Case: SS v Australian Crime Commission [2009] FCA 580
Outcome: followed
have been able to reach that conclusion largely by a process of construing the relevant provisions of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). In addition, there are two other matters which have assisted me in reaching the conclusions which I have, and they are matters which will not often be found on an application of this nature. The first is that, as to three of the six grounds of review, very similar points were raised in a case which I heard in March of this year (GG v Australian Crime Commission and Another SAD 176 of 2008). I had the benefit of full submissions on those points in that matter and judgment in the case will be delivered shortly. The second is that, as to two of the six grounds of review, a judge of this Court has considered the substance of those grounds of review and delivered a judgment: SS v Australian Crime Commission [2009] FCA 580 (" SS "). The five original grounds of review I turn now to consider the first five grounds of review advanced by the applicant. Ground 1 "The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that having regard to such reasons as the Third Respondent did record in writing, he could not reasonably have been satisfied (as he was required to be by s 28 (1A) of the Act) that it was reasonable to issue the summons." Section 28 of the ACC Act is in the following terms, relevantly: "28 Power to summon witnesses and take evidence (1) An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons. (1A) Before issuing a summons 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 summons. The record is to be made: (a) before the issue of the summons; or (b) at the same time as the issue of the summons; or (c) as soon as practicable after the issue of the summons. (2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the 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. (3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation. ... (7) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation. (8) A failure to comply with any of the following provisions does not affect the validity of a summons 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) subsection (2) of this section; (c) section 29A, in so far as that section relates to a summons under subsection (1) of this section." The respondents did not suggest that the decision by the examiner to issue the summons was not a decision capable of review in the exercise of the jurisdiction given to this Court by s 39B of the Judiciary Act 1903 (Cth), or on one of the grounds set out in s 5 or s 6 of the ADJR Act. 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]). I do not need to discuss the comity principle because I have reached the conclusions I have expressed independently of the decision of Jagot J in SS . Ground 3 "The decision to issue the Summons is invalid, and the Summons issued pursuant to that decision is of no effect, in that the Statement annexed to the Summons (Annexure B) does not conform to, or comply with, s 29A (3) of the Australian Crime Commission Act 2000 [sic] (Cth) (the Act), as it must." Sections 29A and 29B of the ACC Act are in the following terms: " 29A Disclosure of summons or notice etc. may be prohibited (1) The examiner issuing a summons under section 28 or a notice under section 29 must, or may, as provided in subsection (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation. (2) A notation must not be included in the summons or notice except as follows: (a) the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice: (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an operation or investigation; (b) the examiner may include the notation if satisfied that failure to do so might prejudice: (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an operation or investigation; (c) the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest. (3) If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice. (4) If, after the ACC has concluded the operation or investigation concerned: (a) no evidence of an offence has been obtained as described in subsection 12(1); or (b) evidence of an offence or offences has been assembled and given as required by subsection 12(1) and the CEO has been advised that no person will be prosecuted; or (c) evidence of an offence or offences committed by only one person has been assembled and given as required by subsection 12(1) and criminal proceedings have begun against that person; or (d) evidence of an offence or offences committed by 2 or more persons has been assembled and given as required by subsection 12(1) and: (i) criminal proceedings have begun against all those persons; or (ii) criminal proceedings have begun against one or more of those persons and the CEO has been advised that no other of those persons will be prosecuted; all the notations that were included under this section in any summonses or notices relating to the operation or investigation are cancelled by this subsection. (5) If a notation is cancelled by subsection (4), the CEO must serve a written notice of that fact on each person who was served with, or otherwise given, the summons or notice containing the notation. (7) If: (a) under this section, a notation in relation to the disclosure of information about: (i) a summons issued under section 28; or (ii) a notice issued under section 29; or (iii) any official matter connected with the summons or notice; has been made and not cancelled; and (b) apart from this subsection, a credit reporting agency (within the meaning of section 11A of the Privacy Act 1988 ) would be required, under subsection 18K(5) of the Privacy Act 1988 , to make a note about the disclosure of the information; such a note must not be made until the notation is cancelled. (8) In this section: official matter has the same meaning as in section 29B. 29B Offences of disclosure (1) A person who is served with, or otherwise given, a summons or notice containing a notation made under section 29A must not disclose: (a) the existence of the summons or notice or any information about it; or (b) the existence of, or any information about, any official matter connected with the summons or notice. Penalty: 20 penalty units or imprisonment for one year. (2) Subsection (1) does not prevent the person from making a disclosure: (a) in accordance with the circumstances, if any, specified in the notation; or (b) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or (c) to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or (d) if the person is a body corporate&#8212;to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or (e) if the person is a legal practitioner&#8212;for the purpose of obtaining the agreement of another person under subsection 30(3) to the legal practitioner answering a question or producing a document at an examination before an examiner. (3) If a disclosure is made to a person as permitted by subsection (2) or (4), the following provisions apply: (a) while he or she is a person of a kind to whom a disclosure is so permitted to be made, he or she must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by subsection (4); (b) while he or she is no longer such a person, he or she must not, in any circumstances, make a record of, or disclose the existence of, the summons, notice or matter, or disclose any information about any of them. Penalty: 20 penalty units or imprisonment for one year. (4) A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information: (a) if the person is an officer or agent of a body corporate referred to in paragraph (2)(d): (i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or (ii) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or (iii) to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or (b) if the person is a legal practitioner&#8212;for the purpose of giving legal advice, making representations, or obtaining assistance under section 27 , relating to the summons, notice or matter; or (c) if the person is a legal aid officer&#8212;for the purpose of obtaining legal advice or representation relating to the summons, notice or matter. (5) This section ceases to apply to a summons or notice after: (a) the notation contained in the summons or notice is cancelled by subsection 29A(4); or (b) 5 years elapse after the issue of the summons or notice; whichever is sooner. (6) A reference in this section to disclosing something's existence includes disclosing information from which a person could reasonably be expected to infer its existence. (7) In this section: legal aid officer means: (a) a member, or member of staff, of an authority established by or under a law of a State or Territory for purposes including the provision of legal assistance; or (b) a person to whom the Attorney-General has delegated his or her powers and functions under section 27. official matter means any of the following (whether past, present or contingent): (a) the determination referred to in subsection 28(2); (b) an ACC operation/investigation; (c) an examination held by an examiner; (d) court proceedings." In the case of the applicant, the summons contained the following note: "Pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 , disclosure of information about this summons, or any official matter connected with it, is prohibited except to the Federal Court of Australia and the Attorneys-General of the Commonwealth and the States for the purposes of any application challenging the validity of the summons, in which case the applicant's name is to be suppressed and replaced by a letter and/or number pseudonym, and where section 29B of the Act does not prevent such disclosure." 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." In my opinion, the third ground does not have sufficient prospects of success to justify an interlocutory injunction restraining the examiner from conducting the proposed examination of the applicant. Ground 4 "The decisions are invalid in that the information they were based on was unlawfully obtained, and not permitted by the Act to be relied on for the purpose of issuing a Summons pursuant to s 28 of the Act. The information relied on was obtained in the conduct of a special investigation purportedly authorized by an instrument of the First Respondent (Board) made on 25 July 2005 (the 2005 Determination), and authorizing that investigation until 30 June 2006. That date was successively extended on 7 June 2006, 14 June 2007, and 25 June 2008 by instruments of extension which were invalid for failure to comply with s 7E of the Act." The Board made an Authorisation and Determination entitled "Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005" on 27 July 2005. I will refer to this as the 2005 Authorisation and Determination. The 2005 Authorisation and Determination is signed by Mr M J Keelty, who was the Commissioner of the Australian Federal Police and Chair of the Board, and it authorised an investigation by the Commission until 30 June 2006.