Australian Crime Commission and Another v AA Pty Ltd and Another

[2006] FCAFC 30
(2006) 88 ALD 642

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(Decision by: Nicholson, Mansfield and Bennett JJ)

Australian Crime Commission and Another
v AA Pty Ltd and Another

Court:

Judge:
Nicholson, Mansfield and Bennett JJ

Subject References:
Criminal law
Commissions of inquiry
Australian Crime Commission
Information obtained under compulsory powers
Power to disclose to Australian Taxation Office
Meaning of 'law enforcement agency'

Legislative References:
Australian Crime Commission Act 2002 (CTH) - ss 12; 19; 59
National Crime Commission Act 1984 (CTH) - s 17

Hearing date: 22 February 2006
Judgment date: 20 March 2006

Melbourne

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Decision by:
Nicholson, Mansfield and Bennett JJ

[1] This appeal concerns the power of the Chief Executive Officer (CEO) of the Australian Crime Commission (the ACC) under s 59(7) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) to give information it compulsorily obtained from the second respondent at an examination under ss 24A and 25A of the ACC Act to the Australian Taxation Office (the ATO). The information related to the affairs of both respondents.

[2] The examination was conducted for the purposes of a special ACC operation concerning people trafficking: Australian Crime Commission Special Intelligence Operation Authorisation and Determination (People Trafficking) 2003. The determination was made by the ACC Board under s 7C of the ACC Act.

[3] Section 59 of the ACC Act prescribes circumstances in which information obtained by the ACC may be furnished to other persons or entities. Subsections (1)-(6) deal with disclosure to the Minister, to certain state ministers, to the Inter-Governmental Committee and to the Parliamentary Joint Committee on the ACC.

[4] Section 59(7) of the ACC Act provides:

The CEO may give to:

(a)

any law enforcement agency; or

(b)

any foreign law enforcement agency; or

(c)

any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations;

any information that is in the ACC's possession and that is relevant to the activities of that agency or body if:

(d)

it appears to the CEO to be appropriate to do so; and

(e)

to do so would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.

[5] After the examination, on the application of the ACC, the CEO of the ACC under s 25A(10) of the ACC Act on 12 May 2005 varied the non-publication order made by the examiner at the conclusion of the examination to authorise the information to be given to the ATO. The CEO says his decision was made under s 59(7), on the basis that the ATO is a law enforcement agency referred to in subpara (a) of that provision. At the time, the ATO was not an agency or body prescribed by regulations under s 59(7)(c). Such a prescription has now been made: Australian Crime Commission Amendment Regulations 2005 (No 1), in effect on 15 December 2005. It may be that prescription occurred in response to the judgment appealed from.

[6] The respondents applied to the court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review the CEO's decision.

[7] At first instance, a judge of the court declared that the ATO is not a "law enforcement agency" within the meaning of the ACC Act. Consequently, s 59(7) did not authorise the CEO to give the information to the ATO. At first instance, it was also argued that s 19 of the ACC Act authorised the disclosure of the information to the ATO. His Honour also rejected that contention. The ACC and its CEO do not challenge that part of the judgment at first instance.

[8] The term "law enforcement agency" is defined in s 4 of the ACC Act to mean:

(a)

the Australian Federal Police;

(b)

a Police Force of a State; or

(c)

any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the States.

[9] The learned judge at first instance explained his reasoning in the following passage:

[22] The key to the resolution of the construction question depends upon the meaning of the words "the laws of the Commonwealth or a State" in para (c) of the definition.

A person or authority can only be a law enforcement agency if it is responsible for the enforcement of those laws. The definite article "the" is used as an identifier. In general, use of the definite article as an identifier presupposes the existence of the thing (an entity, set or quantity) to be identified. When a quantity is being identified that quantity is maximal. The Cambridge Grammar of the English Language (2003) at 369-370, gives as an example of this the following question: "Where did you put the keys?" It notes that we are here concerned with the totality of the keys. Thus if there are five keys, a subset of say two, three or four is irrelevant: it is the set as a whole that is presented as identifiable in the example. Similarly, that is the only meaning that can be given to the words "the laws" in the definition. It follows that because the ATO is not responsible for the enforcement of "the laws", that is "all the laws", of the Commonwealth or of any State or Territory, the ATO cannot be a law enforcement agency as defined. On the other hand, because the ATO (technically the Commissioner of Taxation) may be authorised by "a law" to prosecute a relevant offence, there may, in an appropriate case, be an obligation under s 12(1)(c) for the CEO to give evidence to the ATO.

[10] The contentions on appeal largely, but not entirely, mirror what was put at first instance.

