mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Trade Practices Commission v Sterling (1980) 28 ALR 497
Outcome: referred to
Section 65A of the Act was inserted in 2000, see Financial Sector Legislation Amendment Act (No 1) 2000 , s 20. Under the former legislation, ss 7 and 66 of the Act contained penalty provisions only. The inclusion of s 65A was designed to allow APRA, subject to Court approval, to act pre-emptively to stop undesirable activities rather than simply acting to impose punishment after the damage had occurred: see Explanatory Memorandum, Financial Sector Legislation Amendment Act (No 1) 2000 . Many of its sub-sections are drafted in the same or substantially the same terms as provisions to be found in other Commonwealth legislation. Comparisons can be drawn with s 80 of the Trade Practices Act 1974 (Cth), s 12GD of the Australian Securities and Investment Commission Act 1989 (Cth), and s 1324 of the Corporations Law 1989 (Cth). The constitutional validity of these equivalent provisions has been upheld by Court decisions spanning many years. Section 80(1) of the Trade Practices Act , which corresponds with s 65A(1) was held by Lockhart J to be a valid law of the Commonwealth Parliament in Trade Practices Commission v Sterling (1980) 28 ALR 497 at 517-9. An appeal from his Honour's decision was dealt with by a Full Court. The appellant did not, on appeal, seek to argue that his Honour's decision as to the validity of s 80(1) was wrong. It was, however, argued that sub-ss (4) and (5) of s 80 which contained provisions equivalent to those to be found in s 65A(3) were invalid, being beyond constitutional power. These submissions were rejected by the Full Court: see Sterling v Trade Practices Commission (1981) 51 FLR 1 at 7-9.
Case: C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189
Outcome: cited
The principles have been applied and explained in a large number of authorities. They include Mobil Oil of Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, Macquarie Generation v Coal &amp; Allied Industries Ltd [2001] FCA 1349 , C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189 and Reebok v SOCOG [2000] NSWSC 295.
Case: Hadid v Lenfest Communicaitons Inc (1996) 70 FCR 403
Outcome: cited
The principal factors which inform the exercise of the discretion have been stated in the authorities. A party to litigation is entitled to know the case it has to meet and to properly instruct solicitors and counsel. The nature and content of the documents, the degree of confidentiality of the information and the risk that the rival will use it to the detriment of the other party are important factors to be weighed in the balance; Mobil Oil at 39-40; Reebok at [43]; Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 410-411.
Case: Macquarie Generation v Coal &amp; Allied Industries Ltd [2001] FCA 1349
Outcome: cited
The principles have been applied and explained in a large number of authorities. They include Mobil Oil of Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, Macquarie Generation v Coal &amp; Allied Industries Ltd [2001] FCA 1349 , C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189 and Reebok v SOCOG [2000] NSWSC 295.
Case: Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Outcome: referred to
The principles have been applied and explained in a large number of authorities. They include Mobil Oil of Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, Macquarie Generation v Coal &amp; Allied Industries Ltd [2001] FCA 1349 , C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189 and Reebok v SOCOG [2000] NSWSC 295. 14 In Mobil Oil at 38, Hayne JA pointed out that ordinarily, the fact that documents are confidential is not a bar to inspection by the other party. He said, however, that where the parties are trade rivals, different considerations arise. 15 What underlies Hayne JA's analysis is his statement that the principles of a trade rival cannot forget the secret information once it is revealed. Thus, the value of the commercially sensitive information will be lost unless it is protected by an appropriate access regime. The implied obligation not to use the documents other than for the purpose of the proceedings is thought to be insufficient, as between trade rivals, to permit unrestricted access. 16 The balancing exercise to which Hayne JA referred in Mobil Oil at 39-40 involves weighing the needs of a party to litigation against the "legitimate concern" of a trade rival. 17 The principal factors which inform the exercise of the discretion have been stated in the authorities. A party to litigation is entitled to know the case it has to meet and to properly instruct solicitors and counsel. The nature and content of the documents, the degree of confidentiality of the information and the risk that the rival will use it to the detriment of the other party are important factors to be weighed in the balance; Mobil Oil at 39-40; Reebok at [43]; Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 410-411.
