FEDERAL COURT OF AUSTRALIA

Seeter Pty Ltd v The Commonwealth of Australia [2004] FCA 1104

ADMINISTRATIVE LAW – decision of Justice of the Peace to issue search warrants pursuant to s 3E(1) of the Crimes Act 1914 (Cth) – public interest immunity – decision of issuing Justice to issue warrants is a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – Administrative Decisions (Judicial Review) Act 1977 (Cth) exempts such decisions from the requirement to give reasons – application to cross-examine Justice of the Peace as to ‘thought processes’ – whether search warrants can be issued for confidential fishing logs

SEARCH WARRANTS – allegation of offences under the Great Barrier Reef Marine Park Act 1975 (Cth) and the Fisheries Management Act 1991 (Cth) – validity of search warrants – whether the name of issuing officer must appear on the face of the search warrant – whether alleged offences lack specificity and whether this results in invalidity – interpretation of s 38CB(1)(c) of the Great Barrier Reef Marine Park Act 1975 (Cth) – whether there is uncertainty in the boundaries of the areas of the Great Barrier Reef Marine Park – whether the materials seized are within the descriptions in the search warrants

Great Barrier Reef Marine Park Act 1975 (Cth) ss 3, 3B, 30, 31, 38CA, 38CB, Schedule 1

Fisheries Management Act 1991 (Cth) s 95

Crimes Act 1914 (Cth) ss 3E(1), 3R,  3C(1), 3L

Judiciary Act 1903 (Cth) s 39B(1A)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13

Fisheries Management Regulations 1992 (Cth) reg 36

Commonwealth of Australia Gazette No. S242, 19 November 1981

Commonwealth of Australia Gazette No. S195, 31 August 1983

Seeter Pty Ltd v The Commonwealth of Australia (2003) FCA 1330 referred to

George v Rockett (1990) 170 CLR 104 referred to

Baker v Campbell (1983) 153 CLR 52 referred to

Alister v The Queen (1983-1984) 154 CLR 404 referred to

Crowley v Murphy (1981) 52 FLR 123 referred to

Reynolds v Metropolitan Police Commissioner (1985) 1 QB 881 referred to

Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991)

31 FCR 523 referred to

Grofam Pty Ltd v Macauley (1993) 43 FCR 404 referred to

Rogers v Jacobsen (1995) 40 ALD 179 applied

SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA

(ABN 4979321) and ANOR v THE COMMONWEALTH OF AUSTRALIA and ORS

No Q 169 of 2003

SEETER PTY LTD (ACN 009 144 117) T/A GREAT BARRIER REEF TUNA

(ABN 4979321) and ANOR v DARYELLE LESLEY HESTER and ORS

No Q 173 of 2003

SPENDER J

BRISBANE

25 AUGUST 2004

THE COURT ORDERS THAT:

1.                  Each application be dismissed.

THE COURT DIRECTS THAT:

1. The respondents file and serve any submissions with respect to costs within seven days.
2. The applicants file and serve any submissions with respect to costs within fourteen days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     These are two associated proceedings that relate to the issue of search warrants pursuant to s 3E(1) of the Crimes Act 1914 (Cth) (“the Crimes Act”) by Daryelle Lesley Hester, the first respondent in proceedings Q173 of 2003, a Justice of the Peace at the Cairns Courthouse, on information by Mladen Bosnic, a Federal Agent and the second respondent in proceedings Q173 of 2003 and proceedings Q169 of 2003. 

2                     The search warrants authorised the parties who are the second to fifth respondents in proceedings Q173 of 2003 to enter and search the vessels, properties and a vehicle specified in the warrants.  The proceedings also concern the seizure of things taken as a result of the execution of the search warrants, including log books. 

3                     The proceedings were heard together for the convenience of the parties, who agreed that all the evidence was to be evidence in each proceeding.

4                     Proceedings Q173 of 2003 (“the ADJR proceedings”) are the subject of an Amended Application for an order of review amended on 3 March 2004. 

5                     That amended application for an order of review provides:

‘Application to review the decision or decisions of Daryelle Lesley Hester made on 27 October 2003 and 31 October 2003, to issue warrants authorising Mladen Bosnic and others to enter and search:

1.      The following vessels:

a)           ‘Return’ registered number O 883

b)           ‘Quiz’ registered number O 660

c)       ‘Total’ registered number LFB11735

d)      ‘Rummage’ registered number O 850

e)       ‘Fossicker’ registered number O 855344

f)       ‘Balance’ registered number LFB12107

g)      ‘Extractor’ registered number O 775

2.      The following properties:

a)      Lot 39 Aumuller Street Cairns, also recorded as Lot 7 SP 101237 Parish of Cairns

b)      Lot 44- 50 Mission Road, White Rock, Cairns also recorded as Lot 231 NR 1861

          Parish of Cairns

3.      A Motor Vehicle registered 720 EGH

The applicants are aggrieved by the decisions because:

1.  They are the owners of the vessels, properties and motor vehicle referred to above;

2.  The issue of the warrant authorised the interference with their proprietary rights in those vessels, properties and motor vehicle;

3.  The issue of the warrants has resulted in seizure of much material required by the applicants for the efficient operation of their business.

4.  The issue of the warrants breached the confidentiality of certain fishing log books held by the Applicants.

The grounds of the application are –

1.      That there was no evidence or other material to justify the making of the decisions.

Particulars

a)    The decision maker was authorised by section 3E of the Crimes Act 1914, to make the decision to issue the warrants only if satisfied, by evidence on oath, that there were reasonable grounds for suspecting that there is, or there would have been, within the next 72 hours, any evidential material at the premises.

b)    There was no such evidence on oath or other material from which she could reasonably be so satisfied.

2.    Further or alternatively, the decisions, for the reasons particularised in paragraph 1 involved an error of law.

3.    That the decisions were not authorised by the enactment in pursuance of which they were purported to be made.

Particulars

a)    The decisions were purported to be made under section 3E of the Crimes Act 1914;

b)    The decisions purport to authorise the seizure of logbooks, specifically, Australian Pelagic Longline Daily Fishing Log (ALO5);

c)    The legislative scheme providing for the keeping of such logbooks (Fisheries Management Act 1991 and Regulations 1992 s.36) provides for the confidentiality of information contained therein.

d)    Section 3E of the Crimes Act 1914 does not authorise the seizure of information the confidentiality of which is statutorily protected.

4.    Further or alternatively, the decisions to issue the warrants expressly in relation to the logbooks referred to in paragraph 2 (sic) of the warrant in the circumstances particularised therein were otherwise contrary to law.

The Applicants claim -

3     An order that the decisions be quashed or set aside;

4     An order for the return to the applicants of all things seized pursuant to the warrants including all or an information or things deriving from any of the things seized pursuant to the warrants;

5     An order that the respondent pay the applicants’ costs.’

6                     As that application makes plain, proceedings Q173 of 2003 are directed at the decision of Ms Hester to issue the warrants.  However, the relief claimed seeks the return of all things seized pursuant to the warrants, including all or any information or things deriving from any of the things seized pursuant to the warrants.

7                     Section 3E of the Crimes Actprovides:

‘(1)   An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

(2)         An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

(3)         If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.

(4)         If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.

(5)         If an issuing officer issues a warrant, the officer is to state in the warrant:

(a)          the offence to which the warrant relates; and

(b)          a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

(c)           the kinds of evidential material that are to be searched for under the warrant; and

(d)          the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

(e)           the time at which the warrant expires (see subsection (5A)); and

(f)            whether the warrant may be executed at any time or only during particular hours.