[11] The starting point in the construction of a statutory provision is the context in which it is being construed: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2 ; 153 ALR 490 at 509 ; [1998] HCA 28 per McHugh, Gummow, Kirby and Hayne JJ.

[12] The ACC is the successor to the National Crime Authority (the NCA), established under the National Crime Authority Act 1984 (Cth) (the NCA Act). The NCA was established to supplement the efforts of existing state and Commonwealth law enforcement structures, because it was perceived that those structures were not fully equipped to prevent or investigate certain types of criminal activity (as the learned judge at first instance said) "loosely described as organised, sophisticated or complex crimes". Its broad functions were to gather information and to conduct inquiries into certain types of criminal activity, and to deal with that type of criminal activity through the exercise of its particular powers. The Senate Standing Committee on Constitutional and Legal Affairs Report on the National Crime Authority Bill 1983 (1984) (the NCA Report) resulted from the referral to the committee of the National Crime Authority Bill 1983. The NCA Report (para 1.6) identified areas where existing law enforcement structures were inadequate as including tax evasion, fraud, currency violations, drug dealing and company offences. It specifically referred to the need for information sharing with the ATO (paras 1.8 and 1.9). The NCA Report (para 3.8) said:

The recurrent and invariable advice of royal commissioners and special prosecutors dealing with organised crime has been that it is necessary to break down the barriers that exist between law enforcement agencies and allow one body to assemble all the information held by government so that an appropriate response to such crime can be made in the public interest.

[13] Those views are reflected, in a more general way, in the second reading speech on the National Crime Authority Bill 1983 (Cth): Commonwealth, Parliamentary Debates, House of Representatives, 7 June 1984, p 3093.

[14] That the legislative intention was for the NCA Act to facilitate information provision to regulatory bodies with specific law enforcement functions was confirmed by the Parliamentary Joint Committee on the National Crime Authority, Third Evaluation of the National Crime Authority, April 1998. The committee report (Ch 2) said:

2.33 As well as coordinating multi-jurisdictional task forces, the NCA is required to cooperate with both police services and those specialist regulatory bodies which have law enforcement responsibility. The PJC took evidence from several of these regulatory bodies that their involvement in NCA task forces and/or in intelligence sharing was productive and effective in adding value to the nation's anti-crime efforts.

[15] The footnotes indicate the specialist regulatory bodies with which the NCA worked included the ATO, and the Australian Securities Commission (ASC) (now the Australian Securities and Investments Commission (ASIC)). As is the case with the ATO, the ASC (now ASIC) has responsibility for the enforcement of particular laws of the Commonwealth, but not of all the laws of the Commonwealth.

[16] The ACC was established by the ACC Act. In essence, the ACC Act is the NCA Act renamed and amended. The ACC combined the NCA, the Office of Strategic Crime Assessments and the Australian Bureau of Criminal Intelligence. It was formed to enhance the capacity of the Australian governments to counteract complex criminal activity engaged in by organised or sophisticated criminal groups and to address the heightened risk of terrorism: Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2002, p 7328 (Daryl Williams, Attorney-General).

[17] That general background makes it unlikely that the ACC Act was intended to restrict the flow of information from the ACC to the ATO if the NCA was previously empowered to provide it to the ATO. There is nothing in the revised explanatory memorandum to the Australian Crime Commission Establishment Bill 2002 or in the second reading speech to suggest any such intention. Indeed, the revised explanatory memorandum states that s 59(7):

... will enable the CEO to disseminate any information that is in the ACC's possession and that is relevant to the activities of another agency, to that other agency but only if it appears to the CEO to be appropriate to do so, and to do so would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.

[18] In accordance with the NCA Report, the NCA Act contained a series of specific powers. They included the predecessor to s 59. As it stood prior to the ACC Act, s 59(7) provided:

Notwithstanding section 11, the Chairperson may, whenever it appears to the Chairperson to be appropriate to do so, furnish to relevant law enforcement agencies any information concerning the commission or possible commission of offences against the laws of the Commonwealth, of a State or of a Territory that has come into the Authority's possession.

[19] The definition of "law enforcement agency" has remained unaltered, and there was no definition of "relevant law enforcement agencies".

[20] The ACC and its CEO contend that, under the NCA Act, information compulsorily obtained was clearly able to be provided to the ATO under s 59(7). That is because the expression "offences against the laws of the Commonwealth ..." could not mean only offences against all the laws of the Commonwealth. Separate laws create separate offences. Plainly, that quoted expression is intended to refer to an offence or offences against a law or laws of the Commonwealth. Otherwise, in practical terms, it would have no real operation as no offence is against all the laws of the Commonwealth.

