Case: AA v Board of the Australian Crime Commission [2009] FCA 642
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 In AA , I considered whether s 25D of the Acts Interpretation Act applied to an examiner's obligation in s 28(1A) of the Act to record in writing the reasons for his or her decision to issue a summons. I held that it did not. I said (at [29]-[30]): "For s 25D of the Acts Interpretation Act to be engaged, it must be established that s 28(1A) of the ACC Act imposes an obligation on an examiner to give written reasons for his or her decision to issue a summons. In my opinion, the applicant cannot establish that matter. Section 28 does not impose an obligation on an examiner to give reasons to an examinee or to give the written record of his reasons to an examinee: Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356. That decision was not challenged by the applicant. In the course of his decision in that case, Finn J said (at 363-364 [28]-[29]): 'It is important to note that the present application is not one for judicial review of the examiner's decision. Rather it asserts an entitlement to be provided with Mr Boulton's record of reasons &#8212; an entitlement the satisfaction of which is said to be a precondition to the holding of the examination. The short answer to the claim is that s 28(1A) in its setting gives no such right expressly and there is no conceivable basis in this context for implying such a right: cf R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681 at 686 ff; let alone for making the provision of such reasons a jurisdictional precondition to the holding of an examination. Neither context nor legislative purpose: cf Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 78 ALJR 585 at [11] ; and see generally Spigelman, 'The poet's rich resource: Issues in statutory interpretation' (2001) 21 Aust Bar Rev 224 ; lend any support to such an implication. The legislative judgment not to provide a right to reasons can only be regarded as deliberate, the more so as the ACC Act contemplates that decisions under this Act may be the subject of an application under the ADJR Act: s 57; but the ADJR [sic] gives no right to reasons under s 13 for such decisions. The clear purpose of s 28(1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an 'audit trail'. Under s 59 of the ACC Act, that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission that is constituted under Pt III of the ACC Act: and see ss 54 and 55 for that Committee's powers and duties. As is not uncommon with investigative agencies, the Parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the ACC's investigations with a measure of public accountability through a dedicated parliamentary oversight committee: see eg Intelligence Services Act 2001 (Cth). A right such as the applicant propounds would be an alien presence in such a statutory scheme.' In my opinion, an obligation to record in writing the reasons for a decision or act (which is the obligation imposed by s 28(1A) of the ACC Act) is quite different from an obligation to give written reasons for a decision (which is the obligation postulated by s 25D of the Acts Interpretation Act ). The latter, no doubt, includes giving written reasons to the person affected by the decision and publishing written reasons. The obligation in s 28(1A) to record in writing the reasons for the issue of a summons does not engage the obligation in s 25D of the Acts Interpretation Act to set out in an instrument giving the reasons the findings on material questions of fact and to refer to the evidence or other material on which those findings are based." As in AA , I do not think that s 25D of the Acts Interpretation Act was engaged in relation to an examiner's obligation to record in writing the reasons for the issue of the summons. Even if that is wrong, and it was engaged, a failure to comply with it would not lead to the invalidity of the summons by reason of s 28(8)(a). Reasons exercise of power The Act required the second respondent to be satisfied that it was reasonable in all the circumstances to issue the second summons: s 28(1A). The applicant made a number of complaints about the second respondent's reasons which I think, when properly analysed, were challenges to his decision to issue the second summons. There were no detailed submissions on the grounds upon which the decision to issue a summons under s 28(1) may be challenged on an application under s 39B of the Judiciary Act . I gave brief consideration to some of the issues which arise in AA (at [13]-[18]). I propose to proceed on the basis that if the second respondent's decision involved any of the matters which constitute jurisdictional error then it is invalid (see Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 176-180). In AA , the applicants applied for interlocutory injunctions restraining the holding of their examinations and I heard the applications after judgment was reserved in this proceeding. One of the determinations which was challenged in that case was in fact made at the Board meeting held on 25 June 2008 and Mr Negus signed the determination as Chair of the Board. The same argument was put as is put in this case and the same letter from Mr Keelty to Mr Negus dated 3 June 2008 was relied on by the respondents for the purposes of s 19(1) of the Australian Federal Police Act 1979 (Cth) ("AFP Act"). I held that Mr Negus had and was able to exercise all the powers and was required to perform all the functions and duties of the Commissioner on 25 June 2008. The Commissioner's letter dated 3 June 2008 established that he was absent from Australia and that Mr Negus was the next most senior member who was available. By virtue of s 19(4), the order of seniority was as determined by the Commissioner and it was a reasonable inference from the letter that the Commissioner had determined that Mr Negus was the next most senior member who was available. In AA , I rejected a submission that s 19(1) only operated in relation to powers, functions and duties under the AFP Act. I said (at [60]): "The applicant submits that s 19(1) is restricted to powers, functions and duties under the AFP Act and does not authorise the next most