Government employees exercising decision-making powers conferred
on them by legislation must approach their task with care, ensuring
compliance with the requirements of the relevant Act and the
general law. In particular, they must understand the statutory
basis for the power they purport to exercise or the administrative
decision that they purport to make. Recently, the Full Court of the
Federal Court in GG v Australian Crime Commission 
FCAFC 15 declared a summons invalid after finding that the examiner
did not properly understand or consider the statutory basis for
The case concerned a decision by an "examiner" of the
Australian Crime Commission (ACC) to issue a
summons to a person, purportedly pursuant to s 28(1) of the
Australian Crime Commission Act 2002 (Cth) (the
Act), to attend at a particular time and place for
questioning regarding the alleged criminal activity of himself and
other persons. The Act authorises an examiner to issue summonses
for the purpose of an ACC "special investigation" into
matters of "federally related criminal activity".
In issuing the summons, the examiner did not appear to
appreciate the fact that the Act distinguishes between
"operations" and "investigations" and, for that
matter, between "special operations" and "special
investigations" – each being a different thing and
authorising the issue of summonses for different reasons. For
example, the examiner's reasons:
suggested that he was of the view that it was a special
operation, rather than a special investigation, which provided the
statutory authority for the summons
were headed with the name of an operation, not an investigation
(and without reference to the word "special"), and
stated that he was satisfied that the operation (not
investigation or, more properly, "special investigation")
accorded with the purpose of the decision of the ACC Board.
The appellant contended that the examiner's discretion
to issue the summons miscarried because, in confusing special
investigations and special operations, he misunderstood the nature
of his power. The respondent contended that the inconsistencies in
the examiner's reasons were inconsequential slipups of the
kind that might often occur when standard form documents are used
across different situations.
The Full Court found that the inconsistencies in the
examiner's reasons demonstrated that the examiner was not
fully cognisant of the nature of the task in which he was engaged
or that he understood the statutory basis of the power that he
purported to exercise. As a result, the summons was declared
It is interesting to note that the Full Court did not address
the issue of whether the matters to be taken into account by the
examiner in exercising his discretion to issue the summons would
have been similar, regardless of whether the summons was being
issued pursuant to a special investigation or a special operation
such that the examiner's decision to issue would have been
the same anyway. The Full Court's finding that the examiner
did not fully appreciate the origin of his power was itself
sufficient to declare the summons invalid. The decision
demonstrates the importance of administrative decision-makers fully
understanding the nature and basis of the power they purport to
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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