FEDERAL COURT OF AUSTRALIA

AA Pty Ltd v Australian Crime Commission and Another

[2005] FCA 1178

Finkelstein J

25 August 2005 - Melbourne

Finkelstein J. This application concerns the power of the Australian Crime Commission (the ACC) to disseminate information which it has obtained through use of its compulsory powers of investigation. The question in issue is whether information obtained from the applicants in the course of an investigation into "people trafficking" (the allegation being that there has been or may be committed sexual servitude offences, deceptive recruiting for sexual services offences, slavery offences and the like) can be given to the Australian Taxation Office (the ATO). The applicants contend, first, that the ACC does not have power to give the information to the ATO and, secondly, if the power exists, it is not properly exercisable in the circumstances. By consent I will deal initially only with the first issue, the answer to which depends upon the proper construction of a number of provisions in the Australian Crime Commission Act 2002 (Cth). The second will be considered later, but only if it becomes necessary.

2 The background is straightforward. Section 28 of the Australian Crime Commission Act 2002 (Cth) empowers a person who holds the position of an examiner to "summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things as are referred to in the summons". A failure to attend as required by the summons or a failure to answer questions or produce documents is an indictable offence punishable by a fine not exceeding 200 penalty units or imprisonment not exceeding 5 years (s 30(6)). By s 22 the ACC also has power to apply for a search warrant authorising a member of the Australian Federal Police or the police force of a State or any other person to seize things connected with a "special ACC operation/investigation" (as defined).

3 The first applicant, a company, owns a property in Brunswick. There is in force planning permission for the property to be used as a brothel. The second applicant is a director of the company. He carries on business at the property as a prostitution service provider as defined in the Prostitution Control Act 1994 (Vic). He holds a licence to carry on that business. The second applicant was served with a summons to attend before an examiner to be questioned and to produce documents. He attended before the examiner on 14 April 2005 bringing with him the documents mentioned in the summons. At the commencement of the examination he was told that the proceeding would be conducted in secret and that a "non-publication direction" would be given at the end of the examination. He then produced documents to the examiner and on his affirmation answered the questions put to him.

4 The examination did not finish on 14 April and when the hearing was adjourned the examiner made a non-publication direction, purportedly pursuant to s 25A(9) of the Australian Crime Commission Act 2002 (Cth). I say "purportedly" because, while I am prepared to accept that a direction under the section can bind third parties, it is far from clear, as the ACC seems to think, that the direction can bind the ACC itself. At all events, the direction was that "the evidence given by [the second applicant], the contents of documents produced to the Commission during [the] examination, any evidence that might enable [the second applicant] to be identified and the fact that [the second applicant has] given evidence at this examination shall not be published except to the chief executive officer, examiners and members of the staff of the Commission, law enforcement agencies and if appropriate the Business Licensing Authority Victoria". There was a discussion about whether the ATO should be included among the authorities to whom information could be disseminated but on the objection of the second applicant it was not included. While the examination was taking place a search warrant was executed at the Brunswick property, and books and records belonging to the first applicant were seized and subsequently delivered into the custody of the ACC.

5 On 20 April 2005, the ACC advised the second applicant that an application would be made to the chief executive officer of the ACC to vary the non-publication direction to permit publication of the examination to the ATO. The second applicant was informed that if he wished to make any representations in relation to that application he could do so. The second applicant's solicitors made representations that there should be no disclosure to the ATO, but to no avail. On 23 May 2005 the solicitors were informed that the non-publication direction had been varied to permit publication to the ATO of the evidence given by the second applicant, of a copy of the transcript of the evidence, and of the contents of any document produced to the examiner. The applicants' case is that, variation or no, the ACC has no power to provide to the ATO the information obtained under the summons or the search warrant.

