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 [2010] FCAFC 15 declared a summons invalid after finding that the examiner did not properly understand or consider the statutory basis for issuing it.

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 invalid. 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 exercise.

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