FEDERAL COURT OF AUSTRALIA

[2004] FCA 562

Kennedy v Baker

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today but form no part of the judgment.  It must be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.  This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.

6 May 2004

FEDERAL COURT OF AUSTRALIA

[2004] FCA 562

Kennedy v Baker

SUMMARY OF EFFECT OF REASONS FOR JUDGMENT
GIVEN ON 6 MAY 2004

      These reasons for judgment concern the execution on 13 November 2003 of a search warrant issued pursuant to the Crimes Act 1914 (Cth) at business premises occupied by the applicant, Mr Kennedy.  On 25 March 2004 Justice Gyles published a judgment concerning the execution on the same day (ie 13 November 2003) of a warrant at Mr Kennedy’s home.

      The first respondent, Mr Baker, a member of the Australian Federal Police, was the executing officer in relation to the warrant executed at Mr Kennedy’s business premises.  He was assisted by other members of the Australian Federal Police, officers of ASIC and experts in computer forensics.  During the course of the execution of the warrant, Mr Baker directed that a copy be made of the hard drive of the personal computer ordinarily operated by Mr Kennedy’s personal assistant.  The copy hard drive was removed from the business premises, with Mr Baker’s approval, by an officer of ASIC.  As yet neither Mr Baker nor ASIC has sought to access the data in the copy hard drive.

      In this proceeding Mr Kennedy challenged the authority of Mr Baker to direct that the hard drive of the personal computer be copied and to permit the copy of the hard drive to be removed from the business premises.  Mr Kennedy sought an order declaring that neither Mr Baker nor ASIC is entitled ‘to examine, process, copy or otherwise access or use the imaged hard drive or any copy thereof or any data contained therein’.  He further sought an order requiring the copy of the hard drive to be delivered to him.

      The issue of whether Mr Baker was authorised to cause the hard drive of the personal computer to be copied, and the copy removed from the business premises, required consideration of the extent of the authority given to an executing officer by subs 3L(1A) of the Crimes Act 1914.  Subsection 3L(1A) was inserted into the Crimes Act by the Cybercrime Act 2001 (Cth).  Mr Kennedy argued, in effect, that the subsection only authorised information held in the hard drive that itself fell within the terms of the warrant to be copied.  The respondents argued, in effect, that the subsection treated the information or data held in the hard drive as a single body of information and authorised the copying of that information in its entirety.

      The judgment concludes that the construction of subs 3L(1A) for which the respondents argued is the correct construction of the subsection.

      The judgment also rejects the arguments advanced by Mr Kennedy that:

(a)                Mr Baker did not believe on reasonable grounds that any data accessed by operating the personal computer fell within the terms of the warrant; and

(b)               Mr Baker did not give Mr Kennedy an adequate opportunity to make a claim of legal professional privilege in respect of the copy hard drive.

      The judgment does not identify the formal orders to be made in the proceeding.  The parties will be given an opportunity to address Justice Branson on the question of the appropriate final orders.

The full text of the judgment is available on the Federal Court’s website at: www.fedcourt.gov.au