[21] The definition of "law enforcement agency" in the ACC Act might nevertheless militate against that obvious conclusion in the case of the ATO for the reasons given by the learned judge at first instance. For reasons which appear below, we respectfully disagree with his Honour as we consider that the definition of "law enforcement agency" does not in fact require an agency to be responsible for the enforcement of all the laws of the Commonwealth to be a law enforcement agency under the ACC Act. Under the NCA Act, the position is even clearer. The section containing definitions in the NCA Act, as carried into the ACC Act, provides that the definitions apply unless the contrary intention is clear. Definition sections must be read and accommodated with the rest of the enactment: see Gidaro v Department of Social Security (1998) 83 FCR 139 at 150 ; 154 ALR 550 at 561 ; 50 ALD 173 at 182-3; Taylor v Public Service Board (NSW ) (1976) 137 CLR 208 at 212 ; 10 ALR 211 at 215. In our view, for the reasons already given, the plain intendment of s 59(7) of the NCA Act was to authorise the provision of information of the character it specifies to an agency responsible for the enforcement of a law or laws of the Commonwealth or of the states, rather than to confine its operation to an agency responsible for the enforcement of all the laws of the Commonwealth. Consistency then demands that the definition of "law enforcement agency" should be given the same meaning.

[22] As we have said, if that were the position prior to the commencement of the ACC Act, there is no reason to think the ACC Act was intended to restrict the provision of information to a more limited range of agencies than previously obtained.

[23] In any event, both contextual and textual considerations lead to the conclusion that subpara (c) of the definition of "law enforcement agency" in the ACC Act encompasses an agency responsible for the enforcement of a law or laws of the Commonwealth, and is not limited to an agency responsible for the enforcement of all the laws (collectively) of the Commonwealth.

[24] The contextual considerations are partly referred to above. The legislative history of the ACC Act, and legislative and like materials, are relevant to identify the mischief sought to be addressed and so the context in which the particular provisions are to be construed: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 ; 141 ALR 618 at 634-5 ; [1997] HCA 2. Underlying both the NCA Act and the ACC Act is the perceived need for a duly empowered central authority compulsorily to acquire information concerning a range of more sophisticated criminal conduct and to be able to disseminate it to bodies responsible for enforcing the laws of the Commonwealth and of the states. That material indicates that one of the objectives of the NCA, and then the ACC, is the provision of information compulsorily acquired to the ATO and to other agencies responsible for the enforcement of the laws of the Commonwealth. There is no contextual reason to confine the entities encompassed by subpara (c) of the definition of "law enforcement agency" only to those entities responsible for the enforcement of all the laws of the Commonwealth. Indeed, it would make little sense to preclude from the potential recipients of information those entities with responsibility for enforcing particular laws or prosecuting particular types of criminal conduct and to permit its provision only to those entities with broad enforcement responsibilities.

[25] We observe further that counsel for the respondents did not identify any other authority or person who might fall within the description of one responsible for the enforcement of all the laws of the Commonwealth or of all the laws of a particular state, other than the Australian Federal Police or the police forces of the states, so as to give subpara (c) of the definition any work to do. The interpretation proposed by the respondents would have no practical utility. Such a construction should be avoided if the relevant words can bear a useful meaning, consistent with the purposes and objects of the ACC Act: Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574 ; 116 ALR 54 at 63.

[26] Counsel for the respondents sought to distinguish agencies whose enforcement responsibilities extend beyond the enactments which give them their specific responsibilities so as to include only those with more general enforcement responsibilities. There is no mandate in the words of the definition for that refinement. In fact, neither the Australian Federal Police in respect of the Commonwealth nor the police force of a state in respect of that state are entities responsible for the enforcement of all the laws of their respective jurisdictions. Their mandate respectively relates to the enforcement of criminal laws, and not the more general enforcement of the laws. The investigation leading to the enforcement of certain criminal laws of the Commonwealth is, in addition, not the responsibility of the AFP. Under their respective enactments, for example, ASIC enforces the Australian Securities and Investments Commission Act 2001 (Cth) including certain conduct amounting to criminal offences; the Australian Customs Service enforces the Customs Act 1901 (Cth) including certain conduct amounting to criminal offences under that Act; and the same applies to the ATO under the Taxation Administration Act 1953 (Cth) (the TA Act) including conduct amounting to criminal offences under that Act.