Case: Reebok v SOCOG [2000] NSWSC 295
Outcome: cited
The principles have been applied and explained in a large number of authorities. They include Mobil Oil of Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, Macquarie Generation v Coal &amp; Allied Industries Ltd [2001] FCA 1349 , C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189 and Reebok v SOCOG [2000] NSWSC 295. 17 The principal factors which inform the exercise of the discretion have been stated in the authorities. A party to litigation is entitled to know the case it has to meet and to properly instruct solicitors and counsel. The nature and content of the documents, the degree of confidentiality of the information and the risk that the rival will use it to the detriment of the other party are important factors to be weighed in the balance; Mobil Oil at 39-40; Reebok at [43]; Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 410-411.
Case: P v Australian Crime Commission [2006] FCAFC 54
Outcome: followed
The Board of the ACC is established by s 7B of the ACC Act. It comprises the Commissioner of the Australian Federal Police, the Secretary of the Department, the Chief Executive Officer of the Australian Customs Service, the Chairperson of the Australian Securities and Investments Commission, the Director-General of Security under the Australian Security Intelligence Organisation Act 1979 (Cth), the Commissioner or head of the police force of each State and of the Northern Territory and of the Australian Capital Territory, and the CEO of the ACC. A brief description of the governance of the ACC is given in P v Australian Crime Commission [2005] FCAFC 54 at [28] ( P v ACC ). 4 On 15 May 2003 the Board of the ACC made the Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003 (the first Instrument). Clause 4 of the first Instrument expressly authorised the investigation of the specified matter until 31 May 2004 and requested a report by 31 May 2004. Clause 5 of the first Instrument expressly determined that the investigation should be a special investigation. It recorded that the Board had considered the matter required by s 7C(3) to have been considered. It also contained the information required by s 7C(4). The first Instrument on its face records that it was made at 8.02 am on 15 May 2003 and signed by the Chair of the Board on that date. 5 On 28 April 2004 the Board of the ACC made the Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) Amendment No 1 of 2004 (the second Instrument). The second Instrument comprised only three clauses: its name; its time of commencement (upon its making); and its operative clause. Clause 3 of the Second Instrument amended clause 4 of the first Instrument by substituting 31 May 2005 for 31 May 2004.
Case: S v Australian Crime Commission [2006] FCAFC 5
Outcome: followed
The Full Court in S v Australian Crime Commission [2006] FCAFC 5 has determined that issue adversely to the applicant. I must follow that decision. Consequently, I reject the challenge to the constitutional validity of s 4A. 19 The discrete challenge to the validity of the third Instrument (ground (a)) is that it does not comply with the requirements of s 7C(3) and (4) of the ACC Act because it does not itself express a determination in writing that the investigation is a special investigation, because it does not on its face record that the Board has considered whether ordinary police methods of investigation into the matters are likely to be effective, and because it does not itself contain the information required by s 7C(4).