(5A)  The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

         Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

(6)         The issuing officer is also to state, in a warrant in relation to premises:

(a)                that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

(i)                 evidential material in relation to an offence to which the warrant relates; or

(ii)               a thing relevant to another offence that is an indictable offence; or

(iii)             evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);

if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

         (b)       whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

(7)     The issuing officer is also to state, in a warrant in relation to a person:

         (a)       that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:

(i)            evidential material in relation to an offence to which the warrant relates; or

(ii)          a thing relevant to another offence that is an indictable offence; or

(iii)        evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);

if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

         (b)       the kind of search of a person that the warrant authorises.

(8)            Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.

(9)            If the application for the warrant is made under section 3R, this section (other than subsection (5A)) applies as if:

(a)         subsections (1) and (2) referred to 48 hours rather than 72 hours; and

(b)         paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.

(10)        An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.

(11)        An issuing officer in a State or internal Territory may:

(a)                issue a warrant in relation to premises or a person in that State or Territory; or

(b)                issue a warrant in relation to premises or a person in an external Territory; or

(c)                issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

(d)                issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.’

8                     Proceedings Q169 of 2003 are the subject of a Further Amended Application, amended on 3 March 2004 (“the Judiciary Act proceedings”). 

9                     While it does not appear on the face of the Further Amended Application, that application is based on s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), which provides:

  ‘The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

…

(c)     arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’

10                  The Further Amended Application in the Judiciary Act proceedings is as follows:

‘This application seeks a declaration that search warrants issued by Daryelle Lesley Hester under the Crimes Act (Cth) be set aside for invalidity.  The search warrants allege offences by the Second Applicant under the Great Barrier Reef Marine Park Act 1975, the Fisheries Management Act 1991.

…

A.     DETAILS OF CLAIM

…

1.      A declaration that the Search Warrants issued on 27 October 2003 and 31 October 2003 by the issuing justice, Daryelle Lesley Hester, at Cairns Magistrates Court in respect of the following fishing vessels, properties and motor vehicles:

a)        Vessels:

a)      ‘Return’ registered number O 883

b)      ‘Quiz’ registered number O 660

c)      ‘Total’ registered number LFB11735

d)      ‘Rummage’ registered number O 850

e)      ‘Fossicker’ registered number O 855344

f)       ‘Balance’ registered number LFB12107

g)      ‘Extractor’ registered number O 775

b)        Properties

a)      Lot 39 Aumuller Street Cairns, also recorded as Lot 7 SP 101237 Parish of Cairns

b)      Lot 44 – 50 Mission Road, White Rock, Cairns also recorded as Lot 231 NR 1861 Parish of Cairns

c)        Motor Vehicle registered 720 EGH

are and were at all times invalid.

2.      An order that all the said warrants be quashed.

…

4.            An order that each and every document, material, thing or any other evidential material, including all or any information deriving from any such items, seized pursuant to the execution of any of the said warrants, be returned forthwith to the applicant.

…

6.            Such further or other order as the Court sees fit.

7.      Costs.’

Background Facts

11                  Mladen Bosnic is a Federal Agent of the Australian Federal Police (“the AFP”).  He is an inspector for the purposes of the Great Barrier Reef Marine Park Act 1975 (Cth) (“the GBRMP Act”).  He is also an officer within the meaning of that term in the Fisheries Management Act 1991 (Cth) (“the FM Act”).

12                  Seeter Pty Ltd carries on business in the name of Great Barrier Reef Tuna, a registered business name which operates a fish wholesaling retail business from premises at 37 - 39 Aumuller Street, Portsmith.  The business, inter alia, runs a fleet of nine tuna longlining vessels permitted to catch yellow fin tuna and other species within an area defined by Australian Fisheries Management Authority (“AFMA) as “Area E”, which overlaps the Great Barrier Reef Marine Park and extends beyond it to the east.  Area E is a special management area for the East Coast Tuna and Billfish Fishery. 

13                  Mr Lamason is a director of Seeter Pty Ltd.  Seeter Pty Ltd is the registered owner of the vessels QUIZ, TOTAL, RUMMAGE, BALANCE and FOSSICKER, and is the owner of vessel EXTRACTOR.  Mr Lamason and his wife own the vessel RETURN.

14                  Mr Lamason is the registered holder of AFMA fishing permits endorsed for commercial fishing in the Eastern Tuna and Billfish Fishery, Longline (Pelagic) method and minor line pole, for the vessels RETURN, QUIZ, TOTAL, BALANCE, FOSSICKER, EXTRACTOR, CONNECT and HOOKED.  Mr Lamason with his wife is the registered holder of AFMA permit for the vessel RUMMAGE.

15                  Mr Bosnic, in an affidavit filed on 11 December 2003, deposes that the AFP is conducting investigations into suspected breaches of the GBRMP Act and the FM Act by commercial fisherman in the Cairns and far north-eastern region.  He swears:

‘3.     In the course of my AFP duties, from my own inquiries and from inquiries made by other AFP officers, I have obtained information which I believe creates reasonable grounds to suspect that Robert L. LAMASON has committed offences against section 38CB of the GBRMP Act 1975 and section 95( 1) of the FMA 1991 .

4.      Section 38CB of the GBRMP Act 1975 provides:

         38CB Permission requirements to be observed for fishing-zoned area

         (1)     A person is guilty of an offence if:

(a)   under a zoning plan, a zone may be used or entered for the purpose of fishing only with the permission of:

(i)        the responsible agency within the meaning of the plan; or

(ii)      the Authority; and

(b)     the person intentionally or negligently uses or enters that zone for the purpose of such fishing; and

(c)      the use or entry is not authorised by a permission granted or transferred to the person under the regulations, being a permission of a kind declared by the regulations to be a  permission to which this section applies; and

(d)   the use or entry is not authorised by an authority given to the person in accordance with a condition to which such a permission is subject.

5.      The maximum penalty for an offence under section 38CB of the GBRMP Act 1975 is a fine not exceeding $220,000 where the offence is committed by a natural person, and, in accordance with section 4B(3) of the Crimes Act 1914, a fine not exceeding $1,100,000 where the offence is committed by a body corporate.

6.      Pursuant to section 15B(1)(b) of the Crimes Act 1914, a prosecution of an individual for an offence against section 38CB of the GBRMP Act 1975 may be commenced within oneyear after the commission of the offence. Pursuant to section 15B(1A) of the Crimes Act 1914, a prosecution of a body corporate for an offence against that section may be commenced at any time.

7.      Section 95(1) of the FMA 1991 relevantly provides:

Offences

95.  (1)  A person must not:

(a)

(b)...  

(c)...

(d)   being the holder of a fishing concession, scientific permit, fish receiver permit, port permit or foreign master fishing licence that is in force, contravene a condition of the fishing concession, permit or licence or a provision of a temporary order; or

(e)   being the holder of a fishing concession scientific permit, fish receiver permit or port permit that is in force, cause or permit a person acting on his or her behalf to contravene a condition of the fishing concession or permit or a provision of a temporary order, as the case may be; or

(f)    being a person acting on behalf of the holder of a fishing concession, scientific permit, fish receiver permit or port permit that is in force, contravene a condition of the fishing concession or permit or a provision of a temporary order, as the case may be; or

(g)   ...