senior member to perform the role of presiding over a meeting of the Board under the ACC Act. The applicant referred to s 69C of the AFP Act in support of his argument. This section gives the Commissioner the power to delegate in writing to certain officers, all or any of the Commissioner's powers, functions or duties under the Act. I am unable to see how s 69C assists in the interpretation of s 19 of the AFP Act, which must be construed according to its terms. The applicant also referred to s 17(4) of the AFP Act, which provides that the Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by the Act as are determined by the Governor-General. The applicant suggested that this subsection is directed to powers, functions and duties of the Commissioner under other Acts. I do not think that is right. Section 17(4) is directed to terms and conditions of the Commissioner's office not provided for (that is, not dealt with) in the AFP Act. They are to be determined by the Governor-General. In my opinion, the words in s 19(1) of the AFP Act are quite general and there is no reason to restrict them to powers, functions and duties under the AFP Act." The same conclusion applies in this case. On 25 June 2008, Mr Negus was performing, for the time being, the duties of the office or position of Commissioner of the Australian Federal Police. In AA , the respondents submitted that fact engaged s 20 of the Acts Interpretation Act , which is in the following terms: "20 Mention of an officer in general terms Where in an Act any person holding or occupying a particular office or position is mentioned or referred to in general terms, such mention or reference shall unless the contrary intention appears be deemed to include all persons who at any time occupy for the time being, or perform for the time being the duties of, the said office or position." I accepted that argument. I said (at [62]-[64]): "The applicant submits that s 20 of the Acts Interpretation Act is not engaged by s 7B(3) and s 7E of the ACC Act because the reference to the Commissioner of the Australian Federal Police in s 7B(3) is not a mention or reference to a person holding or occupying a particular office or position in general terms . The submission is that a mention or reference in an Act to, for example, a director of a company or an officer of an organisation would be a mention or reference in general terms, but a mention or reference to an office occupied by one person is not a mention or reference in general terms . A similar issue arose in the case I have heard (see [12]) and I had the benefit of detailed submissions on the point in that case. Both parties referred me to the submissions in that case. In my opinion, the Commissioner of the Australian Federal Police is mentioned or referred to in the ACC Act in general terms , such that the deeming provision in s 20 of the Acts Interpretation Act is engaged. I have reached that conclusion for a number of reasons. First, there are some authorities that touch on s 20 of the Acts Interpretation Act and, so far as they go, they suggest that there is no distinction of the type advanced by the applicant: Smith Kline &amp; French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 75 per Gummow J; Registrar of Aboriginal Corporations v Barker (1997) 81 FCR 53 ; Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [44] per Bennett J; Gazal Apparel Pty Ltd v Davies (2007) 247 LSJS 391 at 396 [35] per Doyle CJ. Secondly, the subject of what is to be mentioned or referred to in general terms is not the office or position itself, but the person holding or occupying a particular office or position. There is no reason why that should be restricted only to those cases where the person is a member of a class of persons. The distinction suggested by the applicant seems to me to be an artificial one. It is not obvious why the deeming provision in s 20 of the Acts Interpretation Act would apply in the case of a deputy commissioner of an organisation, assuming there were two or more deputy commissioners, but not apply in the case of the commissioner of an organisation, or why it would not apply to a person lower down in the hierarchy of an organisation who happens to be the only holder of a particular office or position. Such, however, are the consequences of the interpretation of s 20 of the Acts Interpretation Act proposed by the applicant. Finally, the interpretation of s 20 which I think is the correct one, will not frustrate or impede the intention of Parliament because the deeming provision itself does not apply if a contrary intention appears in the relevant legislation. I should add that I do not think the ACC Act reveals a contrary intention in this case." The same conclusion applies in this case, subject to my consideration of the applicant's submission that the Act reveals a contrary intention. He referred to the composition of the Board (s 7B(2)), its important functions (s 7C), the quorum and voting requirements (s 7F and s 7G) and the provisions dealing with the passing of resolutions outside of Board meetings (s 7J). He submitted that the Act contains only a limited power to delegate (s 59A) and that the Commissioner's power in s 7E(b) of the Act to nominate a person to preside at a meeting of the Board is quite limited. To a point, those matters may be accepted, but I do not think that they reveal a contrary intention within s 20 of the Acts Interpretation Act . The applicant also submitted that if each State Act had an equivalent to s 19(1) of the AFP Act (a matter which was not established) then a consequence of the respondents' argument is that the Board might, at a particular meeting, be composed of quite junior members. It seems to me that is an unlikely possibility, but, in any event it can be said on the other side that it is unlikely that Parliament intended that the Board be unable to transact its business in the event that, for example, a number of police commissioners are absent from duty or from Australia. The determination is not invalid because Mr Negus was Chair of the Board meeting held on 25 June 2008. Purpose of the investigation Clause 9 of the determination sets out the purpose of the investigation (see [22] above).