FAN19 v Australian Criminal Intelligence Commission

CATCHWORDS

LEGISLATION CITED

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Crime Commission Act 2002 (Cth) ss 4, 4B, 7, 7A, 7B, 7C, 17, 21A, 24A, 25A, 25B, 25C, 25D, s25E, 28, 29A, 30, 33, 34A, 34B, 49, 51, 58, 59AA

Federal Court of Australia Act 1976 (Cth) s 21

Judiciary Act 1903 (Cth) s 39B

Australian Crime Commission Regulations 2018 (Cth) reg 8

Cases cited:

A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50

Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334

Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16

CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514

Craig v State of South Australia (1995) 184 CLR 163

D v Australian Crime Commission [2006] FCA 660; (2006) 152 FCR 497

Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120

Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237

GG v Australian Crime Commission [2009] FCA 759

Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757

Johns v Australian Securities Commission (1993) 178 CLR 408

Kioa v West (1985) 159 CLR 550

Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455

LHRC v Deputy Commissioner of Taxation (No 3) [2015] FCA 52

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 133 FCR 190

Price v Elder [2000] FCA 133; (2000) 97 FCR 218

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

QAAB v Australian Crime Commission [2014] FCA 747; (2014) 227 FCR 293

R v Will [2017] ACTSC 356; (2017) 13 ACTLR 81

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Saeed v Minister for Immigration and Citizenship [2010] HCA 23, (2010) 241 CLR 252

Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200

SS v Australian Crime Commission [2009] FCA 580; (2009) 224 FCR 439

Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325

X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92

Z v Australian Crime Commission [2010] FCA 803; (2010) 188 FCR 85

Division: General Division

Registry: Western Australia     National Practice Area: Federal Crime and Related Proceedings     Number of paragraphs: 306     Date of hearing: 12 May 2020     Counsel for the Applicant: Ms J Taylor SC with Mr F Merenda     Solicitor for the Applicant: Mr David Manera     Counsel for the Respondents: Ms S Maharaj QC with Mr A Willinge     Solicitor for the Respondents: Australian Government Solicitor

ORDERS

WAD 619 of 2019 BETWEEN:

FAN19 Applicant AND:

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

First Respondent DAVID LUSTY Second Respondent ORDER MADE BY:

BANKS-SMITH J

DATE OF ORDER:

15 FEBRUARY 2021 THE COURT ORDERS THAT:

1. The application is dismissed.

2. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Table of contents Introduction [1] The statutory context and instruments [8] Overview of the ACC [8] Compulsory examinations and s 25A [12] 'Member of the staff' [23] The HRED3 determination [26] The Participants Instrument [40] The events [45] Affidavits relied upon [45] The lead up to the issue of summonses [46] The application for summonses to issue [58] The summons [64] The confidentiality direction [69] Endorsement by the ACIC of Officer Masterson to attend examination [74] The examination [76] Officer Masterson's evidence [91] The challenges to the ACIC examination [97] Claim of improper delegation and identification of 'Member of the staff of the ACC' [104] Delegation by the Board [104] Identification by a head of agency [120] Evidence as to 'participating' [145] Whether the Board should be regarded as having complied with its obligations [148] Whether Mr Lusty was right to proceed on the basis that Officer Masterson was a member of the staff [149] Mr Lusty's evidence [150] Reasons provided after proceedings instituted [150] General views in advance of the examination [152] About Officer Masterson and his selection [158] Mr Lusty's knowledge about whether Officer Masterson a member of the staff of the ACC [174] Matters relevant to fair trial [191] Balance of the grounds of challenge [200] Claim that Mr Lusty failed to take into account relevant considerations [202] Principles [202] Provisions relating to the conduct of an examination [204] Coercive powers and protection [204] Section 25A safeguards [210] The competing submissions of the parties on an obligation to consider and accord natural justice [223] Procedural fairness and statutory power [225] Allegation that Mr Lusty failed to take into account and comply with procedural fairness obligations [243] Claim that Mr Lusty acted for an improper purpose in authorising Officer Masterson's presence at the examination [273] Claim that decision to permit Officer Masterson's presence legally unreasonable [293] Claim that Mr Lusty acted recklessly [299] Conclusion [306] REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

The applicant was charged with serious drug offences, including being in possession of approximately 20kg of methylamphetamine, and at the time of the hearing in this proceeding was awaiting trial in the District Court of Western Australia.

After he was charged, the applicant was compulsorily examined before the Australian Criminal Intelligence Commission (ACIC) as part of an ACIC operation referred to as 'Project Baystone'.

The second respondent, Mr Lusty, conducted the examination. Mr Lusty authorised a member of the Western Australian Police Force (WAPOL), Detective Senior Constable Masterson, to be present during the examination.

Neither the applicant nor his legal representative knew that Officer Masterson was present at the examination. He was not in the examination room, but in a separate room.

Mr Lusty disclosed at the examination that the persons present were members of the staff of the Australian Crime Commission (ACC). The respondents contend that Officer Masterson, whilst a member of WAPOL, was also a member of the staff of the ACC and therefore, and having regard to certain statutory provisions, it was not necessary to make any disclosure of his presence to the applicant.

By this application, the applicant seeks review and declaratory relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), or alternatively, s 21 of the Federal Court of Australia Act 1976 (Cth) and s 39B of the Judiciary Act 1903 (Cth). The applicant seeks review of Mr Lusty's decision to allow Officer Masterson to be present and Mr Lusty's decision not to reveal Officer Masterson's presence and status at the examination to the applicant. The applicant contends that Mr Lusty's decision was unlawful and in reckless disregard of his statutory duties. More generally, the applicant contends that he was denied the opportunity of a fair trial by reason of Officer Masterson's presence at the examination, a contention that he indicated he intended to pursue before the District Court.

Before proceeding further, I note that evidence was given by a number of members of WAPOL and with various designations. Apart from where they are first introduced, I will generally refer to them all as 'Officers' in these reasons for convenience.

The statutory context and instruments

Overview of the ACC

The ACC is established under Division 1 of Part II of the Australian Crime Commission Act 2002 (Cth) (ACC Act) (provisions of that Act are referred to as they were at the relevant time, being February 2018). Section 7 established the ACC. Section 7(2) provides that the ACC consists of:

Pursuant to s 7(1A) the ACC may also be known by other names, including the ACIC. It now generally operates as the ACIC (as permitted by reg 8(b) of the Australian Crime Commission Regulations 2018 (Cth)), but can continue to be referred to as the ACC. The statutory provisions continue to use the acronym ACC, and accordingly it is convenient to refer to the ACC when discussing statutory provisions and powers. Otherwise, I will refer to the ACIC, consistent with the practice of the witnesses and counsel.

One of the ACC's functions is to investigate, when authorised by its Board, matters relating to 'federally relevant criminal activity': s 7A(c).

Section 7B provides for the establishment of the Board of the ACC, and prescribes its members (including the head of the police force of each State and Territory) and its chair (the Commissioner of the Australian Federal Police). By this section the Commissioner of WAPOL (Commissioner) is a member of the Board of the ACC.

Compulsory examinations and s 25A Division 2 of Part II empowers the conduct of coercive examinations of witnesses.

Those coercive powers are vested in an 'examiner' under s 24A of the ACC Act. The examiner may conduct an examination only for the purpose of a special operation or investigation (s 24A and s 28(7) of the ACC Act). While the examiner is part of the ACC, the independence of the examiner is apparent from a number of features of the ACC Act. For example, the examiner is not a member of the Board of the ACC; an examiner is appointed by the Governor-General; and separate provision is made in the ACC Act for their remuneration and terms of employment: see generally LHRC v Deputy Commissioner of Taxation (No 3) [2015] FCA 52 at [39]‑[41] (Perry J). The independence of the examiner is important. The examiner cannot act at the dictation of others: LHRC at [41].

The use and scope of the coercive examination powers has been the subject of a number of authorities. An instructive overview is provided in Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325 at [2]‑[17].

It is the disclosure and dissemination of information given during a coercive examination that creates potential risk to the fair trial of an accused. Self-evidently, there will be disclosure of information to those present at the examination. There will then be the potential for dissemination of such information. It is the CEO of the ACIC who has the power to control what information obtained from a witness during an examination can otherwise be disseminated and to whom (for example, to an agency such as WAPOL): s 59AA of the ACC Act. Therefore, whilst an examiner regulates who may be present at an examination, they do not authorise further dissemination of examination material.