(1AA)   Paragraphs (1)(d), (e) and (f) (and the rest of this section so far as it relates to those paragraphs) apply whether the contravention occurs inside or outside the outer limits of the AFZ.

(1A)     A person does not contravene subsection (1) because of an act or omission that the person is authorised to do, or not to do, as the case may be:

(a)     under the management plan for the relevant fishery;

(b)     under regulations made for the relevant fishery; or

(c)   in relation to a by-catch under regulations made for the purposes of paragraph 14(2)(c).

8.      The maximum penalty for an offence under section 95 of the FMA 1991, where the offence is not in respect of a foreign boat or in relation to a foreign fishing licence, is a fine not exceeding $27,500 where the offence is committed by a natural person, and, in accordance with section 4B(3) of the Crimes Act 1914, a fine not exceeding $137,500 where the offence is committed by a body corporate. Subsection 95(7) provides that a prosecution for an offence against this section may be commenced within 2 years after the commission of the offence.’

16                  At approximately 4.30 pm on Monday 27 October 2003 Mr Bosnic attended at the Registry at the Cairns Magistrates Court and spoke with the first respondent, Daryelle Lesley Hester, who is a Justice of the Peace in the employ of the Magistrates Court of Queensland and issuing officer within the meaning of the Crimes Act.  In the presence of Ms Hester, Mr Bosnic swore the contents and signed the pages of an affidavit in support of an application for the issue of warrants under s 3E of the Crimes Act to search a number of premises and/or conveyances, including:

                     LOT 39 Aumuller Street, Cairns also recorded as Lot 7 SP101237 Parish of Cairns;

                     LOT 44 – 50 Mission Road Whiterock, Cairns, recorded as Lot 231 NR1861 Parish of Cairns;

                     Vessel BALANCE registered number LFB 12107;

                     Vessel CONNECT registered number 0660;

                     Vessel EXTRACTOR registered number 0775;

                     Vessel FOSSICKER registered number 0838;

                     Vessel HOOKED registered number 0736

                     Vessel QUIZ registered number 0884;

                     Vessel RETURN registered number 0883;

                     Vessel RUMMAGE registered number 0850;

                     Vessel TOTAL registered number LFB 11735.

17                  Mr Bosnic deposes that Ms Hester appeared to read the contents of the affidavit and:

‘11.   … After she had finished reading the affidavit, I saw her stamp each page of the affidavit with a stamp containing the Queensland Government coat of arms and the words “Justice of the Peace Qualified” and “Department of Justice & Attorney-General” (“the JP stamp”).  I then saw Ms HESTER write a four (4)-digit number inside the stamp and sign each page.’

18                  Mr Bosnic says he handed Ms Hester eleven warrants in respect of the premises and conveyances earlier referred to, nominating himself as executing officer in respect of each of the warrants.  Mr Bosnic deposes:

‘12.   … Ms HESTER appeared to read each of the warrants, check that each of the addresses and vessels named on the warrants matched the addresses and vessels listed in the affidavit, and check that the three (3) conditions listed on each of the warrants matched the conditions listed in the affidavit.’

Mr Bosnic further deposes:

13.    I then saw Ms HESTER stamp each warrant with the JP stamp and write a four (4) digit number inside the stamp and sign each page of each warrant.

14.    I then saw Ms HESTER write on the front page of each warrant, the words “A Justice”.

15.    In respect of the warrants for the vessels EXTRACTOR, RETURN, BALANCE, RUMMAGE, FOSSICKER, TOTAL, QUIZ and CONNECT, I saw Ms HESTER cross out the word “Magistrate” on the final page of each warrant and write in the words “A Justice of the Peace”

16.    I then took possession of each of the search warrants and departed the courthouse.  Ms HESTER retained the original copy of the sworn affidavit.’

19                  I set out, by way of illustration only, the warrant issued by Ms Hester in respect of the Vessel EXTRACTOR:

‘COMMONWEALTH OF AUSTRALIA

CRIMES ACT 1914: Section 3E

SEARCH WARRANT FOR PREMISES OR A CONVEYANCE

TO:  Federal Agent Mladen BOSNIC

a constable within the meaning of the Crimes Act 1914, who is the executing officer in relation to this warrant;

AND TO any other constable whose name may be written on this warrant in accordance with section 3C(1) of the Crimes Act 1914, in which event that constable shall be the executing officer in relation to this warrant:

WHEREAS I …a Justice, … an issuing officer within the meaning of the Crimes Act 1914, am satisfied by information on oath that there are reasonable grounds for suspecting that there is at

premises located at:

Vessel EXTRACTOR registered number O 775.

evidential material, as defined in the Crimes Act 1914, which satisfies ALL of the following THREE conditions, namely:

FIRST CONDITION

         things which are:

·           Diaries;

·           Logbooks- Australian Pelagic Longline Daily Fishing Log

       (ALO5);

·           Plotters and associated computer storage data;

·           Memos;

·           Any Fishing Instructions;

·           Notebooks;

·           Reports, Letters;

·           Records;

·           Wage Records;

·           Internal company correspondence;

·           Fax Messages ;

·           Fishing Directions/Instructions memos;

·           Records relating to catch and disposal of fish product;

·           Receipts;

·           Invoices;

·           Longlines;

·           Longline hooks; and

·           Radio beacons.

SECOND CONDITION

things which relate to any one or more of the following:

·            Vessel BALANCE registered number LFB 12107.

·            Vessel CONNECT registered number O 660.

·            Vessel EXTRACTOR registered number O 775.

·            Vessel FOSSICKER registered number O 838.

·            Vessel HOOKED registered number O 736.

·            Vessel QUIZ registered number O 884.

·            Vessel RETURN registered number O 883.

·            Vessel RUMMAGE registered number O 850.

·            Vessel TOTAL registered number LFB 11735.

·           Far North Queensland Freight Forwarding Solutions Pty Ltd    A.C.N. 094 546 120;

·            Floorplay Pty Ltd A.C.N. 082 804 788;

·            New West Coaster Pty Ltd A.C.N. 071 061 964;

·            Queensland Abalone Traders Pty Ltd A.C.N. 079 129 294;

·            Reefarm Pty Ltd A.C.N. 010 614 990;

·            Seaex Properties Pty Ltd A.C.N. 069 807 978;

·            Seeter Pty Ltd A.C.N. 009 133 117;

·            Westcoaster International Pty Ltd A.C.N. 093 463 131;

·           Great Barrier Reef Tuna Queensland Business Number 4979321;

·            Cairns Reef Tuna:

·            Robert Lloyd Lamason;

·            Anne Louise Lamason;

·            Ann Louise Lamason;

·            Great Barrier Reef Marine Park Authority (GBRMPA);

·            Australian Fisheries Management Authority (AFMA); and

·            Lamason Trading Pty Ltd.

THIRD CONDITION

         Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offence(s) against the laws of the Commonwealth:

That between 27 October 2002 and 27 October 2003, in waters within the Cairns and Far Northern Sections of the Great Barrier Reef Marine Park, Robert Lamason did, contrary to section 38CB of the Great Barrier Reef Marine Park Act 1975 as amended, intentionally or negligently fish in the marine park in a manner contrary to the zoning plans for the Cairns and Far Northern Sections.

              That between 27 October 2002 and 27 October 2003 in waters described as Area E, of the Eastern Tuna and Bi1lfish Fishery (ETBF), Robert Lamason did, contrary to section 95(1) of the Fisheries Management Act (Commonwealth) 1991, breach conditions of his permit by fishing with in excess of 500 hooks.