6 To investigate the merits of this case it is best to begin with the history of the ACC. It is the successor to the National Crime Authority, which was established in 1984 by the National Crime Authority Act 1984 (Cth). The NCA had been established because of a perception that existing State and Federal law enforcement structures were not equipped or able to prevent certain types of criminal activity, loosely described as organised, sophisticated or complex crimes. Royal commissions established by Australian governments had identified as being rife crimes in the areas of taxation evasion, bankruptcy fraud, theft, illegal gambling, currency violations, illegal drug dealing and much more. The Commonwealth decided that existing law enforcement efforts needed "to be supplemented by the establishment of a new standing body with the necessary expertise and powers to make an effective attack on organised crime": Commonwealth, Parliamentary Debates, House of Representatives, 21 October 1982 at 2394 (Neil Brown, Acting Attorney-General). The NCA was "intended to supplement the efforts of regular law enforcement agency bodies, not supplant them": ibid the NCA was given 2 broad functions. The Senate Standing Committee on Constitutional and Legal Affairs, to whom the National Crime Authority Bill 1983 (Cth) had been referred for inquiry and report, described those functions as: (1) at the ordinary level of operations, to gather information and conduct inquiries - thus compiling intelligence; and (2) at the special level of operations, to deal with intractable criminal activity through the exercise of special and non-traditional powers for a law enforcement body: Senate Standing Committee on Constitutional and Legal Affairs, Report on the National Crime Authority Bill 1983 (Cth) (1984) at [1.12], [1.14]. The most important of the special powers was the power to compel the attendance of witnesses to answer questions and produce documents.

7 Surprisingly, the Bill in its original form provided the NCA with few powers through which to carry out its functions, apart from its coercive powers of information gathering. (As to the distinction between a power and a function, see Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 62-63; 96 ALR 673 at 677-678.) There was only cl 17 by which the NCA was given "power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its functions, and any specific powers conferred on the Authority by this Act shall not be taken by implication to limit the generality of this section". This provision was somewhat wider than the position that prevails under the common law. Under the common law, where a statutory function is conferred upon a person there will (when it is necessary) be implied a power to do what is necessary for the performance of that function: Attorney-General v Directors of the Great Eastern Railway Co (1880) 5 App Cas 473. It is not sufficient for the power to be desirable. The power must be necessary in the sense that without it the statutory function will not achieve its purpose: Ward v Metropolitan Police Commissioner [2005] 2 WLR 1114 at 1122. Clause 17 (which is common enough in both State and Federal legislation) was wider than the common law because it was intended to operate on a statutory function not only when the power was "necessary", but also when it was "reasonably incidental to" that function. But its ambit was otherwise uncertain.

8 Clause 17 was the subject of specific consideration by the Standing Committee as was the absence of express powers to enable the NCA to carry out its functions. The Standing Committee noted that cl 17 was of "uncertain scope" (Senate Standing Committee on Constitutional and Legal Affairs, Report on the National Crime Authority Bill 1983 (Cth) (1984) at [3.5]) stating that some of the submissions it had received suggested there was a potential for arbitrary interference with a person's privacy while others thought the power did not go far enough to enable the NCA to carry out its functions.

9 The Standing Committee observed that in its ordinary operations the NCA would have "no direct extraordinary impact on the traditional rights, privileges and freedoms of individuals": ibid at [1.13]. In respect of both the NCA's ordinary and special areas of operations the Standing Committee said that the "functions, powers and abilities of the [NCA] should be explicitly and exhaustively set out": ibid at [1.16]. This was for the reason that "… in the absence of clear and express terms, it will be assumed that parliament did not intend to impair traditional civil liberties": ibid at [1.17]. Moreover, if all the powers were set out, the Standing Committee said that the likelihood of parliament's intended purpose being cut back in the courts and the need for remedial ad hoc legislation would be minimised: ibid at [1.8]. Accordingly it recommended that: "… the Bill should be redrafted to set down the Authority's ordinary functions and to provide the necessary specific power for it to perform those functions": ibid at [3.9].