In particular, s 25A of the ACC Act regulates the conduct of the examination and affords several protections to the witness. Relevant provisions are as follows:

25A Conduct of examination Conduct of proceedings (1) An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit.

… Persons present at examination (3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

Witnesses (6) At an examination before an examiner:

(6A) For the purposes of subsection (6), the matters relevant to the ACC operation/investigation may include:

… (7) If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must:

(8) To avoid doubt, a person does not cease to be entitled to be present at an examination before an examiner or part of such an examination if:

Confidentiality (9) An examiner may direct that examination material:

(9A) An examiner must give a direction under subsection (9) about examination material if the failure to do so:

The entitlement for an examinee to be heard on the question of attendance, as provided by s 25A(7), is significant, particularly as an examinee cannot refrain from answering a question and the privilege against self-incrimination is abrogated. Section 25A(7) is addressed in more detail below. However it is apparent from the terms of s 25A(7) that whether a person is a member of the staff of the ACC is important to the issue of disclosure of attendance at an examination.

It should also be noted that following the High Court decisions of X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455, the ACC Act was amended in 2015 to provide that the examination power can be used even where, as in this case, the witness has been charged with offences: s 24A(2) and s 24A(3). Section 25A(9A) was introduced as one of the 2015 amendments. The statutory regime considered by the High Court in Strickland was as it stood prior to those amendments: Strickland at [1].

By these same 2015 amendments, a number of other sections were inserted, namely s 25B, s 25C, s 25D, s 25E, s 25F, s 25G and s 25H. They permit evidence given by an examinee or documents produced by an examinee (included in the term 'examination material') to be disclosed to a prosecutor only in given circumstances: s 4B(1) of the ACC Act. 'Prosecutor' is defined in s 4 broadly as follows:

prosecutor, of an examinee, means an individual:

(i) makes, or is involved in the making of, a decision whether to prosecute the examinee for a related offence; or (ii) is one of the individuals engaging in such a prosecution of the examinee.

Section 25E of the ACC Act preserves the Court's requirement to ensure a fair trial.

In any event, the right to a fair trial remains protected by a trial judge's discretion in relation to the admissibility of evidence and by a court's institutional powers to punish for contempt: X7 at [65] (French CJ and Crennan J), citing Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [10]‑[12] (Gleeson CJ, Gummow, Hayne and Crennan JJ); and Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 at [14]‑[15].

I might add at this point that the terms 'witness' and 'examinee' are both used in the ACC Act within s 25A to describe the person being examined. Generally in these reasons I use the word 'witness' to denote the person being examined, although sometimes it is simpler in the context to use 'examinee': nothing turns on this usage.

'Member of the staff' Section 4 of the ACC Act sets out defined terms. It relevantly provides that:

Member of the staff of the ACC means:

As I identified in the introduction, the question of whether Officer Masterson was a 'member of the staff of the ACC' is central to these proceedings. Limb (b) of the above definition is relevant. Whether or not Officer Masterson could properly be described as 'a person participating in an ACC operation/investigation' is to be determined having regard to two instruments.

The first instrument is a determination dated 21 June 2017 by the Board of the ACC issued pursuant to s 7C entitled 'Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No 3)' (HRED3 determination). The second instrument is an 'in confidence' document issued by the Commissioner on 27 July 2017 and referred to by the respondents as a 'participants instrument' (Participants Instrument).

The HRED3 determination By s 7C(1)(c) of the ACC Act, one of the functions of the Board is to authorise the ACC to undertake intelligence operations relating to federally relevant criminal activity. By s 7C(2), the Board may also determine that an investigation into matters relating to federally relevant criminal activity is a 'special operation'. Before doing so, it must consider whether ordinary police methods of investigation into the matters have been effective at understanding, disrupting or preventing the federally relevant criminal activity.

The Board of the ACC has issued a number of determinations about high risk and emerging drugs, including the HRED3 determination, and has determined that they are special operations.

On 21 June 2017 the Board made the HRED3 determination under s 7C of the ACC Act, authorising the ACIC to 'undertake the intelligence operation relating to specified criminal activity'.

Paragraph 7 of the HRED3 determination provides that the general nature of the circumstances or allegations constituting specified criminal activity are those set out in Schedule 1. The general nature of the circumstances are described in para 2 of Schedule 1 and include:

As to the general nature of the allegations constituting federally relevant criminal activity, para 3 of Schedule 1 includes:

Paragraph 3 of Schedule 1 then lists many other connected offences, including offences involving violence, money laundering and general dishonesty.

Paragraph 6 of the HRED3 determination provides that pursuant to para 7C(1)(d) and para 7C(2) of the ACC Act, the Board:

Paragraph 9 identifies the purposes of the intelligence operation as follows:

The purposes of the intelligence operation are to:

(footnote omitted) It is not in issue that Project Baystone was a project being conducted by the ACIC under the intelligence operation authorised by the HRED3 determination. The aim of Project Baystone was stated by the ACIC to be 'to monitor the illicit drug markets for methylamphetamine, cocaine, MDMA and heroin and resolve intelligence gaps in relation to those markets'.

By s 7C(1)(e) of the ACC Act, the Board is also authorised to 'determine, in writing, the class or classes of persons to participate in such an operation or investigation' (the difference between the phrase 'the class or classes of persons to participate' used in this paragraph, and the phrase 'a person participating in an ACC operation/investigation' used in the 'member of the staff of the ACC' definition is of some importance to issues that are discussed below).

Relevantly, the Board's determination of the class or classes of persons who participate in the intelligence operation is set out in para 10 of the HRED3 determination.

Paragraph 10 provides that pursuant to s 7C(1)(e) of the ACC Act, 'the classes of persons to participate in the intelligence operation are those set out in Schedule 2'. Schedule 2 of the HRED3 determination is headed 'Classes of persons' and sets out the following list:

1 The CEO.

2 Each person who is:

3 Each person who is:

(a) an officer or member of the staff of any of the following agencies:

Under para 3(b) of Schedule 2 of the HRED3 determination, the Commissioner or a delegate of the Commissioner was therefore authorised to identify in writing an officer or member of the staff of WAPOL as 'a person whose duties include providing services in relation to ACIC operations and investigations'. So, it follows, if the Commissioner made a written identification, such persons would fall within 'the classes of person to participate in the intelligence operation'.

It is also important to note that s 58 of the ACC Act contemplates administrative arrangements with the States whereby members of a Police Force of a State may be made available to perform services for the ACC. Section 49 provides that such persons, together with persons from the Australian Federal Police or other Commonwealth authorities whose services are seconded to the ACC, may assist the ACC in the performance of its functions, and they thereby become members of the staff of the ACC as defined. So much is consistent with s 17(1) of the ACC Act which provides that 'in performing its functions under this Act, the ACC shall, so far as practicable, work in co-operation with law enforcement agencies'.

The Participants Instrument On 27 July 2017 the (then) Commissioner issued the Participants Instrument which, it is contended by the respondents, comprises the written identification required by para 3(b) of Schedule 2 of the HRED3 determination.

The Participants Instrument provides:

I, Karl O'Callaghan, a member of the Board of the Australian Criminal Intelligence Commission (ACIC) and Commissioner of Western Australia Police, hereby identify, for the purposes of Item 3 of Schedule 2 of each of the instruments set out in Schedule A hereto (the instruments), the officers and members of staff of the Western Australia Police from time to time holding, occupying or performing the duties of the offices or positions set out In Schedule B hereto as persons whose duties include providing services in relation to the ACIC operations and investigations set out in the instruments.

Schedule A of the Participants Instrument refers to nine instruments, including the HRED3 determination. Other instruments relate to operations concerning matters that include firearms trafficking, cyber-related offending and outlaw motor cycle gangs.

Schedule B of the Participants Instrument states as follows:

Schedule B - Western Australia Police Officers and Positions • Commissioner • Each Deputy Commissioner • Each Assistant Commissioner Members or employees of Western Australia Police appointed, assigned, or seconded to:

• Intelligence Portfolio • State Crime • Counter Terrorism and Emergency Response Division • Metropolitan Region • Regional Western Australia At all relevant times, Officer Masterson was employed in the Organised Crime Squad, which is part of the State Crime Portfolio, Serious and Organised Crime. By a pathway that culminates in the reference to members of WAPOL appointed to State Crime in Schedule B of the Participants Instrument, the respondents contend that Officer Masterson was, at the time of the examination of the applicant, a person who fell within the class of persons to participate in the intelligence operation authorised by the HRED3 determination (referred to variously by the parties as the HRED3 operation or simply the operation), including Project Baystone.