         Including any storage medium or storage device which contains any of the above things and any manual, instruction, password or other thing which is needed to gain access to or interpret or decode any of the above things.

I HEREBY issue this warrant which authorises you to enter and search the premises described above.

AND by virtue of section 3F(1) of the Crimes Act 1914 this warrant authorises the executing officer or a constable assisting to do all of the following;

- enter the premises described above;

- search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;

- search the premises for any evidential material that satisfies ALL of the THREE conditions (modify if needed) specified above and to seize any such

evidential material that may be found;

-  seize any other thing found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be:

(i)    evidential material in relation to an offence to which the warrant relates;

(ii)   evidential material in relation to another offence that is an indictable offence; or

(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act).

if the executing officer or the constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

-  seize any other thing found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be a seizable item, in that it is a thing that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

THIS WARRANT does not authorise the executing officer or a constable assisting to conduct a search of a person who is at or near the premises when the warrant is executed.

AND, by virtue of section 3G of the Crimes Act 1914, in executing this warrant:

- the executing officer may obtain such assistance as is necessary and reasonable in the circumstances;

- the executing officer, and any constable assisting in the execution of this warrant who is a police officer, may use such force against persons or things as is necessary and reasonable in the circumstances; and

- any person who has been authorised by the executing officer to assist in the execution of this warrant, but who is not a police officer, may use such force against things as is necessary and reasonable in the circumstances;

AND the executing officer or a constable assisting may exercise such other of the powers available under Division 2 of Part 1AA of that Act as are appropriate in the circumstances of the case:

AND if you exercise the power under section 3L(4) of the Crimes Act 1914 to secure electronic equipment on the premises, and if you then leave the premises, this warrant authorises a further entry to the premises to allow an expert to operate the equipment, provided that the further entry is made within 24 hours or that period is extended under section 3L(7) of that Act.

The offences to which this warrant relates are those specified above in the third condition.

LEGAL PROFESSIONAL PRIVILEGE

NOTE:     This warrant is issued in recognition that a claim for legal professional privilege may be made in respect of documents covered by this warrant and on the understanding that, if that occurs, the executing officer will, as far as is reasonably practicable, follow the course of action set out in the document entitled “Claims for Legal Professional Privilege: Premises other than those of a Lawyer, Law Society or Like Institution” a copy of which is attached to this warrant.

Public interest immunity

NOTE:     This warrant is issued in recognition that a claim for public interest immunity may be made in respect of documents covered by this warrant and on the understanding that, if that occurs, the executing officer will, as far as is reasonably practicable, follow the course of action set out in the document entitled “Claims for Public Interest Immunity” a copy of which is attached to this warrant.

A statement of the rights of the occupier of premises is attached to this warrant.

THIS WARRANT MAY BE EXECUTED AT ANY TIME.

THE TIME AT WHICH THIS WARRANT EXPIRES IS MIDNIGHT AT THE END OF THE SEVENTH DAY AFTER THE DAY ON WHICH THE WARRANT IS ISSUED.

GIVEN under my hand at Cairns

in the State of Queensland this

27th day of October 2003.

………(signature)……………………

A Justice of the Peace in and for the State of Queensland.’

20                  There is a circular stamp, in the annulus of which appears “Justice of the Peace (Magistrates Court) Department of Justice Queensland” and in the centre of which appears “Reg. No. 7735”.

21                  At about 3.30 pm on Tuesday 28 October 2003, in the company of Mr Darryl Chandler, an officer of the Queensland Parks and Wildlife Service, Mr Bosnic boarded the vessel EXTRACTOR and executed the search warrant issued by Ms Hester on 27 October 2003 in respect of the vessel EXTRACTOR.  Mr Bosnic signed a property seizure record number A84723 in respect of the items seized in the search.

22                  At about 6 am on Thursday 30 October 2003, Mr Bosnic briefed constables of the AFP in respect of the execution of the nine remaining warrants issued by Ms Hester on 27 October 2003.  Mr Bosnic appointed executing officers in respect of the respective search warrants by writing the constable’s name in the warrant in accordance with s 3C(1)(b) of the Crimes Act.  Federal Agent Catherine Cowling was appointed the executing officer in respect of the search warrants for the premises at Lot 44-50 Mission Road Whiterock, the vessel TOTAL and the vessel RUMMAGE.   Federal Agent Tania Stokes was appointed the executing officer in respect of the search warrants for the vessel RETURN.  Federal Agent Aaron Appo was appointed the executing officer in respect of the search warrants for the vessel CONNECT and the vessel FOSSICKER. 

23                  Mr Bosnic, on the morning of 30 October 2003, went in the company of other police officers and an officer of AFMA to premises at Lot 39 Aumuller Street Cairns and searched the premises in accordance with the search warrant for those premises issued by Ms Hester on 27 October 2003. 

24                  A solicitor, Ms Anne English, arrived at the premises at Aumuller Street at about 12.20 pm on the 30 October 2003, identified herself as the solicitor for Great Barrier Reef Tuna to Mr Bosnic and the other persons assisting in the search, and stated that the warrants being executed were invalid.  Notwithstanding that claim, which was repeated on a number of occasions, the search continued and the search of the premises at Aumuller Street was concluded at about 2.00 pm.  Shortly afterwards, Mr Bosnic signed property seizure records numbers A84801, A84802, A84803, A84804 and A84805 in respect of the search of the premises.  Mr Bosnic gave Ms English an undertaking, based on legal advice he had received in the context of her claim that the warrants were invalid, that for the remainder of Thursday 30 October 2003 and Friday 31 October 2003, he would not access the seized items. 

25                  Ms English requested a copy of the affidavit supporting the application for the issue of the search warrants which had been presented to the issuing Justice, but Mr Bosnic refused to provide Ms English with a copy of that affidavit.

26                  On Friday 31 October 2003 Mr Bosnic again attended at the Registry of the Cairns Magistrates Court office and swore the contents and signed the pages of a further affidavit in support of an application for the issue of a warrant under the Crimes Act to search the vessel EXTRACTOR.  Mr Bosnic deposes that he advised Ms Hester of the differences in the content of the affidavit on this occasion compared with his affidavit sworn before her on 27 October 2003, and that Ms Hester then followed the same procedure as previously.  Then, after noting that Ms Hester appeared to read the warrant and check the details of the warrant with the details contained in the affidavit in support of it, Mr Bosnic deposes that he saw Ms Hester stamp the warrant with the Justice of the Peace stamp, write a four-digit number inside the stamp and sign each page of each warrant.  Mr Bosnic deposes that he then saw Ms Hester write on the front page of the warrant the words “a Justice”.

27                  Mr Bosnic says that he appointed Federal Agent Kylie Ford as the executing officer in respect of the second warrant for the vessel EXTRACTOR.  At approximately 10.15 am on Friday 31 October 2003 at the Cairns Trawler Base at Portsmith in Cairns, the search warrants in respect of the vessels EXTRACTOR, RETURN, FOSSICKER, BALANCE, TOTAL, RUMMAGE and QUIZ were executed, and the executing officers in respect of the relevant warrant signed property seizure records in respect of the items seized in each search.  Copies of those property seizure records are in the material before the Court.