10 These and other recommendations made by the Standing Committee were accepted by the Senate. The result was that upon its establishment by the National Crime Authority Act 1984 (Cth) in 1984 a series of specific powers were conferred upon the NCA. They were located in the National Crime Authority Act 1984 (Cth), Pt II, Divs 1 and 2. Included among them was the power to assemble and pass on admissible evidence in relation to offences to relevant Attorneys-General or law enforcement agencies and to persons authorised to prosecute particular offences: see generally, National Crime Authority Act 1984 (Cth), s 12(1) and (1A).

11 In 2002 it was decided to replace the NCA, the Office of Strategic Crime Assessments and the Australian Bureau of Criminal Intelligence with the Australian Crime Commission to enhance the capacity of the Australian governments to counteract serious and organised crime. The Federal Government had 2 major concerns. Complex criminal activity engaged in by skilled criminal syndicates was on the rise. "The globalisation of markets had brought with it the globalisation of crime" is how the Attorney-General put it on the second reading of the Bill: Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2002 at 7328 (Daryl Williams, Attorney-General). There was also the risk of terrorism. The Attorney-General said: "… the events of 11 September last year have heightened in all of us an awareness that society is constantly facing new and emerging threats." The new body was designed to play a pivotal role in national law enforcement operations to combat such threats in conjunction with other State and Federal (including Territory) agencies, especially State and Federal police forces. To fulfil its charter it was inevitable that the new body would gather highly sensitive information, the disclosure of which might do untold harm. As we shall see important protective provisions were enacted to deal with this situation.

12 The Australian Crime Commission came into existence with the passage of the Australian Crime Commission Act 2002 (Cth). This was not a new piece of legislation. It was the National Crime Authority Act 1984 (Cth) renamed and appropriately amended. The ACC consists of the chief executive officer, examiners (who are independent statutory officers appointed by the Governor-General) and members of staff: s 7(2) of the Australian Crime Commission Act 2002 (Cth). Its principal functions are to: "(a) to collect, correlate, analyse and disseminate criminal information and intelligence … (b) to undertake … intelligence operations; and (c) to investigate … matters relating to federally relevant criminal activity" (s 7A). The ACC's powers of investigation are similar to those that were available to the NCA but can be used for wider purposes, in particular for intelligence operations. The coercive powers of the ACC are exercised through the examiners. The activities of the ACC are managed by the CEO subject to the policies and directions of the board (s 46A). The board is an important body. Its composition reflects the fact that the ACC is established by Commonwealth legislation supported (for constitutional reasons) by State and Territory legislation. The board consists of the head of each Federal, State and Territory police force, the heads of the Australian Securities and Investments Commission and the Australian Customs Service, the Director-General of Security, the Secretary of the Attorney-General's Department, and the CEO. Thus the board's decision-making will take into account both State/Territory and Federal interests, as well as the interests of particular police forces and prosecuting authorities.

13 The Australian Crime Commission Act 2002 (Cth) makes specific provision for the dissemination of criminal information and intelligence. The following are the 2 provisions in which those powers are found. Section 12, which is headed "Performance of Functions", relevantly provides:

(1) Where the ACC, in carrying out an ACC operation/investigation [as defined in s 4(1)], obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, the CEO must assemble the evidence and give it to:
(a) the Attorney-General of the Commonwealth or the State, as the case requires; or

(b) the relevant law enforcement agency; or

(c) any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence.

(1A) Where the ACC, in carrying out an ACC operation/investigation, obtains evidence that would be admissible in confiscation proceedings, the CEO may assemble the evidence and give it to:
(a) the Attorney-General of the Commonwealth or the State, as the case requires; or

(b) a relevant law enforcement agency; or

(c) any person or authority (other than a law enforcement authority) who is authorised to commence the confiscation proceedings.

(Subsection (1) is in substantially the same terms as s 12(1) of the National Crime Authority Act 1984 (Cth). Subsection (1A) is new.)

14 Section 59 of the Australian Crime Commission Act 2002 (Cth) is the other section. It is an important section and for that reason should be set out in full. It provides:

(1) The Chair of the Board must keep the Minister informed of the general conduct of the ACC in the performance of the ACC's functions. If the Minister requests the Chair to provide to him or her information concerning a specific matter relating to the ACC's conduct in the performance of its functions, the Chair must comply with the request.