The events Affidavits relied upon The following evidence and chronology is based on documentary evidence annexed to an affidavit of the applicant's solicitor, and affidavits provided on behalf of the respondents by Detective Sergeant Matthew Taylor, Officer Masterson, Assistant Commissioner Bradley Royce, [AA] (a [redacted] legal officer at the ACIC) and Mr Lusty. Mr Lusty was the only person who was cross‑examined. His evidence is dealt with in detail separately below.

The lead up to the issue of summonses In 2017 WAPOL was conducting an investigation into suspected criminal activities of alleged drug syndicates. The investigation included operations known internally by WAPOL as Operation [E] and Operation [V]. The applicant's arrest and charge resulted from Operation [V].

In about December 2017 Officer Taylor of WAPOL, who was attached to the Organised Crime Squad, identified certain potential witnesses for examination by the ACIC, including the applicant. An internal WAPOL email from Officer Taylor that noted persons 'that we would like to examine' was forwarded to [AA] at the ACIC.

According to [AA], [AA] met with WAPOL before Christmas 2017 to discuss running examinations regarding a particular drug syndicate. In an internal ACIC email [AA] noted that WAPOL had suggested the names of a number of witnesses 'who they would like to examine'. [AA] said:

I think the proposed examination program presents an opportunity to gather intel about [original redaction] which will potentially yield significant intel benefits to the ACIC (and partner agencies).

The internal email referred to 'intel' such as:

Who they were working for, their roles, who paid for the rental properties and the cars, where they got the money to make those transactions and related matters.

[original redaction] is suspected to be money laundering through [original redaction] on behalf of the [original redaction] syndicate … During January 2018 Officer Taylor, together with another WAPOL officer, Senior Detective Sergeant Michael Rowson, attended the ACIC Perth office and met with [AA] to discuss potential witnesses for examination, including the applicant. According to Officer Taylor, the officers discussed the examination process and potential witnesses. Officer Taylor said it was not decided at that meeting who would attend the examination from WAPOL.

Officer Taylor's evidence is vague as to dates. He said that following that meeting, he and Officer Rowson decided that Officer Masterson should be nominated as the person to attend the examination. Officer Taylor said Officer Masterson was suggested because he was new to the team, had no knowledge of Operation [V] and had a light workload. Officer Taylor said he then contacted [AA] and informed [AA] that Officer Masterson would be available to attend the examination of the applicant; that Officer Masterton had just joined his team; that Officer Masterson had not been involved in the investigation of the applicant; and Officer Masterson had not been involved in the decision to charge the applicant.

It is unclear how communication with Mr Lusty commenced, but it is apparent from email exchanges that by 30 January 2018 [AA] had been told that Mr Lusty had been 'pencilled in' for a series of examinations in Perth, including that of the applicant. On that date [AA] emailed Mr Lusty stating as follows:

In essence, the WA Police have charged [redacted] witnesses with related drugs charges and charges relating to the unlawful possession of cash. Those examinations will be post-charge. Matthew Taylor, the case officer understands that the police involved in the investigation and the subsequent prosecution may be excluded from any post-charge examinations and may not have access to any information obtained during these examinations until after all related proceedings are completed.

The issue being that members of the investigating team who were involved in the decision to charge the respective examinees potentially fall within the definition of 'prosecutor of an examinee' because they made or where involved in the making of a decision whether to prosecute the examinee for a related offence. Although I note that when the ACC Act amendments were being drafted the intent was for the definition to only apply to agencies such as the DPP and to exclude investigators. However, the definition is broad enough to capture the investigators who were involved in the decision to charge, even though that was not what parliament intended … However the police may need to act on the information - for example if one of the post-charge witnesses identified another drug 'safe-house' or some other type of relevant information that requires immediate follow-up, the police would like to use the information to obtain a search warrant if required (without revealing how the information was obtained).

Matthew has told me that he would like the examination material to be provided to a second investigation team who were not involved in the initial investigation and subsequent prosecution so they can assess and act on the information if required. Detective Senior Constable Drew Matheson [sic - Masterson] is a new member of the investigating team who was not involved in the decision to charge any of the examinees. The proposal will be to disseminate the post-charge examination material to DSC [Masterson] (or another investigator independent from the prosecutions) who will in turn provide the information to a second investigation team who can use the information for derivative use to make further inquiries as needed.

We will need to impress on [Masterson] and the second investigating team that they must not discuss the post-charge evidence with Matthew or other police who are associated with the current prosecutions.

It is apparent that at that stage the suggestion put to Mr Lusty was that the examination material would be disseminated to Officer Masterson after the examination - there is no reference to his attendance at an examination.

Mr Lusty replied by email of the same date, writing:

I confirm that I am available for these proposed examinations, but I have not yet made any decisions about whether to conduct them. When you are preparing the relevant paperwork please be careful to ensure that it is proposed that they will be conducted (by an Examiner) for the purpose of a special ACC operation (including Project Baystone) pursuant to the HRED3 Determination, having regard to the decision in DPP (Cth) v Galloway & Ors [2017] VSCA 120 (25 May 2017). Some of the language in the emails below arguably suggests that the examinations would be conducted by, or on behalf of, WA Police (and also arguably implies that it is a forgone conclusion that they will be conducted and that the examination material will be disseminated to WA Police). I know that this is not intended, but it is important to avoid and discourage loose language in emails which could potentially be seized upon by defence lawyers and used against us in the event of a legal challenge (as occurred in Galloway). You might want to (diplomatically) draw this to the attention of relevant WA Police officers (who are unlikely to appreciate the full significance of Galloway-type issues).

I agree with your analysis about the potential width of the definition of 'prosecutor'. For a POST-CHARGE examination I tend to think that it would ordinarily be necessary (re the 1st dot point below), or highly desirable (re the 2nd dot point below), to not permit any of the following persons to be present at the examination and also make a Confidentiality Direction preventing disclosure (until resolution of the related post‑charge offence/s) to:

• any prosecutor of the examinee for a 'related offence', including any member of a police force who was 'involved in the making of a decision whether to prosecute the examinee' for such an offence; and • any person proposed to be involved in such a prosecution, including any proposed prosecution witnesses (I think this is generally highly desirable to avoid legal challenges, especially in light of the decision in R v Seller & McCarthy [2013] NSWCCA 42, in which it was held that the evidence of a proposed prosecution witness - Quincy Tang - should be excluded because he had attended an examination and/or received transcripts of it).

Assuming that I do approve the proposed examinations, the proposal outlined below seems fine. It might also be possible and desirable for someone who was involved in the initial investigation, but was not actually 'involved in the making of the decision to prosecute' and is not a proposed witness (e.g. a WA Police intelligence analyst), to be present at the examination to assist us (given the additional relevant knowledge such a person is likely to have).

If and when the proposed examinations are approved, but before they are conducted, I could prepare some draft proposed Confidentiality Directions for you and others to consider in order to ensure that they are workable, but I wouldn't decide on the final wording until I have considered any submissions the witness and his/her lawyer might wish to make about it (and no final decision about to whom examination material will be formally disseminated should be made until the conclusion of the examination).

(original emphasis) Therefore, it is apparent that Mr Lusty suggested on 30 January 2018 that it might 'also be possible and desirable' that a WAPOL member be present at the examination.

Later that day [AA] emailed Officer Taylor confirming much of the exchange that is reflected in the email at [54] above, and also referring to the fact that [AA] had spoken to Mr Lusty. Relevantly, [AA] said in the email to Officer Taylor:

I have spoken to the Examiner about the proposed examinations and I do not anticipate any issues with the Examiner making a direction/s that permits (subject to conditions) the post-charge examination material being provided to Drew [Masterson] and a second investigations team for derivative use providing those persons were not involved in any decision to prosecute the proposed witnesses.

As I mentioned during our meetings, the police who were involved [in] any subsequent decision to prosecute any of the examinees will be excluded from the examinations.

If possible, it may be prudent to have someone who was involved in the initial investigation, but who was not actually 'involved in the making of the decision to prosecute' and who is not a likely prosecution witness (e.g. a WA Police intelligence analyst), to be present at the examinations to assist us. Any police who are present during the proposed examinations will not be permitted to discuss any of the post‑charge examination material with any of the police who were involved in any decision to prosecute any of the examinees until after the charges are finalised.