28                  During the course of the searches, Mr Bosnic says that he received information that Ms English had removed certain items, including a computer and vessel log books from the vessel TOTAL and placed them in the rear of a Toyota Landcruiser station wagon registration number 720 EGH, and that Mr Bosnic himself saw Ms English with Mr Chris Edwards, an employee of Great Barrier Reef Tuna disembarking from the vessel QUIZ carrying a computer and log books.  In respect of these items Mr Bosnic asked Ms English to return the property to the vessel.  Ms English refused to return the property and claimed that the items were the subject of legal professional privilege.  She placed the items in the rear of the Toyota Landcruiser station wagon which was then locked by the employee of Great Barrier Reef Tuna.

29                  Mr Bosnic sought a telephone warrant pursuant to s 3R of the Crimes Act in respect of the Toyota Landcruiser vehicle registration number 720 EGH.  After a conversation by Mr Bosnic to Ms Hester, Ms Hester issued a warrant in respect of the vehicle. 

30                  During the course of the search of the vessel BALANCE, an employee had entered the wheelhouse and locked it from the inside, and after some time Mr Edwards instructed the persons inside the wheelhouse to open the door.  Later that day Federal Agent Pat Meyers attended the Finger C wharf with the search warrant signed by Ms Hester in respect of the Toyota Landcruiser vehicle registration number 720 EGH.

31                  Ms English, according to Mr Bosnic, said to him words to the effect that she could not understand why there was a fuss over the warrant, and the police could have the items in the car.  Federal Agent Meyers then executed the warrant in the presence of Mr Bosnic, and Mr Meyers and Mr Bosnic inspected the items contained therein, and a number of items were seized and recorded on property seizure records A84808 and A84809.

32                  At the conclusion of the searches, according to Mr Bosnic, Ms English again asserted that she was challenging the validity of the warrants and that she was claming legal professional privilege in respect of all items seized.  Mr Bosnic advised Ms English that there was a procedure to be followed in that circumstance, and suggested that if she propose a third party with whom the items could be lodged, Mr Bosnic had no objection to that course being followed.  Ms English suggested that the seized items be lodged with the Registrar of the Supreme Court in Cairns, and at about 2.50 pm, in the company of Ms English, the items seized were lodged in the Registry of the Supreme Court in Cairns.

33                  On 6 November 2003, officers of the AFP conducted a process of imaging the hard drives of the computers seized under the search warrants, which was completed on that day.  The computer seized from the vessel RUMMAGE was returned to Mr Edwards on 6 November 2003, and the computer seized from the vessels EXTRACTOR, QUIZ, TOTAL, BALANCE and FOSSICKER were returned to Mr Edwards on 7 November 2003. 

34                  On 8 November 2003, a search warrant in respect of the vessel HOOKED was executed and a number of items seized from the vessel and recorded on property seizure record number A84754.

35                  On 12 November 2003, an Amended Application in proceedings Q169 of 2003 was filed in the Federal Court of Australia. 

36                  Cooper J had, on 4 November 2003, ordered that upon the second respondent causing all information on all computers seized pursuant to the execution of the search warrants to be imaged, the computers be returned into the possession of the first applicant.  On 13 November 2003, I ordered that an interlocutory application on behalf of Seeter Pty Ltd and Mr Lamason seeking to quarantine documents until the hearing of the principal proceedings be refused, and I reserved the costs. 

37                  I gave ex tempore reasons for that conclusion on that date: Seeter Pty Ltd v The Commonwealth of Australia [2003] FCA 1330.  In those reasons I said:

‘7.     In respect of the question of legal professional privilege, which is the matter which principally concerns me, on the material presently available to me I have no reason to think that any valid claim of legal professional privilege, or client professional privilege as it is more recently referred to, attaches to the documents seized.  Client professional privilege attaches to documents which are brought into existence or which are created for the purpose of legal advice, or which are communicated to a solicitor for the purpose of getting legal advice. 

8.        None of the circumstances here seem to me to attract legal professional privilege, even for interlocutory purposes.  The mere fact that a person hands to his solicitor documents for advice about whether in fact they are caught by the terms of a search warrant, does not render the documents immune from seizure on the grounds of legal professional privilege.’

38                  In both proceedings it has to be recognised that ‘A search warrant …authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof.’: George v Rockett (1990) 170 CLR 104 at 110 (“George v Rockett”).

39                  Mason J said in Baker v Campbell (1983) 153 CLR 52 at 81-2:

‘The search warrant has been described as “part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known” (Attorney-General (Nova Scotia v. MacIntyre (1982) 132 D.L.R. (3d) 385, at p.397, per Dickson J.).  Its function is to authorize a search and seizure of materials which will implicate a person in the commission of the offence.  The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant.

For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorizes the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation.’

40                  Brennan J observed in Alister v The Queen (1983-1984) 154 CLR 404 at 456:

‘It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty.  But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man’s liberty, and the balance must tilt that way: cf. Sankey v. Whitlam (1978) 142 C.L.R., at pp.42, 61-62.’

41                  In Crowley v Murphy (1981) 52 FLR 123, Lockhart J said at 152:

‘But how is the respondent to tell what documents are relevant? Section 67 offences [of the Companies Ordinance 1962] often involve difficult questions of fact and law and a multitude of documents, each establishing a link in a complex chain of proof.  Bearing in mind the requirement that the respondent adhere strictly to the terms of the warrant and that he seize only those documents that he is authorized to seize, it presents him with a task requiring the wisdom of Solomon, the patience of Job and, when the time arrives to take the documents away, perhaps the strength of Hercules.’

42                  At 155 Lockhart J said:

‘The overriding obligation of the searcher is to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances of a particular case he has whatever documents are necessary to answer the terms of the warrant.  Plainly this must vary from case to case.  What is permissible on one occasion is impermissible on another.  Much must be left to the sense of responsibility of the police officer and the person whose premises are to be searched. …’

43                  In Reynolds v Metropolitan Police Commissioner [1985] 1 QB 881 Purchas LJ in the Court of Appeal spoke of the need to observe scrupulously the balance between the importance of assisting the police in the detection of crime and preserving the rights of the individual.  His Lordship continued at 902-903:

‘Provided that the police had reasonable grounds in relation to any particular document or file of documents, or other property, for thinking that it might be connected with any crime committed by the first plaintiff, then it would be open to the jury to find that the removal of it was a justified and reasonable action to take in order to make a further and more detailed examination elsewhere.  But if the jury were not satisfied that the documents involved in the seizure did command the reasonable suspicion of the police then, in my view, the jury ought to have found in favour of the plaintiffs in respect of trespass to those particular documents.’

44                  As Mr Ian Hanger QC for the applicants in each proceedings submitted:

‘The validity of a search warrant is necessarily dependent upon the fulfilment of the conditions governing its issue.’

45                  In George v Rockett, the High Court in its joint judgment said at 110:

 ‘In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property.’

46                  This observation focuses attention, in my opinion, on whether the invasion of privacy and property is in fact arbitrary.  Their Honours noted at 111:

‘To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.’

47                  It is convenient at this stage to deal, first, with the challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) to the validity of the issue of the warrants in this case. 

48                  That challenge ultimately was grounded on claims that the warrants are invalid because they do not contain the name of the Justice of the Peace who issued them, that the material placed before the Justice of the Peace was insufficient to justify the issue of the warrants, that the warrants were too wide in respect of the identification of the offences so as to de-limit the area of the search for things, and that the requirement of regulatory confidence imposed by reg 36 of the Fisheries Management Regulations 1992 has the consequence that a warrant cannot validly be issued to secure access to log books.  The issue of the statutory protection of the confidentiality of the log books was not considered by me on the original hearing of the application under the ADJR Act, and was one of the reasons that the matter was remitted to me ‘for such orders as may appear to the Judge to be appropriate’ in accordance with the reasons of the Full Court.