[27] There are textual reasons for reaching the same conclusion. The ACC is established by s 7 of the ACC Act. Its functions include investigating, when authorised by the Board of the ACC, matters relating to "federally relevant criminal activity". That term is defined to mean, inter alia, a "relevant criminal activity" where "the serious and organised crime" is an offence against a law of the Commonwealth. There is thus provision for the ACC to focus upon conduct which may be an offence against a particular law or laws of the Commonwealth. "Serious and organised crime" is defined to include, in certain circumstances, tax evasion, illegal drug dealings, fraud and currency violations, as well as a range of other specific forms of criminal conduct. The Board of the ACC, established by s 7B, includes the Chief Executive Officer of the Australian Customs Service and the Chairperson of ASIC. It would be surprising if those persons, as members of the board, had the function of authorising the ACC to investigate matters which might include or relate solely to conduct in breach of certain laws which they or their agency are responsible to enforce, but those persons or their agency were not entitled under s 59(7) to receive from the ACC information it had obtained relating to such conduct.

[28] Section 23 of the Acts Interpretation Act 1901 (Cth) directs that, unless the contrary intention appears, words in the plural include the singular. The use of the definite article in the term "the laws of the Commonwealth or of the States" in subpara (c) of the definition of "law enforcement agency" does not, in our view, indicate an intention contrary to s 23 of that Act. The ordinary and natural meaning of the relevant words may encompass one or more of the laws of the Commonwealth or of a state. The definite article preceding the word "laws" is equally apt to describe collectively a group of laws for which the relevant agency may be responsible only for a subset. P Peters in the Cambridge Australian English Style Guide , Cambridge University Press, Cambridge, 1995, pp 747 describes the definite article as signalling "that a noun is to follow, and it very often implies that the noun is one with which the reader is already acquainted" so that " the says: 'You know which one I mean', and reminds us of an earlier reference to the same thing in the text". The definition operates as a cohesive device to ensure continuity of reference, but as pointed out above should be understood as part of the whole enactment. More specifically, the Macquarie Dictionary (4th ed, 2005, p 1459) also refers to the usage of "the" as marking a noun indicating something well known; and as marking a plural noun as indicating an area typified by a particular type of geographical feature (eg "the hills"). Reference to going to "the hills" does not mean going to all the hills. Consistent with such usage, reference to "the laws" in context may indicate a class of enforcement responsibilities of which one or more may be the particular focus of attention in particular circumstances. That is consistent also with a further usage given by the Macquarie Dictionary for "the" as used "distributively, to denote any one separately".

[29] It may be noted that the functions of the Director of Public Prosecutions under the Director of Public Prosecutions Act 1983 (Cth) include the institution of prosecutions on indictment for indictable offences and for the summary convictions of persons in respect of offences "against the laws of the Commonwealth": ss 6(1)(a) and 6(1)(d). Clearly that contemplates that an indictment or a summary proceeding will be in respect of a particular law of the Commonwealth. The use of the definite article is a distributive usage to denote any one or more of the laws of Australia. While that does not inform the proper construction of the ACC Act, it is an illustration of the usage of the definite article in a way different from that urged on behalf of the respondents.

[30] Counsel for the respondents drew attention to the fact that s 59(7) of the ACC Act also empowers the CEO of the ACC to provide information to "any foreign law enforcement agency" and to the definition of that term in s 4. That term is defined to mean:

(a)

a police force (however described) of a foreign country; or

(b)

any other authority or person responsible for the enforcement of the laws of the foreign country.

[31] He contended that, unless the expression "the laws of the foreign country" in that definition were read to mean "all the laws of the foreign country", the CEO's power to provide information to foreign agencies would be very wide and that such a power would not have been intended. There is no reason to consider that the legislature did not intend s 59(7) to be responsive to a range of structures of law enforcement in foreign countries, or to confine the power only to those countries where the structure of law enforcement is by a single (or several) agencies responsible for enforcement of all the laws of that country. There is nothing in the contextual material to suggest that. The controls upon the provision of information are that the CEO's power can only be exercised where the information is relevant to the activities of the foreign agency and, as the provisos to s 59(7) say:

(d)

it appears to the CEO to be appropriate to do so; and

(e)

to do so would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.

[32] It is also appropriate to note s 59(11) of the ACC Act. It empowers the release of information to the Australian Security Intelligence Organisation that is relevant to security as defined in s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act). That provision does not assist the respondents' contentions but rather fortifies the conclusion we have reached. The Director-General of Security under the ASIO Act is a member of the board of the ACC. It might therefore be expected that information procured in an ACC investigation which is relevant to security under the ASIO Act would be authorised to be provided to that agency. In the case of ASIO, it is not a "law enforcement agency" as it is not responsible for the enforcement of any laws of the Commonwealth; its functions are more discrete: see ss 17, 27A, 27B of the ASIO Act. Specific provision to permit the provision of information to ASIO (unlike that to the Australian Customs Service and ASIC which both fall within the description of "law enforcement agencies") was therefore necessary.