Case: X v ACC [2004] FCA 1475
Outcome: followed
The Full Court in P v ACC has decided those contentions adversely to the applicant. The third Instrument is to be read with the first Instrument and the second Instrument, and in that way it meets the requirements of s 7C(3) and (4). There is no requirement that a determination in writing must record that the Board has considered whether ordinary police methods of investigation into the matters are likely to be effective. There is no evidence to suggest, and so no reason to conclude, that the Board did overlook that issue at the time of making the second Instrument or the third Instrument, assuming that it was necessary for it to do so at those times bearing in mind that those Instruments extended the period of the authorisation under s 7C(1)(c) but may not have constituted a fresh determination under s 7C(1)(d). I must follow that decision. I note that Finn J in X v ACC [2004] FCA 1475 reached the same conclusion. 21 The challenge to the validity of the summons because it does not comply with the qualified obligation imposed by s 28(3) (ground (e)) must also fail. The obligation is to set out the general nature of the matters in relation to which the proposed questioning is to be directed, but only so far as is reasonably practicable to set out that information. The concept of reasonable practicability is part of the measure of the information required to be provided. The obligation to provide that information does not arise where the examiner who issues the summons is satisfied that setting out the required information would prejudice the effectiveness of the special ACC investigation. 22 In fact, the summons does contain some information. It identifies that the proposed evidence is to be of 'matters relating to federally relevant criminal activity, including your knowledge of the activities of [a described group] between [a specified year] and the present'. The reference to federally relevant criminal activity is, of course, necessarily rhetorical; it is a pre-condition to a valid determination and so to a valid summons. It does not usefully convey information about the topics of the proposed examination. The balance of that descriptive material does so. The use of the word 'including' might be read as suggesting that there are other matters to be the subject of questioning which have not been specified, but in context I think it merely preserves the position expressly permitted by s 28(3) that questions outside the scope of the nature of the specified matters is nevertheless permitted.
Case: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: referred to
The respondents have not invoked s 16 of the ACC Act as a response to the claim. That is presumably because they accept (at least for the purposes of this matter) that the applicant is entitled to challenge the validity of the summons by claiming that there is no valid determination. In adopting that position, they accept (for the purposes of this matter) that s 7C(1)(e) places an inviolable restraint upon the exercise of the power to determine that an authorised investigation is a special investigation: see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76]. 32 The respondents' contention is that the Board did not, by cl 6 and Sch 2 of the first Instrument, delegate its function under s 7C(1)(e) but simply performed the function required by s 7C(1)(e). They accept for the purposes of this application that the function of determining the class or classes of persons to participate in the investigation is not delegable. 33 Consequently, the only issue is whether the Board by the first Instrument properly performed that function.
Case: King Gee Clothing Company Proprietary Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184
Outcome: discussed
King Gee Clothing Company Proprietary Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 ( King Gee )concerned the process of price control by regulation during the Second World War. The issue was whether Prices Regulation Order No 1816 was a valid exercise of power by the Commissioner of Prices under the National Security (Prices) Regulations . Regulation 23(1) relevantly empowered the Commissioner of Prices by order 'to fix and declare the maximum price at which goods may be sold'. The Prices Order prescribed the prices at which certain items of men's clothing might be sold by a formula providing for an allowance of a percentage margin on cost; 'cost' was defined to include an amount for 'indirect labour', to be calculated as a percentage of the 'direct labour'; various terms then described how those elements were to be calculated. The High Court (Rich, Starke, Dixon and Williams JJ) held that the Prices Order was not a valid exercise of the power granted by reg 23(1) because it required estimates or discretionary apportionments as a matter of judgment. The controlling price could not itself be calculated. Obviously there is no direct analogy with the present issue. 39 In my view, the significant feature of the case is the observation for present purposes of Dixon J at 196 that the validity of the Prices Order depended upon the meaning and operation of reg 23(1). His Honour concluded at 197 that, in its context, reg 23(1) required that a Prices Order prescribe standards or criteria from which a price may be calculated. The context included the heavy criminal sanctions for its contravention, as well as reg 23(1A) which described various ways in which the fixing and declaring of maximum prices might be made. It therefore, as his Honour said at 197 required a 'certain objective standard'. 40 In Cann's Proprietary Limited v The Commonwealth (1946)71 CLR 210 the High Court (Latham CJ, Starke and Williams JJ) declared invalid a different Prices Order purportedly made under reg 23(1) of the National Security (Prices) Regulations for similar reasons, although Dixon J dissented in the result. I do not consider that the reasoning further informs my judgment in this matter, beyond the assistance to be derived from King Gee .