It is apparent from the documentary evidence that Mr Lusty was told by [AA] on 30 January 2018 that Officer Masterson was a new member of the investigating team who was not involved in the decision to charge the applicant or any of the other proposed witnesses.

The application for summonses to issue [AA] was involved in the drafting of the summonses. In what appears to be an internal email from [AA] to other ACIC employees on 23 January 2018, [AA] noted that [AA] could help generate the summonses but said:

I have [number redacted] witnesses listed but I am not convinced that all [number redacted] need to be or should be examined. While we are always happy to assist our partner agencies, the ACIC should also assess which witnesses should be examined bearing in mind that we are conducting the examinations for the purposes of the HRED3 [operation].

[AA] completed an ACIC 'examination proposal form'. The proposal to examine witnesses, including the applicant, was subsequently approved by the ACIC.

The formal application to Mr Lusty for a summons to issue was dated 9 February 2018 and signed by Mr Shane Neilson, who was described as the 'Head of the Determination', with legal submissions provided by [AA].

The application set out details of WAPOL's operations that led to the arrest of the applicant and the basis for suspicions as to his involvement in matters relating to an identified drug syndicate and the sale and supply of methylamphetamine. It also set out the nature of the evidence to be sought by way of the examination. It explained why the examination was said to be reasonably necessary for the purposes of the ACIC operation even though the examinee had been charged (and confiscation proceedings had been commenced). The application relevantly said:

87. For the reasons explained below, the post-charge and post-confiscation application examination of [the applicant] is reasonably necessary in all the circumstances and for the purposes for the ACC Special Operation (ACC Act s 28(1)

88. The information provided by [the applicant] is expected to fill intelligence gaps under the [redacted] and the [redacted] as outlined above which fall within the scope of the Determination and also satisfy the objectives of Project Baystone.

89. This knowledge will allow the ACIC to work with partner agencies to disrupt the involvement of serious and organised crime in drug trafficking related activities, including the individuals who fall within the definition of highest risk criminal targets currently being investigated under the HRED3 Determination and Project Baystone.

[The applicant's] Right to a Fair Trial 90. The following measures will be used to protect [the applicant's] right to a fair trial and to ensure that his confiscation proceedings are not prejudiced.

91. The officers involved in [the applicant's] criminal investigation will be advised (as ACIC members of staff) that he will be examined (ACC Act s 25F). However, the police who were involved in making the decision to charge [the applicant] will not be permitted to attend his examination. The Examiner may make a direction under subsection 25A(9) of the ACC Act which prohibits his examination material of the kind described in section 4B(1)(a) and (b) of the ACC Act from being disclosed to members of the WA Police who are involved in making the decision to charge [the applicant] until the charges are 'resolved'.

92. The Examiner may also be invited to make a restrictive Non-Publication Direction under section 25A(9) of the ACC Act, to prevent subsequent disclosure of examination material to the WA Police and the appropriate prosecuting authorities who are involved in making the decision to charge [the applicant] until the matters are resolved. Subject to any direction made by the Examiner under section 25A(9), the ACIC may release [the applicant's] examination material (under section 59AA(1)) in de-identified form to partner agencies (including the WA Police) to further preserve his right to a fair trial.

Confiscation Proceedings 93. However, the same restrictions may not necessarily apply to confiscation proceedings (being civil proceedings) that have been or may be commenced against [the applicant]. Section 25H of the ACC Act permits the ACIC to disclose pre-confiscation and post-confiscation examination material to a proceeds of crime authority …The directions that may be made under section 25A(9) will be further discussed with the examiner after [the applicant] has given his evidence and appropriate orders sought to ensure that [the applicant's] right to a fair trial (and to the extent necessary, his confiscation proceedings) is not prejudiced.

94 The ACIC will comply with sections 25B to 25G of the ACC Act regarding the disclosure of post-charge examination material to the 'prosecutor of an examinee' to the extent that those provisions apply to [the applicant's] examination.

… Whether it is reasonable in all the circumstances to issue the Summons?

107. On the basis of information in the Statement of Facts and Circumstances, [the applicant] is suspected to be involved in drug trafficking. Consequently, [the applicant] is reasonably expected to have information concerning the criminal [activities] of drug distribution networks and money laundering activities within Western Australia nationally and the identity of the persons involved, including the methodologies used to import and distribute the drugs. As noted above, this will provide strategic and operational intelligence within the scope of the HRED3 Determination and Project Baystone.

(original emphasis) The summons Section 28 of the ACC Act sets out the circumstances in which an examiner may issue a summons. Relevantly, it provides that:

Power to summon witnesses and take evidence (1) An examiner may summon a person to appear before an examiner at an examination to do either or both of the following:

(i) the person has been charged or the confiscation proceeding has commenced; or (ii) that charge or proceeding is imminent.

(1A) The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:

On 14 February 2018 Mr Lusty approved the issue of a summons with respect to the applicant and provided reasons, as required under s 28(1A).

Mr Lusty's reasons for the issue of the summons describe that the examination was for the purposes of the HRED3 determination, and that it was reasonably necessary for the purposes of the HRED3 determination, even though the applicant had been charged with related offences and related confiscation proceedings because (adopting Mr Lusty's use of 'examinee' in the reasons):

Mr Lusty's reasons state that the applicant has been charged with 'related offences' and currently had 'related confiscation proceedings' commenced against him. The reasons record that these are significant factors requiring special consideration and additional caution, having regard to the position of an accused 'under our accusatorial system of criminal justice', however, Mr Lusty said he was satisfied that the examination was reasonably necessary having regard to the following:

Mr Lusty also prepared 'Reasons for inclusion of a notation in the Summons prohibiting disclosure' (under s 28(3) of the ACC Act) and 'Reasons for inclusion of a notation prohibiting disclosure' (under s 29A of the ACC Act). It is not necessary to refer to those documents further.

The confidentiality direction Prior to the examination, Mr Lusty and [AA] exchanged further emails.

On 23 February 2018 (the Friday before the examination), Mr Lusty relevantly said in an email bearing the subject line 'Confidentiality Directions':

Further to our previous emails, I enclose a draft version of the type of CD for [the applicant] (and other post-charge examinees) I am contemplating making. It is essentiality the same as previously indicated. I note that it would prohibit disclosure to:

• Any police officers involved in the making of the decision to charge [the applicant]; • Any police officers who are proposed to be witnesses in the current criminal proceedings against [the applicant]; and • Anyone else who is involved, or proposed to be involved, in the prosecution against [the applicant] in some other way (e.g. assembling the brief of evidence or assisting the DPP etc).

Any such persons should not be in the attendance list for the examination (and I would prefer it if everyone on the list for all examinations was a 'member of the staff of the ACC'). However, there would no prohibition against any other police officers or police staff (e.g. analysts) being present at the examination and/or being informed of the evidence given by the examinee at the examination. In particular, there would be no prohibition against police involved in confiscation proceedings against the examinee being present at the examination and/or being informed of the evidence given by the examinee at the examination, but any such persons should be informed that the evidence would not be admissible in such confiscation proceedings (although it could be otherwise used to further relevant inquiries etc).

… For post-charge examinations, I like counsel assisting to provide a copy of the draft CD to the examinee's legal rep just before the examination and I also like to make the direction towards the beginning of the examination before the substantive questioning begins.

I also enclose a draft version of the type of CD for [redacted] (and other pre-charge examinees) I am currently contemplating making. It essentially only prohibits the examinee, and his/her lawyer from disclosing 'examination material' to anyone else. For pre-charge examinations I usually have no objection to any relevant police officers attending (although they should all be 'members of staff if [sic] the ACC) and there would be no prohibition against subsequent disclosure of the 'examination material' to them.

(original emphasis) A draft version of a confidentiality direction was attached to the email.

On 26 February 2018 (a Monday - and the day of the examination), Mr Lusty followed up on the email. He re‑sent the email of 23 February 2018 and asked [AA]:

Hi [AA], Is this all ok?

Regards [AA] replied shortly after, stating:

Hi David, Yes, I thought the draft ECDs were fine Thanks The acronym 'ECD' used by [AA] in the reply email is a reference to 'examination confidentiality direction'.

Mr Lusty then replied:

Thanks, [AA].

We can have a chat now if you are free.