(1A) Subject to subsection (2), if a Minister of the Crown of a State who is a member of the Inter-Governmental Committee requests the Chair of the Board to provide him or her with information concerning a specific matter relating to the ACC's conduct in the performance of its functions, being conduct that occurred within the jurisdiction of that State, the Chair of the Board must comply with the request.

(2) If the Chair of the Board considers that disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Chair must not provide the information under subsection (1A).

(3) Subject to subsection (5), the Chair of the Board:
(a) shall, when requested by the Inter-Governmental Committee to furnish information to the Committee concerning a specific matter relating to an ACC operation/investigation that the ACC has conducted or is conducting, comply with the request; and

(b) shall when requested by the Inter-Governmental Committee to do so, and may at such other times as the Chair of the Board thinks appropriate, inform the Committee concerning the general conduct of the operations of the ACC.

(4) Subject to subsection (5), the Chair of the Board shall furnish to the Inter-Governmental Committee, for transmission to the Governments represented on the Committee, a report of the findings of any special ACC operation/investigation conducted by the ACC.

(5) The Chair of the Board shall not furnish to the Inter-Governmental Committee any matter the disclosure of which to members of the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies and, if the findings of the ACC in an investigation include any such matter, the Chair of the Board shall prepare a separate report in relation to the matter and furnish that report to the Minister.

(6) The Chair of the Board may include in a report furnished under subsection (4) a recommendation that the report be laid before each House of the Parliament.

(6A) Subject to subsection (6B), the Chair of the Board:
(a) must comply with a request by the Parliamentary Joint Committee on the Australian Crime Commission for the time being constituted under Part III (the PJC) to give the PJC information relating to an ACC operation/investigation that the ACC has conducted or is conducting; and

(b) must when requested by the PJC, and may at such other times as the Chair of the Board thinks appropriate, inform the PJC concerning the general conduct of the operations of the ACC.

(6B) If the Chair of the Board considers that disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Chair must not give the PJC the information.

(6C) If the Chair of the Board does not give the PJC information on the ground that the Chair considers that disclosure of the information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the PJC may refer the request to the Minister.

(6D) If the PJC refers the request to the Minister, the Minister:
(a) must determine in writing whether disclosure of the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies; and

(b) must provide copies of that determination to the Chair of the Board and the PJC; and

(c) must not disclose his or her reasons for determining the question of whether the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies in the way stated in the determination.

(7) The CEO may give to:
(a) any law enforcement agency; or

(b) any foreign law enforcement agency; or

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

any information that is in the ACC's possession and that is relevant to the activities of that agency or body if:
(d) it appears to the CEO to be appropriate to do so; and

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

(8) The CEO may, whenever it appears to the CEO to be appropriate to do so, furnish to authorities and persons responsible for taking civil remedies by or on behalf of the Crown in right of the Commonwealth, of a State or of a Territory any information that has come into the possession of the ACC and that may be relevant for the purposes of so taking such remedies in respect of matters connected with, or arising out of, offences against the laws of the Commonwealth, of a State or of a Territory, as the case may be.

(9) Where any information relating to the performances of the functions of:
(a) a Department of State of the Commonwealth or of a State;

(b) the Administration of a Territory; or

(c) an instrumentality of the Commonwealth, of a State or of a Territory;

comes into the possession of the ACC in the course of any operations or investigations conducted by it, the CEO may, if he or she considers it desirable to do so:
(d) furnish that information to the Department, the Administration or the instrumentality; and

(e) make to the Department, the Administration or the instrumentality such recommendations (if any) relating to the performance of the functions of the Department, of the Administration or of the instrumentality as the CEO considers appropriate.

(10) A report under this Act that sets out any finding that an offence has been committed, or makes any recommendation for the institution of a prosecution in respect of an offence, shall not be made available to the public unless the finding or recommendation is expressed to be based on evidence that would be admissible in the prosecution of a person for that offence.

