Case: GG v Australian Crime Commission [2009] FCA 759
Outcome: followed
to the former submission, a similar submission was made and rejected by me in GG v Australian Crime Commission [2009] FCA 759. I said (at [31]): "The first ground of challenge to the second summons is that it failed to state that the applicant was required to give evidence as a "witness". It is submitted that the second summons was therefore deficient "on its face". The applicant referred to various sections in the Act which refer to a person appearing before an examiner in response to a summons as a witness: ss 25A(6), (7) and (8), 26, 27, 28 (heading), 30 and 31. I leave to one side the fact that a section heading is not part of an Act: Acts Interpretation Act 1901 (Cth) (" Acts Interpretation Act ") s 13(3). 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] FCAFC 101 ; (2004) 136 FCR 420). " The applicant referred to the practice books dealing with the procedure relevant to summary offences heard by justices of the peace. He referred to a distinction between a general form of a summons and a summons of a witness. That matter may be accepted, but it does not assist in the proper interpretation of the ACC Act. Under the ACC Act, all examinees appear as witnesses and there is no need to refer to that fact in the summons. Furthermore, it seems to me strongly arguable that, read as a whole, the summons in any event makes it clear enough that the applicant is summoned to give evidence as a witness. The summons bears the heading "Summons to Appear Before the Australian Crime Commission". It refers to attendance, "to give evidence". It refers to obligations in s 30(1), (2) and (3) of the ACC Act and the first two of those subsections refer to a person appearing as a witness at an examination. A similar argument was put in two matters I heard earlier this year. I rejected the argument. I take the liberty of repeating what I said in AA v Board of the Australian Crime Commission [2009] FCA 642 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." (See also GG v Australian Crime Commission [2009] FCA 759 at [34] - [37] .)