Endorsement by the ACIC of Officer Masterson to attend examination On 22 February 2018 [AA] sent an email to Mr Neilson. [AA] said it was ACIC policy to have the Head of the Determination endorse the people who can attend the examination. The email listed 12 persons, and said that those staff listed in italics would be viewing the examination from the streaming room (inferentially, separate to the examination room). Officer Masterson's name was included, but not in italics - so it seems that at one point the ACIC assumed Officer Masterson if authorised to attend would be visible in the examination room, but that position apparently changed.

[AA]'s evidence does not disclose how or when it was proposed to Mr Lusty that Officer Masterson would attend the examination.

The examination The examination proceeded on 26 February 2018. The applicant was represented by his lawyer during the examination. [AA] was counsel assisting Mr Lusty.

Officer Masterson was authorised by Mr Lusty to be present at the examination under s 25A(3) of the ACC Act.

This authority is recorded in a document headed 'Authorisation for persons to be present at ACIC Examination (s25A (3) [ACC Act])' (Authority). Mr Lusty signed this document on 26 February 2018. The document is redacted to remove references to other persons who were approved to attend the examination. Relevantly, the document was divided into two pages. The first page included the endorsement:

The following named persons request Examiner authorisation, pursuant to section 25A(3) Australian Crime Commission Act, to be present during the ACIC Examination … The second page bore the endorsement (original underlining):

The following persons who are not members of staff of the ACIC request Examiner authorisation, pursuant to section 25A(3) Australian Crime Commission Act, to be present during the ACIC Examination … Officer Masterson was listed on the first page. He is described as holding the position of 'Det S/Const'. The reason for his attendance is said to be 'WAPOL (Partner Agency)'. It records that his attendance is by 'streaming'.

The applicant's counsel was listed in the second part, but the whole of the second page was crossed out and unsigned.

Officer Masterson signed a log indicating when he entered and left the streaming room. In the log he described his agency as 'WAPOL'.

Officer Masterson also signed a document called an 'Examination Briefing Statement'. The Examination Briefing Statement provided for the person completing the document to 'delete whichever is not applicable', the alternate items for deletion being whether the person is a member of the staff of the ACIC or whether they are not. Officer Masterson did not delete either item. Nor did Officer Masterson cross out or circle an option.

However, according to Mr Lusty, neither the log nor the Examination Briefing Statement were provided to him prior to or at the examination, and whilst those documents might indicate Officer Masterson was unsure of the basis upon which he was attending or whether he needed to complete the forms, they do not evidence any particular knowledge on the part of Mr Lusty.

By signing the Examination Briefing Statement, Officer Masterson acknowledged that he knew that the examination was private, that he was bound by a confidentiality direction under s 25A(9) and that a breach of the direction comprised a criminal offence.

Officer Masterson said that during the examination his presence was not drawn to the attention of the applicant. He was not in the same room as the applicant.

The transcript of the examination was in evidence before me. It indicates that Mr Lusty said the following at the commencement of the examination (and the extract does not disclose any confidential information):

Now, there are a few things I would like to emphasise at the outset. First (1st), these are not court proceedings and in this particular forum you are not on trial for any alleged offence. This is a purely administrative fact-finding inquiry into much broader issues than your own personal conduct. You've been called here as a witness because it's believed that you can provide relevant information in relation to the ACC's Special Operation, especially about the activities of other persons. So this Examination is completely separate and distinct from the current criminal prosecution against you or any confiscation proceedings relating to you, which will be heard in a court of law in the future.

Second (2nd), this Examination will be conducted in private. I direct that only the persons whose names appear on a sheet signed by me and dated today are permitted to be present during the Examination. All of these persons are members of staff of the ACC and it is my understanding that none of these persons currently is or intends in the future to be involved in the current criminal prosecution against you.

Third (3rd), the evidence you give at this Examination will be treated as confidential, and to preserve the confidentiality of these proceedings, I will make a direction restricting the use and publication of the evidence you give at this Examination, and the proposed terms of my direction will prevent the evidence that you give here from being disclosed to anyone involved or proposed to be involved in the current criminal prosecution against you, or from being otherwise used in relation to that criminal prosecution. In addition, the ACC Act contains many other provisions designed to ensure that this Examination does not prejudice your right to a fair trial in relation to the criminal charges against you, and I'll address some of these later on. The main thing I want to assure you about is that the purpose of this Examination is not to bolster the existing criminal prosecution against you or any confiscation proceedings relating to you, but rather for the ACC to gain criminal intelligence in relation to broader issues, especially about other persons and activities. … Mr Lusty also made a confidentiality direction under s 25A(9) of the ACC Act during the examination, as had been anticipated. It provides:

I make this direction pursuant to subsection 25A(9) of the ACC Act … I DIRECT that the evidence given at this examination and all 'examination material' (as defined in section 4B of the ACC Act) relating to this examination:

1) MUST NOT be publicly disclosed; and 2) MUST NOT be disclosed by the Examinee or any legal representative of his in relation to this examination EXCEPT that they may disclose such matters to each other solely for the purpose of the provision of legal advice or representation to the Examinee in respect of any matter relating to this examination.

I FURTHER DIRECT that the evidence given at this examination and any document or thing produced by the Examinee at the examination:

1) MUST NOT be disclosed to any person involved or proposed to be involved in any existing criminal prosecution of the Examinee for any 'related offence' in respect of this examination, including the offences with which he was charged in [redacted] relating to the alleged possession of methylamphetamine and unlawfully obtained property, unless and until the charge is 'resolved' (according to the meaning of those terms in the ACC Act); and 2) MUST NOT be otherwise used for the purpose of any such criminal prosecution.

This direction may be VARIED OR REVOKED in writing by the Chief Executive Officer or his delegate in accordance with subsections 25A(10) and (11) of the ACC Act.

Any disclosure or use of examination material in contravention of this direction is an offence punishable under the provisions of the ACC Act.

… (original emphasis) Mr Lusty then proceeded to conduct the examination, with [AA] acting as counsel assisting.

I will return to Mr Lusty's evidence about the examination after consideration of the matters in issue and the principles.

Officer Masterson's evidence Officer Masterson said that he understood the purpose of his attendance was:

To gain a broader perspective on an issue related to law enforcement. The purpose was not to gain information or generate law enforcement intelligence reports, rather to gain an understanding of the issue of drug trafficking in Western Australia and to look at the workings of a drug syndicate, and assist the examiner if required.

Officer Masterson said that he understood the information in the hearing was not to be disseminated. He understood the rationale behind his attendance was that he had no involvement with any persons subject to investigations in relation to Operation [V].

Officer Masterson said he had some involvement in Operation [V] but only with respect to assisting in the arrest and conveyance of two other persons and at addresses unrelated to the applicant. He had no involvement in investigations related to those persons.

Officer Masterson said he had no involvement in the investigation of the applicant or the decision to charge him, or any involvement in the prosecution of charges against him.

He said that he has not disclosed any information from the examination of the applicant to anyone involved in the investigation or prosecution of the applicant.

I also note that according to [AA], there has been no disclosure by the ACIC of information given at the examination to WAPOL (not that such post-event evidence is determinative of the issues in this proceeding).

The challenges to the ACIC examination The applicant seeks review of Mr Lusty's decision to permit Officer Masterson to be present at the examination without informing the applicant of his presence or status and relies on six grounds of claim, most of which have multiple particulars.

By ground 1 the applicant asserts that Mr Lusty failed to take into account considerations relevant to the prejudicial effect of Officer Masterton's presence on the applicant's privilege against self-incrimination and his right to a fair trial.

By ground 2 the applicant contends that statutory procedures, such as informing the applicant that Officer Masterson was present, were not followed by Mr Lusty. It is premised upon a finding that Officer Masterson was not a member of the staff.

By ground 3 the applicant contends that Mr Lusty denied the applicant rights of procedural fairness and natural justice in failing to inform the applicant of the presence of Officer Masterson.

By ground 4 the applicant contends that the exercise of power by Mr Lusty to allow Officer Masterson to attend without disclosure to the applicant was an improper exercise of power and not one that was exercised consistently with the scope and purpose of the ACC Act.

By ground 5 the applicant asserts that Mr Lusty made an error of law in concluding that Officer Masterson was a member of the staff of the ACC within the meaning of s 4 and s 25A(7) of the ACC Act. I will deal with this ground first, and in some detail, because it informs all the other grounds of challenge.

Finally, by ground 6 the applicant contends that the examination, conducted as it was, was unlawful and, or alternatively, in reckless disregard of the examiner's statutory obligations under the ACC Act.