(11) The CEO may, whenever it appears to the CEO to be appropriate to do so, furnish to the Australian Security Intelligence Organisation any information that has come into the ACC's possession and that is relevant to security as defined in section 4 of the Australian Security Intelligence Organization Act 1979 (Cth).

15 There are several features of s 59 of the Australian Crime Commission Act 2002 (Cth) to which I should draw attention. The first is that the power (and on occasion the duty) to hand over information is given to or imposed upon (as the case requires) the 2 most senior people in the organisational hierarchy of the ACC: the CEO and the chair of the board. This is a clear reflection of both the importance and sensitivity of intelligence likely to come into the hands of the ACC. The second feature is that parliament has seen fit to impose restrictions upon the dissemination of that intelligence should the dissemination have the potential to cause harm or be ostensibly prejudicial: for example, s 59(2), (5), (6B). Indeed, in such a case only the responsible minister and no one else may have access to that information: see s 59(1).

16 It is also necessary to note s 19. This is in the same terms as s 17 of the National Crime Authority Act 1984 (Cth). While s 19 of the Australian Crime Commission Act 2002 (Cth) does not in terms confer power to disseminate information, according to the ACC the section does serve that function. In due course it will be necessary to rule upon the correctness of this assertion.

17 The ACC does not rely on s 12(1) or s 12(1A) as a source of power to provide to the ATO information obtained from the applicants. The ACC acknowledges that the information that it wishes to hand over is not evidence which would be admissible in any prosecution or in confiscation proceedings. Nevertheless, I will not immediately pass over those provisions. Before leaving them I wish to draw attention to the different categories of persons and authorities to whom information may be given. For this purpose I will concentrate on subs (1), but the comments I make apply equally to subs (1A).

18 Information of the kind described in s 12(1) is required to be given to a person or authority that fits into one of the following 3 categories. The first is a relevant Attorney-General (s 12(1)(a)). The second is a relevant "law enforcement agency" (s 12(1)(b)). "Law enforcement agency" is defined in s 4 to mean: "(a) the Australian Federal Police; (b) a Police Force of a State; or (c) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the States" (emphasis added). The third category is a person or authority (other than a law enforcement agency) "who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute an offence" (emphasis added) (s 12(1)(c)).

19 I have highlighted what may be a significant difference between the language of para (c) of the definition of "law enforcement agency" (the laws) and s 12(1)(c) (a law). A key question upon which the resolution of this action will depend is whether this difference means that the person or authority referred to in para (c) of the definition is one who or which has general responsibility for the enforcement of the laws of the Commonwealth, State or Territory (as the case may be), such as a police force, an Attorney-General, a Director of Public Prosecutions or, as in some States, a Crime Commission or Serious Frauds Office, while the person or authority referred to in s 12(1)(c) is one who or which is concerned only with the enforcement of a particular Commonwealth, State or Territory law.

20 The ACC submits that the ATO is a "law enforcement agency" and that dissemination to it of information obtained from the use of the ACC's coercive powers can be authorised by s 59(7). In support of the submission that the ATO is a law enforcement agency the ACC points to the fact that the Commissioner of Taxation is responsible, at least in part, for the enforcement of "taxation offences". A "taxation offence" is defined in s 8A of the Taxation Administration Act 1953 (Cth) to include a number of offences against a "taxation law" (defined to include "the [Income Tax Assessment] Act or other Act of which the Commissioner has the general administration") as well as offences against certain provisions in the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth), provided they relate to an offence against a taxation law. The Commissioner's responsibility derives from the fact that he or she is given power to commence prosecutions for certain taxation offences and to exercise coercive powers for the purposes of investigating contraventions of tax laws: see, by way of example, Taxation Administration Act 1953 (Cth), ss 8D, 8E, 8F, 8ZJ and 8ZM.