49                  The applicants sought access to the information on which the warrants were issued.  In discussions with counsel as to the rights of the applicants to access information of Mr Bosnic presented to the issuing Justice, I said to counsel for the respondents:

‘Prima facie, … they’re entitled to the lot … The only parts that they won’t get are those to which you make a valid claim to public interest immunity.’

50                  Ultimately, objection was taken that public interest immunity applied to parts only of that information. 

51                  As Burchett J noted in Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523, with whom Sheppard and Pincus JJ concurred:

‘If in a case under s 10 [of the Crimes Act] an issue is raised as to the sufficiency of the “information on oath” which was placed before the Justice, I do not think the nature of the proceedings is such as to preclude an applicant having access to the information, in the absence of a specific objection.’

And later:

‘I do not think that the information itself necessarily enjoys an immunity from production.  It may be largely formal in its language.  But it may be, on examination, that it details investigations being conducted, material which is protected by the public interest immunity …’

52                  After inspection of the information of Mr Bosnic, I expressed my conclusion that I was satisfied the claim of public interest immunity was properly taken to those parts in respect of which it was claimed.  A copy of the information, about those parts, was then supplied to the applicants.

53                  I am further satisfied that the information on oath provided reasonable grounds for suspecting that there ‘is, or will be within the next seventy-two hours, evidential material at the premises’. 

54                  “Evidential material” is defined by s 3C(1) of the Crimes Act to mean:

‘… a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.’

55                  The applicants unsuccessfully sought that the Justice of the Peace be called in order to answer questions concerning her thought processes at the time she made the decision, and in particular what material she ‘directed her mind to’. 

56                  Section 13 of the ADJR Act provides a mechanism by which a person may obtain reasons for a decision to which the section applies.  However, Schedule 2 cl (e) relevantly exempts from the requirement to give reasons:

‘(e)    decisions relating to the administration of criminal justice, and, in particular:

…

         (iii)    decisions in connection with the issue of warrants, including search warrants and seizure warrants, under a law of the Commonwealth or of a Territory.’

57                  In dismissing an application for leave to deliver interrogatories to a magistrate who had issued search warrants, Heerey J in Grofam Pty Ltd v Macauley (1993) 43 FCR 404 said at 405:

‘Absent an obligation to give reasons, or to keep a record, it would be oppressive for a magistrate to be required to analyse extensive documents and revisit thought processes in relation to events which may have occurred a considerable time ago.’

58                  As a matter of principle under the ADJR Act, judicial review of an administrative decision proceeds on a consideration of the evidence before the decision-maker and the decision-maker’s reasons, if they to give reasons. In the case where the decision-maker, because of the type of decision, is not required to give reasons, it is not appropriate, in my opinion, for the decision-maker to be cross-examined as to their thought processes at the time of making the decision. 

59                  On the hearing of these applications, I declined to issue a subpoena to the issuing Justice for the purpose of asking questions of her about the thought processes that preceded the decision to issue the search warrants.

60                  As to the complaint that the warrants failed to name the issuing Justice of the Peace, with the consequence that a search warrant is invalid if the name of the issuing Justice is not clearly marked on its face, in each case the warrants bear a signature, albeit a signature which itself is difficult to decipher.  However, the foot of each page of the search warrants are signed and bear the mark of the official stamp of the Queensland Justices of the Peace and the handwritten registration number 7735. The warrants are also attested:

‘GIVEN under my hand at Cairns in the State of Queensland this 27th day of October 2003.’

61                  Counsel for the applicants was unable to point to any authority for the proposition that a search warrant is invalid if the name of the issuing Justice is not clearly marked on its face.

62                  As noted above, section 3E of the Crimes Act enables an issuing officer to issue a search warrant where certain conditions are met. Issuing officer is defined in s 3C(1) of the Crimes Act to mean:

(a)          a magistrate; or

(b)          a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be.

63                  In my opinion, the Justice of the Peace who signed each of the search warrants in this case adequately identified her capacity to issue the warrants by signing the document and recording her registration number as a Justice of the Peace.

64                  It is convenient to postpone whether there has been a sufficient identification of the offences against the laws of the Commonwealth to enable an appropriate identification of ‘things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of those offences’, to a consideration of the further amended application in the second proceedings.

65                  As to the question of the confidentiality of the fishing logs, it was submitted by the applicants that because of the confidential nature of fishing logs, a search warrant cannot be validly issued for them. The applicants further submitted that the issuing of search warrants for the fishing logs was done for an improper purpose, that purpose being the attainment by GBRMPA of the confidential logs by virtue of the AFP.

66                  In the affidavit of Mr Bosnic sworn 27 October 2003, that was before the issuing Justice of the Peace, Mr Bosnic said:

‘Catch and Effort Logbooks (ALO5’s) indicate that Great Barrier Reef Tuna is the first receiver of the catch from the vessels operated by Lamason. Great Barrier Reef Tuna was founded by Robert and Ann Lamason in August 1993. They are still the current owners.’

67                  Mr Hanger QC, senior counsel for the applicants, asked Mr Bosnic in cross-examination:

‘how did you come to swear that the log books indicated that Great Barrier Reef Tuna is the first receiver of the catch?’

To which Mr Bosnic replied:

‘… the information came from the Australian Fisheries Management Authority’

68                  The applicants submit that the communication of that information also constitutes a breach of confidentiality. Clearly, access to the log books was sought by Mr Bosnic on the basis of a reasonable suspicion that the log books would afford evidence of the commission of offences.

69                  Regulation 36 of the Fisheries Management Regulations 1992 deals with the secrecy of log books:

‘(1) A person must not:

         (a)   make a record of information that is in a logbook concerning the affairs of another person; or

         (b)   communicate to a person information that is in a logbook concerning the affairs of another person; or

         (c)   give a person part of a logbook in which information is recorded.

         Maximum penalty: 5 penalty units.

(2)  However, a person may do an activity mentioned in paragraph (1)(a), (b) or (c) if the activity is done in accordance with:

(a)     the Act, the Fisheries Administration Act 1991 or these Regulations; or

(b)     an order of:

(i)            a court; or

(ii)          a tribunal; or

(iii)        a person having authority, under a law, or with the consent of parties, to receive evidence.’

70                  In my opinion, Subreg (2) has no application in the present case.

71                  The evidence referred to suggests that there was a communication by AFMA to Mr Bosnic of information derived from log books, that information being that Great Barrier Reef Tuna was the first receiver of the catch from the vessels operated by Mr Lamason. 

72                  If this be a breach of reg 36 on the part of AFMA, the information communicated was not relevant to whether a warrant should issue, in my opinion.  There was, therefore, no obligation to disclose that information to the issuing Justice, or any breach of the obligation to put all material facts before the issuing Justice.  My conclusion is, in my opinion, supported by the observations of the Full Court (Foster, Hill and Lindgren JJ) in Rogers v Jacobsen (1995) 40 ALD 179 (“Rogers v Jacobsen”).

73                  Further, I reject the contention on behalf of the applicants that reg 36 of the Fisheries Management Regulations 1992 preclude a search warrant being validly issued under the Crimes Act in respect of log books, even where the log books satisfy the definition of “evidential material” in the Crimes Act.