Claim of improper delegation and identification of 'Member of the staff of the ACC' Delegation by the Board The applicant challenges the scope of para 3(b) of Schedule 2 of the HRED3 determination, (being a person 'identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACIC operations and investigations').

The applicants assert that this item impermissibly sought to delegate to persons other than the Board the power under s 7C(1)(e) of the ACC Act to determine the class or classes of persons authorised to participate in the intelligence operation.

A submission to similar effect was dismissed by Mansfield J in D v Australian Crime Commission [2006] FCA 660; (2006) 152 FCR 497.

In D v ACC, the applicants challenged the validity of a summons issued under s 28 of the ACC Act. One contention raised was that the Board in authorising the investigation failed to comply with s 7C(1)(e). Schedule 2 of the determination instrument considered in D v ACC was in almost identical terms to Schedule 2 in the HRED3 determination. The contention was that only Item 1 (the CEO) was identified properly by the Board as a person who participates and Items 2 and 3 do not describe 'a class or classes' because 'the identity of the participants cannot then be determined, as their identification depends upon some subsequent act or acts by the CEO and by the heads of the nominated agencies' (at [30]). The alternative contention was that it impermissibly delegated to the CEO and to the heads of the nominated agencies the selection of the class or classes of persons to participate.

In D v ACC, Mansfield J referred to the broad context in which the definition of 'members of the staff of the ACC' is to be considered:

His Honour then considered the reason why the Board needs to specify the class or classes of persons to participate:

His Honour next addressed the reference to a 'class or class of persons':

The reasons for rejecting the 'improper delegation' argument have been followed and applied in a number of cases: SS v Australian Crime Commission [2009] FCA 580; (2009) 224 FCR 439 at [53] (Jagot J); Z v Australian Crime Commission [2010] FCA 803; (2010) 188 FCR 85 at [116]‑[118] (Reeves J); and GG v Australian Crime Commission [2009] FCA 759 at [102]‑[104] (Besanko J) (reversed on appeal but without disturbing this aspect).

Senior counsel for the applicant acknowledged that I would follow those decisions unless I was of the view that it was plainly wrong (see Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]). It was submitted that the decision was wrong, and that it is in any event distinguishable.

I agree with Mansfield J's conclusion at [58] and the reasoning that preceded it. In coming to this view I have had particular regard to the following:

I have also considered the applicant's careful arguments as to why I should not follow D v ACC.

First, the applicant contends that the relevant instrument in D v ACC was different and required a different level of precision by the head of agency. To my mind the relevant provision under consideration in D v ACC was broader: it specified that the classes of persons to participate in the investigation are, relevantly, 'officers and members of staff, authorised in writing by the head of the [various agencies]'. Schedule 2 of the HRED3 determination has the effect of further confining the classes, and so requiring further precision, in that it also requires consideration of the duties of persons who may fall within the broader class. The class is confined by the requirement that in order to be a member of the class, the duties of an officer or member of staff must include providing services in relation to ACIC operations and investigations. I do not consider the different wording assists the applicant.

Second, the applicant contends that the power of the Board to determine the classes of persons to participate is not, on its proper construction, capable of delegation and that the Court would not impute to Parliament an implied intention that the Board would delegate its powers to determine the class of person to individual board members. This argument is met by Mansfield J's reasons, particularly at [58], and as already indicated, I do not consider his Honour is wrong. Rather, I agree with the reasoning in D v ACC. The Board by the HRED3 determination performed its task of determining in writing the class or classes of persons to participate in the intelligence operation. A step of designation undertaken by a head of agency or their delegate would serve to further confine those within the class but not alter the class itself.

The question then is whether Mr Lusty had regard to the issue of procedural fairness and observed his obligations with respect to the examination.

The starting point is that, as I have found above, Officer Masterson was a member of the staff of the ACC.

To the extent that the applicant relies on an allegation that Mr Lusty failed to take into account that Officer Masterson 'was not a member of the staff of the ACC', the allegation falls away. Regardless, I have addressed Mr Lusty's evidence on this point, as it was the subject of considerable debate during the hearing: see [174]‑[190] above. I have explained that I considered Mr Lusty placed too much store in the correspondence with [AA] as evidencing an instruction to [AA] that all person present were to be members of the staff of the ACC. Viewed objectively, the correspondence on this topic does not say what Mr Lusty asserts it says (see [178]‑[183]). However, in the end, Mr Lusty's reliance on that correspondence in the manner he propounded did not undermine the fact that he had before him other evidence upon which it was open to him to form the reasonable view that Officer Masterson was a member of the staff: the evidence that the application for the summons said that WAPOL officers involved in the criminal investigation were members of the staff (see [177] above); and the terms of the Authority and the fact it had been considered by Mr Lusty (see [185] above).

Having regard to those matters, I consider that Mr Lusty did not fail to take into account whether Officer Masterson was a 'member of the staff'.

Officer Masterson was also authorised by Mr Lusty to be present at the examination. 'Present' is not a defined term in the ACC Act: Brady at [560]. It is not in issue that although he was in a separate streaming room, he was 'present' for the purpose of s 25A.

Because he was a member of the staff and authorised to attend, Officer Masterson's presence did not breach s 25A(5). Because he was a member of the staff of the ACC, Mr Lusty's failure to inform the applicant of Officer Masterson's presence was not a breach of s 25A(7): LHRC at [198].

However, the question remains as to whether Mr Lusty should have disclosed Officer Masterson's presence regardless.

It is relevant to recall that:

It is also part of the context that the Participants Instrument is not a public instrument. It is not safe to assume that a witness or his lawyer would be on notice that WAPOL officers might be 'members of the staff of the ACC', let alone that entire classes of such officers might fall within that description. Nor is it clear how a witness could be expected to check such information.

When asked about the fact that the applicant or his lawyer did not know that Officer Masterson was in a separate room, Mr Lusty's evidence had three themes.

First, his evidence, repeated on a number of occasions, seemingly placed responsibility to find out who was present on the applicant: Mr Lusty said that at no time did either of the applicant or his lawyer ask to see the sheet of paper or express any interest in ascertaining the identity or positions of these persons present; that if they had concerns about a WAPOL officer attending, they could have asked; and that they 'simply expressed no interest or concern'. This evidence revealed a somewhat cavalier approach to the issue, having regard to the point made in Brady that if a person does not know and cannot see that there are other persons present outside of the examination room, they are unlikely to ask about them.

Second, Mr Lusty considered that it was 'self-evident' that someone from an agency such as WAPOL might be present, and it should not have come as a surprise. Whilst the ACC Act contemplates the potential involvement of other agencies (see [39] above), I consider some care should be taken by an examiner in assuming such presence is 'self-evident' in circumstances where both the language ('member of the staff of the ACC') and the practice (not all persons present are present in the examination room) tend to obscure the fact that, for example, a police officer or member of another agency may be present.

Third, and most importantly, Mr Lusty said that he gave consideration to the question of whether Officer Masterson's presence might prejudice the applicant's fair trial and he said that he considered it extensively. He accepted that even if a person is not prohibited by the statutory provisions from attending an examination or bound by a confidentiality direction, then it is still important to consider the examinee's fair trial.

There are a number of matters that I take into account in relation to this third theme.

Prior to the examination, Mr Lusty knew he was obliged to take into account the legal issues as to the presence at examinations of police officers. The 30 January 2018 email expressly evidences that he intended to take into account the identity and role of any police officer who attended, having regard to the definition of 'prosecutor of an examinee' in the context of a post‑charge examination. He also foreshadowed, by his reference to the example of an analyst, that membership of the investigation team would not necessarily be a bar to attendance.

Mr Lusty's reasons for the issue of the summons also indicate that he knew that as the applicant had been charged with offences, he was required to take additional caution having regard to his position 'under our accusatorial system of justice', citing X7 and Lee. Mr Lusty also referred to the statutory protections by way of s 25A(3) and s 25A(9) and to 'other legal mechanisms designed to reduce potential prejudice', referring to s 25C, s 25D, s 25E and s 30.

Mr Lusty understood that s 30 of the ACC Act constituted a statutory abrogation of the privilege against self‑incrimination. During the examination he asked the applicant's lawyer if the applicant would like 'an automatic or blanket claim of privilege so that it will apply to all of his evidence' (presumably a reference to s 30(4)(c) and use immunity). The applicant's lawyer confirmed that was the case.

Mr Lusty considered in advance of the examination the potential for disclosure of examination material and the capacity to make a direction under s 25A(9A) in the case of a post‑charge examination. He provided a draft to his counsel assisting. He provided the proposed direction to the applicant's lawyer immediately before the examination.