21 The question whether the ATO is a law enforcement agency must be determined solely by reference to the definition given to that expression. In determining the meaning to be given to the definition there are 3 rules I will apply. First, the meaning cannot be influenced by the term that is being defined. To do otherwise would be circular: Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 419; 68 ALJR 907 at 912; 125 ALR 1 at 9. Secondly, a statutory definition should be given its ordinary meaning. It should "be read down only if that is clearly required": ibid at CLR 420; ALJR 913; ALR 10. Thirdly, the meaning must be determined in the context of the legislation in which the definition is found. The context of this particular piece of legislation suggest that in considering the meaning to be given to the definition 2 competing considerations must be kept in mind: (1) serious criminal activity should be detected and punished; and (2) an individual has a right to be free from unjustified interference. It is the second consideration that has led common law courts to read down statutes that interfere with personal liberties. That approach has immediate relevance as the ACC Act encroaches upon the rights of individuals by subjecting them to processes of search and seizure and compulsory provision of information that are not, and never have been, available to traditional law enforcement agencies. Nevertheless, to approach questions of construction on the premise that where there is doubt (however slight) about a statute's meaning one should always favour a construction that will retain existing rights is not always appropriate. If parliament's intention is reasonably clear in legislation such as the ACC Act, the court should not "restrict or impede the working of legislation, even unpopular legislation; to do so would be to weaken rather than to advance the democratic process": R v Inland Revenue Commissioners; Ex parte Rossminster Ltd [1980] AC 952 at 998; [1980] 2 WLR 1 at 37; [1980] 1 All ER 80 at 82; 70 Cr App R 157 at 160.

22 The key to the resolution of the construction question depends upon the meaning of the words "the laws of the Commonwealth or a State" in para (c) of the definition. A person or authority can only be a law enforcement agency if it is responsible for the enforcement of those laws. The definite article "the" is used as an identifier. In general, use of the definite article as an identifier pre-supposes the existence of the thing (an entity, set or quantity) to be identified. When a quantity is being identified that quantity is maximal. The Cambridge Grammar of the English Language (2003) at 369-370, gives as an example of this the following question: "Where did you put the keys?" It notes that we are here concerned with the totality of the keys. Thus if there are 5 keys, a subset of say 2, 3 or 4 is irrelevant: it is the set as a whole that is presented as identifiable in the example. Similarly, that is the only meaning that can be given to the words "the laws" in the definition. It follows that because the ATO is not responsible for the enforcement of "the laws", that is "all the laws", of the Commonwealth or of any State or Territory, the ATO cannot be a law enforcement agency as defined. On the other hand, because the ATO (technically the Commissioner of Taxation) may be authorised by "a law" to prosecute a relevant offence, there may, in an appropriate case, be an obligation under s 12(1)(c) for the CEO to give evidence to the ATO.

23 This result is not as harsh as it may seem. If it is thought necessary for the ATO to receive information in other circumstances, such as information that is relevant to its activities, the ATO may be prescribed by regulation for that purposes. That is contemplated by s 59(7). The regulation-making power found in s 62 allows the Governor-General to make regulations permitted by the Act. Whether the ATO is to become an agency for the purposes of s 59(7) is a matter for the executive, which will presumably act on the suggestion of the CEO or the board.

24 The ACC's fallback position is that it can rely upon the incidental powers in s 19 to pass on information to the ATO. Section 19 confers relative not absolute powers. Each power "is not a power in gross, but a power appendent" to borrow from the language common in constitutional cases: Australian Steamships Ltd v Malcolm (1914) 19 CLR 298 at 309; 21 Argus Law Reports 37 at 40. The power must be "appendent" to a function for the performance of which the powers are necessary or to which they are reasonably incidental: Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 413; 112 ALR 463 at 467; 29 ALD 616 at 619; 10 ACSR 140 at 144; 11 ACLC 235 at 239.