Case: Cann's Proprietary Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210
Outcome: referred to
In Cann's Proprietary Limited v The Commonwealth (1946)71 CLR 210 the High Court (Latham CJ, Starke and Williams JJ) declared invalid a different Prices Order purportedly made under reg 23(1) of the National Security (Prices) Regulations for similar reasons, although Dixon J dissented in the result. I do not consider that the reasoning further informs my judgment in this matter, beyond the assistance to be derived from King Gee .
Case: Brudenell v Nestl&eacute; Company (Australia) Ltd [1971] VR 225
Outcome: discussed
Counsel for the applicant also referred to Brudenell v Nestl&eacute; Company (Australia) Ltd [1971] VR 225. In that case, the defendant had been charged with selling instant coffee which was adulterated, contrary to s 238 of the Health Act 1958 (Vic). The adulteration was alleged because the instant coffee did not comply with the standard prescribed by reg 48(8)(a) of the Food and Drug Standards Regulations 1966 (Vic) that instant coffee should contain no more than a specified percentage of residue in boiling water. The prescribed standard was held to be ultra vires because it did not prescribe a standard for, or define, a food, drug or substance. The scientific evidence showed the percentage of residue varied depending upon the proportions of the coffee and boiling water used, and the regulation did not define the proportions of coffee and boiling water to be used to determine the residue. Consequently, Menhennitt J concluded at 235 in the light of the evidence that no standard had been prescribed, because it was impossible to ascertain to what extent the addition of any substance was prohibited.
Case: Racecourse Co-operative Sugar Association Limited v Attorney-General (Queensland) [1979] HCA 50 ; (1979) 142 CLR 460
Outcome: discussed
Finally, counsel referred to Racecourse Co-operative Sugar Association Ltd v Attorney-General (Queensland) [1979] HCA 50 ; (1979) 142 CLR 460. The High Court held, inter alia, that in delegating to the Sugar Board the power to determine the value or price of certain acquired sugar by reference to discretionary matters, the Governor-in-Council had not 'determined and declared' the value or 'fixed' the price of the sugar as required by s 6 of the Sugar Acquisition Act 1915 (Qld). Gibbs J at 481 said: 'A power given to one person to determine a value or fix a price will not be validly exercised by allowing another to exercise a wide and unreviewable discretion in determining that price, although the person upon whom that power is conferred may, instead of fixing a money sum himself, "lay down a method of finding it which will produce the same result whoever applies it, so long as he uses it correctly" Cann's Pty Ltd v The Commonwealth [at 228]'. 43 The point which emerges from those cases relevant to determining present issue is that its resolution depends upon the proper construction of s 7C(1)(e) in its context.
Case: Ryder v Morley (1987) 16 FCR 257
Outcome: applied
In my opinion, the argument is not sustainable. In Ryder v Morley (1987) 16 FCR 257 (" Ryder v Morley "), the Full Court (Fox, Jenkinson and Wilcox JJ) rejected an identical argument in the context of s 22 of the NCA Act . The case concerned a search warrant that was issued to a detective sergeant in the Australian Federal Police. He had been seconded to the NCA to assist it with a particular investigation. The applicant argued that a search warrant that was to be executed for the purposes of the NCA investigation must be issued pursuant to, and subject to the restrictions of, the NCA Act , including in particular s 22 thereof, and that s 10 of the Crimes Act (the predecessor of s 3E) cannot be prayed in aid of the warrant.
Case: Malubel Pty Ltd v Elder [1997] FCA 1535
Outcome: cited
For the foregoing reasons, I consider that Ryder v Morley is Full Court authority directly contrary to the argument that the applicant advances in this case. Ryder v Morley was followed by Moore J in Malubel Pty Ltd v Elder [1997] FCA 1535 (" Malubel) . One of the submissions made by the applicant in Malubel was to the effect that it was not open to the second respondent to make application under s 3E of the Crimes Act given the special provisions of s 22 of the NCA Act . His Honour dismissed the application and in doing so he referred with approval to Ryder v Morley . Moore J's decision was upheld on appeal by the Full Court (Burchett, RD Nicholson and Madgwick JJ): see Malubel Pty Ltd v Elder (1998) 88 FCR 242.