I note that Mr Lusty emphasised in his evidence that the applicant's lawyer made no comment on the confidentiality direction. I do not consider that Mr Lusty can rely on the lawyer's conduct as reducing his own obligations in some manner, having regard to the fact that the lawyer was not informed that additional persons were present in a streaming room and did not know who might receive the examination material.

However, Mr Lusty modified the confidentiality direction in the manner described at [193]‑[195] above, and so clearly had regard to the risk of disclosure in the future by a person present at the examination.

Mr Lusty also knew that any further dissemination of examination material had to be approved by the CEO of the ACIC.

The applicant relied in support of its application on a risk that Officer Masterson might pass on examination material to another member of the team in which he worked, being the investigation team within the Organised Crime Squad led by Officer Taylor. The argument centred on any future risk of disclosure by Officer Masterson, potentially exacerbated by his apparent proximity to others who may be involved in the prosecution of the applicant, and the practical difficulty that the applicant would have no means of knowing whether there had been any such passing on of information.

The evidence was that Officer Masterson was not involved and was not proposed to be involved in any investigation into, or criminal prosecution of, the applicant. It is true that there was no express restriction placed on the ability of Officer Masterson to become part of the team prosecuting the applicant in the future, although that was not the intention at the time of the examination. It is also true that Officer Masterson worked in the same team as Officer Taylor.

There was no evidence as to the size of the Organised Crime Squad, the number of officers within that squad who may have been involved in the investigation into the applicant's alleged offending and the decision to charge him, or any evidence as to Officer Masterson's day to day contact (if any) with Officer Taylor or others in the investigation team assisting with respect to the prosecution. It is not possible to describe the risk of disclosure due to proximity other than to say it appears to be no more than speculative. Mr Lusty knew that Officer Masterson's time in the team had been recent; understood that Officer Masterson had no current role and was not intended to have any future role relating to investigating or prosecuting the applicant; and understood that the ACIC would have impressed upon Officer Masterson the obligation to maintain the confidentiality of the examination material. Mr Lusty was obliged to assess the risk of disclosure of examination material by a police officer present at an examination having regard to those particular facts.

A coercive regime such as s 25A proceeds on the assumption that as a matter of practical reality it may be that the ability of an accused to defend charges against him may be altered: Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16 at [22]. Mr Lusty was obliged to consider the risks to the applicant's fair trial that might arise by way of the examination and take steps to guard against those risks. As Mr Lusty said during the hearing, even with a confidentiality direction in place, there is a risk that anyone with knowledge of examination material could theoretically pass on information in breach of their obligations. It is not possible to guard against each and every risk.

I consider that Mr Lusty properly considered the risk that Officer Masterson would receive the examination material and might be in a position to pass it on, and took appropriate steps to minimise that risk.

Mr Lusty was entitled to have some confidence, based on the material before him, that Officer Masterson would not breach the confidentiality direction (including in the future) and was cognisant of his obligations as to confidentiality under that direction and under s 51 of the ACC Act. Any suggestion that Officer Masterson would disclose information contrary to the terms and intent of the confidentiality direction amounts to little more than conjecture.

Having regard to those matters, and contrary to his submission, the applicant has not established that procedural fairness required that there be an opportunity for an adjournment: Mr Lusty, having considered his obligations as to guarding against prejudice to the applicant's right to a fair trial, and having taken the steps to which I have referred, was entitled to proceed with the examination.

Therefore, whilst I have some sympathy for the applicant's position - having been examined in a manner that did not disclose the presence of other persons, and in circumstances where a witness might perceive there to be a deliberate concealment - I do not consider that an obligation arose in the circumstances of this particular case for Mr Lusty to disclose that Officer Masterson was present. To the extent Mr Lusty's conduct denied the applicant the opportunity to raise questions or comment on Officer Masterson's presence, I am not satisfied that there has been the loss of any real opportunity to obtain any further protections. No practical injustice has been shown. I am satisfied that Mr Lusty considered and put in place steps that properly addressed the risk of prejudice to the applicant's fair trial, including the risk of the possible dissemination of examination material by him to those involved in the prosecution or ongoing investigation of the applicant's alleged offending.

Although the applicant's challenge to Mr Lusty's decision has not succeeded on this ground, I do not rule out the potential for concealment of persons present at an examination and the resulting lack of any opportunity to comment on their presence to constitute a denial of procedural fairness in other circumstances.

Claim that Mr Lusty acted for an improper purpose in authorising Officer Masterson's presence at the examination The applicant and the respondents agree as to the principles regarding whether the exercise of a power or a discretion has miscarried by reason of an improper purpose. They are usefully summarised in LHRC by Perry J as follows:

… unless it can be shown in this particular case that it was not open to the Minister to exercise the power of refusal under s 501(3) of the Act, it cannot be shown that the Minister exercised the power for a purpose not permitted by the Act. (emphasis added)

… where the subject matter of the decision falls squarely within the terms of the statutory provision, then, in the absence of evidence establishing improper purpose or evidence displacing all possible permitted purposes, it must be accepted, simply because of the absence of such evidence, that the decision was made for a purpose for which such decisions might properly be made. It is only if the purpose attending the decision must be ascertained by inference from other facts that a presumption of regularity [i.e. that all necessary conditions and formalities have been satisfied unless the contrary is proved] has a role to play. An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power. (emphasis added) It is to be recalled that s 28(7) limits the power to issue a summons, by providing that it is 'not exercisable except for the purposes of a special ACC operation/investigation'. Section 7C(4)(c) requires that the purpose of the special operation or investigation be set out in the determination made by the Board.

As is apparent from Mr Lusty's email to [AA] of 30 January 2018, he was cognisant of the risks associated with any appearance that an examination might be conducted for the purposes of WAPOL, rather than for the purpose of the HRED3 operation. Against that known risk, and having regard to the following matters, I am not satisfied that Mr Lusty acted for an improper purpose. Mr Lusty also made it clear in that email that he had not at that time determined whether or not he would conduct any examinations, evidencing his knowledge that that decision was for him and not [AA] or WAPOL.

The purpose of the HRED3 operation was broad, with a preventative aspect including the disabling of criminal enterprises and identification of those involved in illicit drug use and trafficking. It was not limited to historic offending (see [33] above).

The nature of the charges faced by the applicant was such that it was reasonable to assume he may have some information relevant to those matters.

The ACIC had informed Mr Lusty by [AA]'s 30 January 2018 email that WAPOL may need to act on information that might be revealed by a witness about, for example, a safe house, and would wish to do so immediately (rather than, it can be inferred, before waiting for charges to be resolved).

Mr Lusty knew that under s 17 of the ACC Act, the ACIC in performing its duties was to work in cooperation with other law enforcement agencies, as far as is practicable.

The dissemination of examination material to WAPOL for derivative use following an examination, subject to the position of the CEO of the ACIC or their delegate and other statutory limitations, was a step that was permitted under the ACC Act.

Mr Lusty was told by [AA] that Officer Masterson would be informed that he was not permitted to discuss the examination material with Officer Taylor or any other police officers associated with the prosecution of the applicant. [AA] knew that any examinations would be conducted by the ACIC for the purpose of the HRED3 operation (see [58] above).

The application for the summons to issue included a section signed by [AA], an apparently senior ACIC lawyer (see [167] above), to the effect that the proposed examination related to specified criminal activity in respect of which the HRED3 operation had been authorised, and that there were reasonable grounds for suspecting the applicant might have knowledge and information relating to such activity.

The application also stated that the focus of the examination would revolve around the applicant's involvement and knowledge of drug trafficking and money laundering networks with the intent of gaining knowledge that might allow the ACIC to work with partner agencies to disrupt the involvement of organised crime and individuals, being targets who were being investigated under the HRED3 determination and Project Baystone.

The application foreshadowed that after the examination the examiner may be invited to permit disclosure of examination material to WAPOL officers within the context of a s 25A(9) direction.

Mr Lusty's written reasons for issuing the summons refer to the applicant's suspected knowledge having relevance to the HRED3 determination and assisting with its purpose.

Mr Lusty's evidence in chief as to why he considered a WAPOL officer would assist in an examination is set out above at [153]. He reiterated under cross‑examination that the purpose of the investigation was to try and obtain information and intelligence that would be relevant to identifying current and future criminal activities, and therefore a lack of particular knowledge on Officer Masterson's part about the criminal investigation was not an issue. Officer Masterson could still provide meaningful assistance.

