; 139 FCR 413 at 419 to 420 per Finn J; Kennedy v Baker [2004] FCA 562 at [85] to [86], [2004] FCA 562 ; 135 FCR 520 at 542 to 543 per Branson J. The Australian Crime Commission Act 2002 (Cth) repeals the National Crimes Commission Act 1982 (Cth) (s 3) and establishes the Australian Crime Commission (s 7(1)). Section 7A sets forth the important functions entrusted to the Commission as follows: The ACC has the following functions: (a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence; (b) to undertake, when authorised by the Board, intelligence operations; (c) to investigate, when authorised by the Board, matters relating to federally relevant criminal activity; (d) to provide reports to the Board on the outcomes of those operations or investigations; (e) to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board; (f) to provide advice to the Board on national criminal intelligence priorities; (g) such other functions as are conferred on the ACC by other provisions of this Act or by any other Act. Section 29 , the power presently in issue, provides as follows: Power to obtain documents (1) An examiner may, by notice in writing served on a person, require the person: (a) to attend, at a time and place specified in the notice, before a person specified in the notice, being an examiner or a member of the staff of the ACC; and (b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation. (1A) Before issuing a notice 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 notice. The record is to be made: (a) before the issue of the notice; or (b) at the same time as the issue of the notice; or (c) as soon as practicable after the issue of the notice. (2) A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation. (3) A person shall not refuse or fail to comply with a notice served on him or her under this section. (3A) A person who contravenes subsection (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years. (3B) Notwithstanding that an offence against subsection (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent. (3C) Where, in accordance with subsection (3B), a court of summary jurisdiction convicts a person of an offence against subsection (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year. (4) Subsections 30(3) to (5) and (9) apply in relation to a person who is required to produce a document or thing by a notice served on him or her under this section in the same manner as they apply in relation to a person who is required to produce a document or thing at an examination before an examiner. (5) A failure to comply with any of the following provisions does not affect the validity of a notice under subsection (1) of this section: (a) subsection (1A) of this section, in so far as that subsection relates to the making of a record; (b) section 29A, in so far as that section relates to a notice under subsection (1) of this section. Provision is made in s 46B for the appointment of an " examiner " by the Governor-General. An examiner has, " in the performance of his or her functions ... the same protection and immunity as a Justice of the High Court ": s 36(1). Section 29 had as its counterpart s 29 in the National Crime Authority Act 1984 (Cth).