74                  In my opinion, it cannot have been, and was not, the intention of the Commonwealth legislature, when reg 36 was enacted, to shield documents which might be significant evidentiary material of the commission of criminal offences from investigatory Commonwealth authorities. 

75                  In Rogers v Jacobsen, Foster J said at 195:

‘To the extent that some of the fishermen may, in the past, have made illegitimate use of the shield of confidentiality provided by s 19, to evade payment of income tax, then, to those wrongdoers, it will now be apparent that the section provides no absolute guarantee of secrecy.  It is vulnerable to a warrant under s 10 of the Crimes Act unless it can be demonstrated to the court that, in the circumstances of the particular warrant, the public interest in maintaining the assurance of confidentiality outweighs the public interest in the protection of the revenue and the detection of crimes against it.’

76                  Subject to the question of whether the warrant adequately identifies the offences (which will be considered in the context of proceedings Q169 of 2003), in my opinion no legal error has been demonstrated in respect of the issue by Ms Hester of the warrants in this particular case, and the application to review her decision to issue the warrants should be dismissed with costs.

77                  I turn now to the Judiciary Act proceedings. 

78                  The first issue concerns the identification of the offences in the search warrant. 

79                  The third condition referred to in each search warrant states:

‘Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offence(s) against the laws of the Commonwealth:

That between 27 October 2002 and 27 October 2003, in waters within the Cairns and Far Northern Sections of the Great Barrier Reef Marine Park, Robert Lamason did, contrary to section 38CB of the Great Barrier Reef Marine Park Act 1975 as amended, intentionally or negligently fish in the marine park in a manner contrary to the zoning plans for the Cairns and Far Northern Sections.

That between 27 October 2002 and 27 October 2003 in waters described as Area E, of the Eastern Tuna and Billfish Fishery (ETBF), Robert Lamason did, contrary to section 95(1) of the Fisheries Management Act (Commonwealth) 1991, breach conditions of his permit by fishing with in excess of 500 hooks.’

80                  The applicants submit that the description of the alleged offences are vague and that the lack of specificity in the search warrants is contrary to the general principles enunciated by the Full Court of the Federal Court (Sheppard, Pincus and Burchett JJ) in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523.

81                  In considering the test to be applied in examining the sufficiency of the statement of an offence in a search warrant Burchett J said at 543:

‘In my opinion, the conclusion emerges clearly that there is no justification for an ‘exact object’ test. The matter should be viewed broadly, having regard the terms of the warrant in the circumstances of each case. The question should not be answered by the bare application of a verbal formula, but in accordance with the principle that the warrant should disclose the nature of the offence so as to indicate the area of search. The precision required in a given case, in any particular respect, may vary with the nature of the offence, the other circumstances revealed, the particularity achieved in other respects, and what is disclosed by the warrant, read as a whole, and taking account of its recitals.

82                  It is convenient to set out again s 38CB of the GBRMP Act:

‘(1)      A person is guilty of an offence if:

            (a)   under a zoning plan, a zone may be used or entered for the purpose of fishing only with the permission of:

(i)            the responsible agency within the meaning of the plan; or

(ii)          the Authority; and

(b)    the person intentionally or negligently uses or enters that zone for the purpose of such fishing; and

(c)     the use or entry is not authorised by a permission granted or transferred to the person under the regulations, being a permission of a kind declared by the regulations to be a permission to which this section applies; and

(d)    the use or entry is not authorised by an authority given to the person in accordance with a condition to which such a permission is subject.

            Penalty: 2,000 penalty units.

(2)       Strict liability applies to paragraph (1)(a).

            Note: for strict liability, see section 6.1 of the Criminal Code.

(3)       In this section:

            fishing has the same meaning as in section 38CA.’

83                  The GBRMP Act defines fishing in s38CA(2) in a broad manner to mean any of the activities listed:

‘(a)    searching for, or taking fish;

(b)          attempting to search for, or take, fish;

(c)           engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish;

(d)          placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons;

(e)           any operations at sea directly in support of, or in preparation for, any activity described in this definition;

(f)            aircraft use relating to any activity described in this definition except flights in emergencies involving the health or safety of crew members or the safety of a boat;

(g)          the processing, carrying or transhipping of fish that have been taken.’

84                  Mr Hanger QC for the applicants submitted that the search warrants were invalid because of the “vagueness” of the offences identified in the warrants. In particular, it was submitted that the reference to both the ‘Cairns and Far Northern Sections of the Great Barrier Reef Marine Park’ created uncertainty due to the differing rules in these areas. Attention was drawn to the fact that in the Far Northern Section there are fifteen types of activities that are provided for and the Far Northern Section consists of six zones. The Cairns Section provides for eighteen types of activities and the Cairns Section also consists of six zones.

85                  It was submitted, on behalf of the applicants, that because of the multitude of activities and zones in each Section, an offence in the combined area of these Sections can potentially be committed in 129 ways. The applicants also submitted that the reference in the warrants to offences being committed in the alternative manners of “negligently or intentionally” and the broad definition of “fishing” provided for in the GBRMP Act, make the scope of the search warrant impermissibly vague.

86                  Mr Griffin SC, counsel for the respondents, drew attention to the position that Mr Lamason did not have a permit of any kind under the GBRMP Act.

87                  Pursuant to s 38CA of the GBRMP Act a person is guilty of an offence if:

‘(a)   the person intentionally or negligently uses or enters a zone for the purpose of fishing; and

(b)     that fishing is not permitted under the zoning plan that relates to the zone

Penalty: 2,000 penalty units.’

88                  Section 38CA creates an offence when a person enters a zone for the purposes of fishing, where fishing is not permitted in that zone.

89                  The meaning of s 38CB(1)(c) is not pellucidly clear. Counsel for the applicant submitted that the reference in s 38CB(1)(c) to the use or entry being into a particular zone ‘not authorised by a permission granted or transferred to the person under the regulations’ creates a pre-condition that the accused has a permit of some kind provided for by operation of the regulations, and that an offence only occurs under this section when the permission granted is exceeded.

90                  Mr Griffin SC, counsel for the respondents, submitted that the phrase ‘use or entry is not authorised by a permission granted’ is properly interpreted as meaning that a person has undertaken fishing activities for which they have not got a permit.

91                  The use of the term ‘a permission granted’ indicates that the legislature was intending to refer to a situation where the person had not been granted ‘a’ permit to do the act in which they have engaged. The position is to be distinguished with the phrase ‘the permission granted’, which if used in this section would have indicated an intention to create an offence where the permission given had been exceeded.

92                  I am of the view that the  intention of the legislature was to create an offence under s 38CB of the GBRMP Act where a person negligently or intentionally engages in an activity for which a permit is needed, and for which the person does not have permission, whether  because the permission given was exceeded, or because no permission under the GBRMP Act had been granted.

93                  I accept that the description of the first offence in the warrant comprehends many possible offences under s 38CB: one can “fish” in many different ways, and there are many manners of fishing which are contrary to the zoning plans for the Cairns and Far Northern Sections of the Great Barrier Reef Marine Park.  Section 38CB is expressed in terms that lack particularity.  It is clear that there has been no particularisation from the generality of the description of the offence first alleged.

94                  Nonetheless, in my opinion the lack of specificity in the warrant is a consequence of the lack of specificity in the section creating the offence.  The lack of specificity, in my opinion, does not invalidate the warrant. 