[33] The conclusion reached on that issue does not overlook the general rule that an Act will not be construed as taking away an existing right unless its language is reasonably capable of no other construction: Sargood Brothers v Commonwealth (1910) 11 CLR 258 at 279 ; 16 ALR 483 at 497 ; [1910] HCA 45; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 ; 45 ALR 609 at 617. That was a matter which clearly influenced the learned judge at first instance. The compulsory examination powers of the ACC inhibit the right to withhold information from an investigative agency in certain circumstances. In our view, the proper construction of the ACC Act, including the definition of "law enforcement agency" requires it to be read so that s 59(7) empowers the CEO to provide compulsorily acquired information to the ATO if the conditions for doing so are satisfied.

[34] The second step in the argument of the ACC is that the ATO is a law enforcement agency. Enforcement involves compelling fulfilment of the law: Kunakool v Boys (1987) 14 FCR 489 at 500 ; 77 ALR 435 at 446 ; 14 ALD 119 ; R v Bates [1982] 2 NSWLR 894 at 895. Once it is accepted that a law enforcement agency may be responsible for enforcing particular laws of the Commonwealth, the respondents did not really gainsay that second step. It is clear. Part III of the TA Act is headed "Prosecutions and offences". Under s 8ZJ(8), the Commissioner of Taxation may authorise certain persons to institute a prosecution for a prescribed taxation offence and s 8ZJ(2) then authorises that person to do so in the name of the Commissioner. Section 8A defines "prescribed taxation offence" to mean in certain circumstances a "taxation offence". That term is defined in the same section to include an offence against a taxation law. The term "taxation law" is defined in s 2 to mean the TA Act, any other Act of which the Commissioner has the general administration and certain other enactments. Section 3A of the TA Act gives the commissioner general administration of that Act. The Commissioner's functions include the investigation of contraventions of taxation laws, and the exercise of powers to do so: see ss 8D, 8E, 263 and 264 of the Income Tax Assessment Act 1936 (Cth). The Statutory Agency known as the ATO comprises the Commissioner and the staff engaged to assist the Commissioner: s 4A of the TA Act. The ATO through persons authorised by the Commissioner and assisted by the staff of the ATO can therefore prosecute at least certain offences under the TA Act. Consequently, it is clear that the ATO is an agency responsible for enforcement of certain of the laws of the Commonwealth. It is not necessary to refer extensively to the offences under taxation legislation.

[35] For those reasons, the appeal should be allowed. The declarations made by the learned judge at first instance in [2] and [3] of the orders made on 31 August 2005, and the order for costs made in [4] of the orders made on 31 August 2005, should be set aside.

[36] The parties agree that the matter should otherwise be remitted to the learned judge at first instance for further hearing. The proceedings involved both the question of the power of the CEO of the ACC under s 59(7) of the ACC Act to give the information to the ATO, and then, if the power exists (as we have found it does), the question whether the power was properly exercisable and properly exercised in the circumstances. By consent, the first issue only has been addressed. It is now necessary for the second issue to be addressed at first instance.

[37] The respondents resist an order for costs of the appeal. There is no apparent reason why the costs of the appeal should not follow the event. We so order. The costs of the hearing thus far at first instance can be further addressed in due course by the learned judge at first instance.

[38] The respondents also seek a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981. The ACC and the CEO of the ACC did not seek to be heard on that application.

[39] Clearly the discretion available under s 6(1) is available as the appeal is a "federal appeal" and it has succeeded on a question of law. In this matter, the parties were agreed that one particular issue should first be decided at first instance. It involved an important question of construction of the definition of "law enforcement agency" under the ACC Act, and hence the scope of s 59(7) of the ACC Act. The decision at first instance indicates that the point taken by the respondents, and upon which they succeeded at first instance, was of some substance. It was a point which concerned the balancing effected by the ACC Act between the need to detect and punish serious criminal activity and the powers granted to the ACC to do so and, on the other hand, the need to recognise that the legislature does not lightly remove or restrict personal liberties, relevantly by permitting the ready dispersal of compulsorily elicited information.

[40] For those reasons, we certify that, in our opinion, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act to the respondents in respect of the costs incurred by them in relation to this appeal, and the costs incurred by the ACC and the CEO of the ACC in respect of the appeal that have been ordered to be paid by the respondents to them.

DENNIS PEARCE

BARRISTER AND SOLICITOR