What is the problem decision-makers face?
Government officials may be empowered under enabling legislation to issue notices or other instruments which compel the production of documents or things.
The recent Federal Court decision of CXXXVIII v Commonwealth of Australia  FCAFC 54 considered when these notices may be found to be invalid, and the High Court will consider that question on appeal in early 2020. This article outlines the relevant findings in that case and explains some of the key pitfalls that can result from imprecise drafting of a notice.
The facts and decision in CXXXVIII
In CXXXVIII the Full Federal Court considered whether a notice to produce was invalid because it imposed obligations with which the Appellant could not possibly comply.
Section 21A of the Australian Crime Commission Act 2002 (Cth) (ACC Act) provides that an examiner may, by issuing a written notice served on a person, require the person to attend at a specified time and place before a member of the staff of the Australian Criminal Intelligence Commission (ACIC) and to produce to that person "at that time and place" a specified document or thing relevant to a special ACIC investigation. A person served with such a notice commits an offence if he or she does not comply with it: section 21A(4).
Officers of the ACIC served a notice to produce on the Appellant at Adelaide Airport. The notice was relevantly expressed in the following terms:
"…require you to:
(b) produce forthwith at the time and place of service the documents or things specified in the Schedule to this Notice relevant to the special ACIC investigation.
You are required to produce the following things in your possession, custody or control:
The Appellant argued that the words "produce forthwith at the time and place of service" imposed an impossible requirement to produce documents or things that were not in his immediate possession or physical custody or control at the time and place of service, at which point he was transiting through an airport.
On appeal to the Full Federal Court, the notice was held to be valid by Justices Charlesworth and Bromwich (with Justice Logan dissenting). They considered that the notice as drafted was consistent with the requirement in section 21A to specify a time for production.
Justice Charlesworth accepted that it was impossible to comply with the requirement to produce forthwith and at the time of service the things described in the schedule that were not in the Appellant's immediate physical possession, custody and control at the time and place of service.
However, Justice Charlesworth noted that, pursuant to section 46(1)(C) of the ACC Act, "any instrument made pursuant to the Act is to be read and construed so as not to exceed the power of the person upon whom the power to make the instrument is conferred."
Ultimately Justice Charlesworth considered that the words "possession, custody and control" were capable of being given a narrower interpretation. Justice Charlesworth held that:
"each of the words possession, custody and control are amenable to a narrow construction. They may, indeed should, be interpreted to refer to immediate possession, actual physical custody and actual physical control. Expressed another way, the second notice is not to be interpreted so as to compel the production of any item or thing that was not capable of immediate production at the time and place that the second notice was served on the appellant. On that interpretation, the second notice is not an instrument made in excess of the examiner’s powers."
This interpretation meant that the notice did not compel the production of any item or thing that was not capable of immediate production at the time and place of service.
Justice Bromwich agreed with Justice Charlesworth that there was no obligation imposed on the Appellant to produce anything outside what was capable of being produced "forthwith at the time and place of service".
Justice Logan, in dissent, concluded that in the context of the notice it was not possible to construe "forthwith" as necessarily dictating production "immediately at the time of service". This is because "forthwith" may include producing an item within a reasonable time thereafter (and not just immediately). Due to this "temporal inconsistency", Justice Logan did not consider it possible to qualify the phrase "possession, custody or control" by reading it to mean "immediate possession, custody or control", and disagreed that the validity of the notice could be upheld by a narrower interpretation. Justice Logan concluded that the notice to produce failed to specify a time for production as required by section 21A.
The High Court granted special leave to appeal from the Full Federal Court on 18 October 2019, and is likely to hear the appeal in April or May 2020.
After CXXXVIII, here's what you need to remember
Irrespective of which way the High Court rules on the validity of the notice to produce in CXXXVIII, statutory instruments, notices or warrants should always be drafted so that they are consistent with the legislative provisions under which the document is being issued, and in a way which makes the obligation being imposed clear and unambiguous. For example, as CXXXVIII shows, if a statute contains a requirement to specify a time and place for production, it is important to be clear about when materials must be produced, because the timing of the production may directly limit the scope of the materials that could be produced under the notice.