Case: Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356
Outcome: discussed
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 (2004) 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. The applicant's argument must fail for another reason, even if (contrary to my conclusion) s 28(1A) of the ACC Act engaged the obligation in s 25D of the Acts Interpretation Act . If I assume s 25D was engaged and I assume the examiner's reasons did not satisfy the requirements of s 25D , the applicant's argument must nevertheless fail because s 28(8)(a) of the ACC Act provides that a failure to comply with s 28(1A), "in so far as that subsection relates to the making of a record" does not affect the validity of a summons. The applicant submits that s 28(8)(a) only relates to the time when the record is made. In other words, the applicant submits that s 28(8)(a) is only engaged where the record is not prepared at one of the times specified in s 28(1A)(a), (b) and (c). It is not engaged, so the argument proceeds, where the failure relates to the contents of the record. I see no justification for drawing such a distinction. The words describing the failure as one relating to the "making of [the] record" are wide enough to cover obligations both as to the time at which the record is made and as to its contents.