P v Australian Crime Commission [2005] FCA 55

FEDERAL COURT OF AUSTRALIA

P v Australian Crime Commission [2005] FCA 55

STATUTES – Australian Crime Commission Act 2002 (Cth) – validity of summons issued under s 28(1) – nature of power to issue summons – requirement for a valid summons – whether jurisdictional basis for summons required to be stated on its face

Australian Crime Commission Act 2002 (Cth) ss 7C, 24A, 28

X v Australian Crime Commission [2004] FCA 1475 applied A v Boulton (2004) 207 ALR 342 cited R v Romeo (1982) 30 SASR 243 cited George v Rockett (1990) 170 CLR 104 cited Ousley v R (1997) 192 CLR 69 applied Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361 cited Barnes v Boulton [2004] FCA 1219 cited National Crime Authority v A1 (1997) 75 FCR 274 cited P v AUSTRALIAN CRIME COMMISSION No SAD 16 of 2005 FINN J ADELAIDE 8 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 16 OF 2005

BETWEEN: P

APPLICANT

AND: AUSTRALIAN CRIME COMMISSION

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 8 FEBRUARY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The interim injunction of 1 February 2005 be dissolved. 2. The application be dismissed. 3. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 16 OF 2005

BETWEEN: P

APPLICANT

AND: AUSTRALIAN CRIME COMMISSION

RESPONDENT

JUDGE: FINN J

DATE: 8 FEBRUARY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is yet another application testing the limits of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The hearing has been expedited. The applicant, to whom I will refer as "P", has been summoned under s 28(1) of the Act by an examiner to give evidence, to quote the summons, "in relation to your knowledge of and involvement in the illegal activities of [AB], [CD] and other members and associates of the [EF Club]". 2 The summons was issued for the purposes of a special Australian Crime Commission ("ACC") investigation which was authorised and determined by the Board of the ACC: see s 7C(1)(c) and (d) of the ACC Act; on 15 May 2003 for a period which was extended by a further authorisation and determination of 28 April 2004. The validity of the latter authorisation and determination is formally challenged in this proceeding, though it is conceded that the grounds of that challenge were rejected in my decision in X v Australian Crime Commission [2004] FCA 1475. For the reasons I gave in X,I uphold the validity of the amending authorisation and determination in this matter as well. 3 The burden of the present application is to have the summons that has been issued declared invalid. To appreciate the basis upon which invalidity is asserted it is necessary to refer both to the structure of the ACC Act and to the terms of the 2003 Authorisation and Determination.