95                  Mr Hanger QC for the applicants submitted:

‘… our submission is this, that at a minimum – I use this word “searchee” which I made up – but both the searcher and the searchee must know what zone you’re talking about, what type of fishing you’re talking about, what section of the Park you’re talking about, and whether you’re talking about intentional or negligence for the Warrant to be specific enough to be valid, coming back to the line of cases culminating in Beneficial which says what Warrants have got to show, and in the end it’s fairness to both parties without being silly on the part of either party.’

96                  I reject the contention that the warrant must be so specific or particularised.  It must frequently be the case that the precise nature of the offence is not known, nor its precise location, nor the precise manner of fishing, and the purpose of the search warrant is to find out.  In my opinion, the warrants are not “too wide”.

97                  I note that the second offence referred to in the warrants particularises the manner of fishing which is alleged to constitute a breach of the conditions of Mr Lamason’s permit, provides the time frame (albeit a broad one) in which it is alleged that that conduct occurred, and describes the area in which it is said that that conduct occurred.

98                  The next issue which the applicants assert taints the warrants with invalidity concerns the boundaries of the Marine Park.

99                  The applicants submitted that the reference in the warrants to the Sections of the Great Barrier Reef Marine Park creates uncertainty, because the Sections cannot be defined with accuracy. It was said on behalf of the applicants that there are three steps required to locate an offender in a Section of the Marine Park:

1. Working out where the Great Barrier Reef is;

2. Working out where the Cairns and Far Northern Sections are; and

3. Working out where the zones are.

100               The Great Barrier Reef Marine Park is created by s 30 of the GBRMP Act:

‘There shall be a marine park, to be known as the Great Barrier Reef Marine Park, consisting of such areas in the Great Barrier Reef Region as are, for the time being, declared under section 31 to be parts of that Marine Park.’

101               Section 31 of the GBRMP Act states:

‘(1)   Subject to subsection (5), the Governor-General may, by Proclamation, declare an area specified in the Proclamation, being an area within the Great Barrier Reef Region, to be a part of the Marine Park and assign a name or other designation to that area.

(2)          Where an area is, for the time being, declared by Proclamation under subsection (1) to be a part of the Marine Park:

(a)          the waters of any sea within the area;

(b)          the sea-bed beneath any sea within the area;

(c)           the subsoil beneath any such sea-bed, extending to such depth below the sea-bed as is specified in the Proclamation;

(d)          the sub-soil beneath any such sea-bed, extending to such depth below the surface as is specified in the Proclamation; and

(e)           the airspace above the area, extending to such height above the surface as is specified in the Proclamation

         shall be taken to be in the Marine Park and, for the purposes of this Act, part of the area’

102               The Cairns Section of the Marine Park was first Proclaimed in the Commonwealth of Australia Gazette Number S242 on the 19 November 1981. The Far Northern Section of the Marine Park was first Proclaimed in the Commonwealth of Australia Gazette Number S195 on the 31 August 1983.

103               To locate the area that comprises the Great Barrier Reef Region it is first necessary to consider the definition in s 3 of the GBRMP Act. That section defines the Great Barrier Reef Region as, amongst other things, the area described in Schedule 1. Schedule 1 of the GBRMP Act defines the area by reference to a series of longitudes and latitudes.

104               Section 3B of the GBRMP Act relates to interpretation of geographic co-ordinates:

‘(1)    Where it is necessary for the purposes of this Act to determine the position on the surface of the Earth of a point, line or area that is specified by reference to one or more geographic co-ordinates, then that position must be determined, unless the contrary intention appears, by reference to the Australia Geodetic Datum as defined in Gazette No. 84 of 6 October 1966.

(3)     In this section:

         geographic co-ordinate includes:

(a)          a meridian of longitude by itself; and

(b)          a parallel of latitude by itself.

         This Act includes the following:

(a)          the regulations;

(b)          a Proclamation made under this Act

(c)           a plan of management;

(d)          a zoning plan;

(e)           any other instrument made under this Act.’

105               Mr Hanger QC, submitted that because Satellite Positioning systems were now in common usage the reference to Geodetic Datum in the GBRMP Act created uncertainty. It was said that ‘the boundary of the Park is unclear, [it] depends on what satellite navigation system or what longitudinal system you use.’

106               This submission in my judgment fails. The Marine Park is defined according to a known method of plotting geographical areas. It is irrelevant whether that method is commonly used in the industry or not. As the Marine Park is a calculable and determinable area, it is not vague or uncertain.

107               The final matter for consideration concerns the claim that some of the things seized are not within the description of things that can be seized in the warrants, because they are outside the time frame referred to in the warrant, being the time from 27 October 2002 to 27 October 2003, or because the documents seized have no relevance to the commission of any offence by Mr Lamason.

108               In respect of the first of these criticisms, in my opinion the fact that a document was generated at a time outside the time of the alleged offences does not mean that the document has no possible evidential significance.  The test for whether a document might be seized is whether it might have possible evidential relevance.  The time at which a document is created does not necessarily determine the relevance of that material, or the non-relevance of that material to the offences alleged.

109               I am determining whether the documents the seizing of which is challenged on this basis, satisfy the test of possible evidential relevance.  I do, however, reject the contention that a document cannot possibly be evidentially relevant because it came into existence outside the time within which the offences are alleged to have occurred.  This contention, that documents created outside the time period must fall outside those documents covered by the warrant was abandoned at the end of the hearing by Mr Hanger QC.

110               The second aspect of this point is the contention for the applicants that there is no authority given by the warrant in respect of material which does not relate to Mr Lamason personally.

111               An affidavit of Ms Anne English, principal of Bottoms English, the solicitors for the applicants, identifies a number of categories of documents which are said not to relate to Mr Lamerson.  One such category is of documents identified by description as “Payroll Advices” or “Payroll Activity Summary” of a company called Floorplay Pty Ltd.  There is a large number of documents identified in respect of the various vessels, which are described as “Boat Earning Spreadsheets”, and the contention by Ms English is that each of these documents does not relate to Mr Lamason.  There are further documents identified from the property seizure records which are said not to relate to Mr Lamason.

112               It may be accepted that Mr Lamason is not the author of most, if not all, of the Boat Earnings Spreadsheets.  Another category of documents which is said are outside the scope of the warrant because they do not relate to Mr Lamason personally, are documents described as Vessel Trip Sheets.  I am uncertain whether these documents are different from those described as Boat Earnings Spreadsheets in the affidavit of Ms English. 

113               In my opinion, it cannot be doubted that Mr Lamason is the holder of a permit in respect of the ship to which the Vessel Trip Sheets relate.  The documents appear to be catch records for a period covered by the time period alleged in the warrant, being a catch record in respect of a permit held by Mr Lamason. 

114               It seems to me likely, without seeing any of the Boat Earning Spreadsheets and only one of the Vessel Trip Sheet books, that the seizure of those documents is within the warrants.  In respect of company records, I infer that Mr Lamason has some connection, either as director or otherwise, with those companies, but on the sparse material before me I am unable to conclude whether, as a matter of fact, the documents of that kind satisfy the test of possible evidential relevance.

115               I am not satisfied that any basis has been established on which the Court should grant relief as sought in proceedings Q169 of 2003.  Nor has any basis for relief under the ADJR Act in proceedings Q173 of 2003 been made out.

116               For the above reasons, each application is dismissed.

117               I will hear the parties on costs.

Associate:

Dated:              25 August 2004