Having carefully considered Mr Lusty's evidence, which is addressed in some detail above, I am satisfied that Officer Masterson was someone who was in a position to assist Mr Lusty with respect to the matters that Mr Lusty identified in his oral evidence. It is not to the point that there may have been others who could also have performed that role. An examiner is not obliged to authorise only the most suitable from a number of potential candidates to assist him. In this case, Officer Masterson was an experienced senior member of WAPOL and appeared to be untarnished, in the sense that he had not been involved in the investigation into the applicant's alleged offending. As Mr Lusty had not previously conducted examinations in Perth, it was not unreasonable to assume that Mr Lusty might obtain the benefit of insight from someone who had local knowledge of the Perth crime landscape (including serious drug offending) during the course of the examination, or for the purpose of advising on disclosure of examination material after the event.

I have been critical of some aspects of Mr Lusty's evidence insofar as it related to the identification and selection of Officer Masterson as a person to attend the examination. However, that criticism was ultimately directed at what I consider to be an unwarranted exaggeration by Mr Lusty of what was involved in that process. That does not mean that the process by which Officer Masterson was selected and authorised to attend the examination was improper. Stripped of embellishment, it is still apparent that Officer Masterson was a person who could reasonably be assumed to be someone who could assist Mr Lusty, during and after the examination, and had the appropriate skills and, at least to some degree, knowledge to do so.

Officer Masterson's evidence about the purpose of his attendance at the examination was more limited, relevantly referring only to gaining an understanding of the issue of drug trafficking, looking at the workings of a drug syndicate, and assisting Mr Lusty if required. Officer Masterson's evidence as to the purpose of his involvement does not provide information from which an inference as to an improper purpose on Mr Lusty's part might be drawn. Whilst Officer Masterson's evidence is very general in nature, it indicates that he understood that the role was to assist Mr Lusty (not WAPOL). Such purpose is not inconsistent with the evidence of Mr Lusty.

The subject matter of the examination fell within the scope of the HRED3 determination and operation. Mr Lusty's reasons for issuing the summons support the view that the summons was issued for the purpose of the HRED3 operation. The information provided about Officer Masterson suggested he could assist in providing information that fell within the ambit of the HRED3 operation and that would assist Mr Lusty. The purposes of the HRED3 determination include the dissemination of intelligence and information in accordance with the ACC Act (see [33] above), and so it was reasonable to take into account the assistance that Officer Masterson could provide in that regard. The assistance that could be provided is not extraneous to the purpose.

The fact that WAPOL may have initiated communications with the ACIC about an examination of the applicant does not evidence any improper purpose, having regard to s 17 of the ACC Act and, more relevantly, the evidence that Mr Lusty independently considered whether or not an examination should be conducted. The evidence does not establish that Officer Taylor sought to direct that an examination occur or that Officer Masterson be present. Putting forward the name of a person who is thought to be a suitable person to attend an examination, where their proposed attendance is permissible under the ACC Act, cannot, without more, be seen as seeking to direct that an examination take place on particular terms. I am unable to infer from the fact that Officer Masterson worked within the same WAPOL team as Officer Taylor, but was not involved in the same investigation, that there was something inappropriate about Officer Masterson's nomination as a suggested attendee, particularly as it was always anticipated that he would have no role in the investigation or prosecution of the applicant. Even if Officer Taylor may have wrongly assumed he had some final say in relation to the conduct of an ACIC examination of identified witnesses (see [48] above), that was not Mr Lusty's understanding. Mr Lusty's email to [AA] of 30 January 2018 clearly, and in the first paragraph, reminded [AA] (to the extent [AA] needed any reminder) that the decision about any examinations was one that he, Mr Lusty, would make.

Having regard to those matters, I am not satisfied that the applicant has shown that Mr Lusty acted for an improper purpose in his conduct of the examination.

Claim that decision to permit Officer Masterson's presence legally unreasonable This allegation was made by way of a particular to the claim that Mr Lusty's decision to allow Officer Masterson's presence without any disclosure to the applicant was an improper exercise of power. It must be considered together with all the reasons above. A power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [19]‑[20] (Kiefel CJ, Bell, Gageler and Keane JJ).

The applicant relies on the well-known principles discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [23]‑[30] (French CJ), [63]‑[67] (Hayne, Kiefel and Bell JJ), [88]‑[92] (Gageler J).

Further relevant authorities include Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [43]‑[44]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [53] (Gageler J); and Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [61].

In Minister for Immigration and Border Protection v Stretton, Allsop CJ explained the position as follows:

[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

[13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

The applicant contends that four matters point to the legal unreasonableness of Mr Lusty's decision:

I have addressed all of those matters above. Having the benefit of Mr Lusty's evidence as to his reasoning process, I am of the view that he did have regard to those matters, and reasoned having regard to both the coercive nature of the provisions and the safeguards that could be implemented to protect the interests of the applicant. Mr Lusty explained why he considered Officer Masterson could assist in the examination and related discussions as to future disclosure; it was not necessary that Mr Lusty select the 'best' person (or even only one person) for the purpose of assisting him at the examination, provided that the person selected was reasonably assumed to be likely to assist; and Mr Lusty had appropriate regard to safeguarding the applicant's interests as to future disclosure, particularly through the use of the confidentiality direction, the sanctions for its breach and consideration of the position of Officer Masterson as a person who was not and not proposed to be involved in the applicant's prosecution. There was an evident and intelligible justification for his decision. I am unable to characterise the decision itself as a decision to which no reasonable person could come.

Claim that Mr Lusty acted recklessly The applicant relies upon the statements in Brady as to recklessness on the part of the examiner (at [619]‑[620]) in support of an application under s 21 of the Federal Court of Australia Act and s 39B of the Judiciary Act for a declaration that Mr Lusty's examination of the applicant in all of the circumstances was unlawful and, or in the alternative, in reckless disregard of his statutory responsibilities under the ACC Act.

The High Court in Strickland determined the appeal from Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120, which in turn comprised an appeal from Brady. The failings on the part of the examiner considered in Brady were extensive. I have referred above (at [220]‑[221]) to aspects of his conduct relating to s 25A(7) that were criticised by Hollingworth J, but there were other significant failings in the examiner's conduct that were the subject of adverse comment. Although her Honour said that she was unable to conclude that the examiner acted in deliberate disregard of his statutory obligations, her Honour was satisfied he was reckless as to his various obligations to an unacceptable degree (Brady at [83]).

The Court of Appeal in Galloway disagreed with her Honour's description of the range of conduct as reckless, citing the requirement in the criminal law for the mental element of recklessness as entailing at least some actual awareness on the part of the offender (Galloway at [108]).

However, the majority of the High Court in Strickland (Kiefel CJ, Bell and Nettle JJ) considered that:

[87] … Plainly, her Honour had used the term in the sense of heedlessness of or indifference towards the requirements of the ACC Act, and semasiologically, that was an entirely apt description of Sage's lack of care in the discharge of the functions legislatively entrusted to him in his capacity as examiner.

The High Court considered that the examiner's conduct as described in Brady, taken with the forensic disadvantage suffered by the appellants in that case, was such that to proceed against the appellants would bring the administration of justice into disrepute. Therefore it was appropriate that there be the extraordinary step of a permanent stay of the prosecution against the appellants (Strickland at [86], [106]‑[107]).

In contrast to Brady, this is not a case where an examiner has acted in disregard of the stringent statutory requirements of the ACC Act. For the reasons already given, I am satisfied that Mr Lusty had appropriate regard to the fact that Officer Masterson was a member of the same team as Officer Taylor and to the management of the risk of disclosure of information; that there was a reasonable basis for assuming that Officer Masterson was a member of the staff of the ACC; that Mr Lusty had appropriate information from which to form a view that Officer Masterson had sufficient knowledge and experience to be of assistance in an examination held for the purpose of the HRED3 operation; and that he considered it would not prejudice the applicant's right to a fair trial to proceed with the examination despite Officer Masterson's undisclosed presence in a separate room, having regard to the safeguards in place as to future disclosure through the use of the confidentiality direction, the sanction for any breach and the particular position of Officer Masterson.

I am not satisfied that there has been unlawful or reckless behaviour that would justify the declaratory relief sought.

Conclusion

For these reasons, the application should be dismissed. I will hear the parties as to costs.

I certify that the preceding three hundred and six (306) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:

Dated: 15 February 2021