Case: Malubel Pty Ltd v Elder (1998) 88 FCR 242
Outcome: cited
For the foregoing reasons, I consider that Ryder v Morley is Full Court authority directly contrary to the argument that the applicant advances in this case. Ryder v Morley was followed by Moore J in Malubel Pty Ltd v Elder [1997] FCA 1535 (" Malubel) . One of the submissions made by the applicant in Malubel was to the effect that it was not open to the second respondent to make application under s 3E of the Crimes Act given the special provisions of s 22 of the NCA Act . His Honour dismissed the application and in doing so he referred with approval to Ryder v Morley . Moore J's decision was upheld on appeal by the Full Court (Burchett, RD Nicholson and Madgwick JJ): see Malubel Pty Ltd v Elder (1998) 88 FCR 242.
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
On the face of these provisions, it is impossible to confine them to evidential material that is for use in the criminal prosecution process. Material that assists the investigation of suspected offences, but which is incapable of being used in the criminal prosecution process, falls squarely within the definition of evidential material. Material of this kind would constitute something with respect to which an indictable offence has been committed or is reasonably suspected to have been committed. The expression "with respect to" has a wide meaning: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 526-527 and 556; and as to the cognate phrase 'in respect of', see Federal Commissioner of Taxation v Scully [2000] HCA 6 ; (2000) 201 CLR 148 at 171.
Case: Federal Commissioner of Taxation v Scully [2000] HCA 6 ; (2000) 201 CLR 148
Outcome: cited
On the face of these provisions, it is impossible to confine them to evidential material that is for use in the criminal prosecution process. Material that assists the investigation of suspected offences, but which is incapable of being used in the criminal prosecution process, falls squarely within the definition of evidential material. Material of this kind would constitute something with respect to which an indictable offence has been committed or is reasonably suspected to have been committed. The expression "with respect to" has a wide meaning: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 526-527 and 556; and as to the cognate phrase 'in respect of', see Federal Commissioner of Taxation v Scully [2000] HCA 6 ; (2000) 201 CLR 148 at 171.
Case: Adler v Gardiner (2002) 43 ACSR 24
Outcome: cited
The definition of a 'thing relevant to an indictable offence' in s 3 refers to things that might 'afford evidence' as to the commission of an offence. This concept is not to be understood narrowly. In Adler v Gardiner (2002) 43 ACSR 24 at 29, in a passage quoted with approval by Branson J in Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520 at 543, Hely J rejected a submission that documents fell outside the scope of a warrant issued under s 3E because the documents could never be admitted into evidence at a trial in relation to the warrant offences. His Honour said: "The submission misconceives the reach of the expression 'afford evidence'. Bearing in mind that the power to issue a search warrant is in aid of a criminal investigation, a thing may afford evidence as to the commission of an offence, even though it may not be admissible in evidence at a trial: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 119. A thing will afford evidence of the commission of an offence if it assists, directly or indirectly, in disclosing that an offence has been committed, or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters: George v Rockett (supra) at 120. The expression 'will afford evidence' does not import a requirement that the documents must necessarily be sufficient to achieve a conviction; it is sufficient that they have relevance to or probative connection with, an issue arising upon an allegation of the offence alleged: Parker v Churchill (1985) 9 FCR 316 at 326. That includes things which are adjectivally relevant as well as things which are of substantive relevance: Ozzy Tyre &amp; Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 at [30] - [31] ." The argument that evidential material cannot be made the subject of a s 3E warrant unless it is for use in the criminal prosecution process is similarly flawed.