25 The function to which s 19 is said to be appendent for the purposes of giving information to the ATO is that spelt out in s 7A(a) namely to "disseminate criminal information and intelligence". I will assume without deciding, for I know nothing about the character of the information proposed to be given to the ATO, that it is criminal information or intelligence. For the purpose of deciding whether s 19 can be used as a source of power it is necessary, first, to identify with some precision the "things" for which the ACC seeks power. I think there are 2. The first is to decide to whom information is to be disseminated. The second is to disseminate the information to that person or body. I need not dwell on the second. While there is no machinery in the legislation to deal with the mechanics of getting information from the ACC to an appropriate person or agency I am in no doubt that, if it be necessary, s 19 can be utilised for that purpose. The difficult question is whether s 19 is a source of power to decide to whom information is to be given.

26 One way to answer this question is to decide whether the power to make such a decision is: (1) "necessary" for the performance by the ACC of its function to "disseminate criminal information and intelligence" (where the answer is likely to be in the negative); or (2) "reasonably incidental to the performance of [the ACC's] functions" (where the answer may not be so clear). It will be incidental if it is in aid of, or procedural to, the function to which it is attached: Le Mesurier v Connor (1929) 42 CLR 481 at 496; 1 ABC 97 at 112; 36 Argus Law Reports 41 at 45; Victoria v Commonwealth (1975) 134 CLR 338 at 413-414; 50 ALJR 157 at 184; 7 ALR 277 at 340-341.

27 A different, but what seems to me to be a better, approach is to consider the issue more broadly and inquire whether, having regard to the structure of the Australian Crime Commission Act 2002 (Cth), it was contemplated by parliament that s 19 could be used for the purpose for which it is now sought. On this approach, a good starting point is to examine the consequence of a positive answer.

28 The incidental powers conferred by s 19 are exercisable by the ACC. As we know, the ACC consists of the CEO, examiners and members of staff. It necessarily follows that the incidental powers, whatever they may be, are available to each of the CEO, examiners and members of staff to enable them to do those things which they have not been expressly empowered to do, but which are nevertheless "necessary" or "reasonably incidental" to the performance of their respective functions. If, as the ACC says, s 19 is to stand as the source of the power to make a decision regarding to whom information is to be given, it is necessary to identify to whom in the ACC that power has been given. In particular, it is necessary to decide whether, in addition to the CEO or the chair who, when acting under ss 12 and 59, can decide to whom information is to be given and thus have no need for any incidental powers, such a power can be exercised by examiners and members of staff. If it can, that would bring about several results that are unlikely to have been intended by parliament.

29 First there would be a significant alteration in the decision-making structure established by the Australian Crime Commission Act 2002 (Cth). The Act expressly delegates the power of dissemination to the CEO and the chair, whether the dissemination is a matter of duty (as under s 12) or whether the dissemination results from a subjective evaluation of the information and the needs of the agency concerned (as under s 59). Further, if regulations are to be made to add to the class of persons to whom information may be given (say to the ATO), that will almost inevitably follow from a request by the CEO or the board.

30 The second result will be to bypass s 59 and thereby lose the safeguards against unwarranted dissemination established by subss (2), (5) and (6B) of that section. Those safeguards will be lost because in their operation they only circumscribe the powers of the CEO or the chair, as the case may be.

31 The third result is the most capricious. Let it be assumed that the CEO makes a decision, for example, under s 59(7), that certain information should not be given to the ATO. If s 19 confers a parallel power upon examiners and members of staff any one of them could (or at least would have the power to), if he or she were so inclined, over-rule their CEO.

32 All of this suggests that s 19 was not intended to confer upon examiners or members of staff the power to decide to whom information should be given. That leaves the CEO as the possible beneficiary of the power but, as I have said, he or she already has an express conferral of that power and does not need it from an additional source.

33 To summarise, the intelligence that from time-to-time will come into the possession of the ACC may be exceedingly sensitive. Inappropriate dissemination may cause great harm, not only to particular individuals but also to the public at large. If the power of dissemination is confined to those to whom the express powers of dissemination have been given, it will rest with the 2 most senior people in the organisation. Their powers are circumscribed by important protections. That whole system would be undone and the safeguards lost if, by a general section such as s 19, the power to disseminate is put into the hands of others. For my own part I am not willing to construe the section as going so far.

34 The applicants should bring in short minutes to give effect to these orders.