FEDERAL COURT OF AUSTRALIA

Zhang v Commissioner, Australian Federal Police [2009] FCA 1170

SEARCH WARRANTS — need for warrant to state the offence to which it relates — statement of the kinds of evidential material that are to be searched for — belief on reasonable grounds when materials being seized — documents seized in excess of terms of warrants

ADMINISTRATIVE LAW — decision to issue a search warrant — a decision of an “administrative character” — decision made “under an enactment” — extension of time — the issuing officer not an officer of the Commonwealth — unavailability of review under Judiciary Act

Held:   1. Extension of time granted

2. Interlocutory relief granted   

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11, 16

Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth)

Crimes Act 1914 (Cth) Pt IAA Div 2

Federal Court Rules O 4 r 3(1)(b)

Adler v Gardiner [2002] FCA 1141, 43 ACSR 42, cited

Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151, cited

Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523, cited

Carter v Minister for Aboriginal Affairs [2005] FCA 667, 143 FCR 383, cited

Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397, cited

Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299, cited

Citibank Ltd v Commissioner of Taxation (1988) 83 ALR 144, cited

Coward v Allen (1984) 52 ALR 320, cited

Crowley v Murphy (1981) 34 ALR 496, applied

Different Solutions Pty Ltd v Australian Federal Police (No 2) [2008] FCA 1686, cited

Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403, cited

George v Rockett (1990) 170 CLR 104, cited

Hart v Commissioner of Australian Federal Police [2002] FCAFC 392, 124 FCR 384, cited

Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145, cited

Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175, 65 ALD 463, applied

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, applied

Johns v Australian Securities Commission (1993) 178 CLR 408, cited

Kennedy v Baker [2004] FCA 562, 135 FCR 520, applied

Minister for Immigration and Multicultural Affairs v Thiyagarajah[2000] HCA 9, 199 CLR 343, cited

Mitchell v New Plymouth Club (Incorporated) [1958] NZLR 1070, cited

Parker v Churchill (1986) 9 FCR 334, cited

Price v Elder [2000] FCA 166, applied

Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393, cited

TVW Ltd v Robinson [1964] WAR 33, cited

Attorney-General’s Department, Review of Commonwealth Criminal Law, Fourth Interim Report: Offences Relating to the Administration of Justice, Offences Against the Government Involving Property or Money, Bribery and Corruption and Search Warrants (Attorney-General’s Department, Canberra, 1990)

LI ZHANG AND ORS v COMMISSIONER, AUSTRALIAN FEDERAL POLICE AND ORS

NSD 977 of 2009

FLICK J

14 OCTOBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The time within which the Applicants may file an Application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended pursuant to s 11(1)(c) of that Act up to 7 September 2009.

2.                  Upon the Applicants giving the usual undertaking as to damages, the First and Second Respondents are prohibited, until further order, from:

(a)                taking any further actions in reliance on the First to Sixth Warrants; and

(b)               authorising any further actions in reliance on the First to Sixth Warrants by any officers of the First Respondent or the Second Respondent; and

(c)                inspecting any documents or copies of documents, whether they be stored electronically or in hard copy, obtained pursuant to the First to Sixth Warrants; and

(d)               authorising any inspection of any documents or copies of documents, whether they be stored electronically or in hard copy, obtained pursuant to the First to Sixth Warrants by any officers of the First Respondent or the Second Respondent.

3.                  Liberty is reserved to the parties to apply to have Order 2 varied to the extent that it is necessary to accommodate any agreement as to the documents or things which may be accessed by the Respondents prior to the final hearing.

4.                  Costs reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 15 April 2009 a series of search warrants were executed at the following premises:

·                    11-13 O’Keefe’s Lane, Kogarah (‘the O’Keefe’s Lane premises’);

·                    6 Derby Street, Kogarah (‘the Derby Street premises’);

·                    20 Wharf Road, Kogarah Bay;

·                    Unit 89/564-576 Railway Parade, Hurstville; and

·                    Unit 1202/1 Kingsway, Cronulla.

2                     The Second and Fourth Applicants carry on their businesses from the O’Keefe’s Lane premises. Although the Derby Street premises have a different address, they are apparently accessible by way of a stairwell from the O’Keefe’s Lane premises. The sole shareholder and director of the Fourth Applicant is the Third Applicant, Mr Peter Chang.

3                     The present proceeding was commenced by way of an Application filed on 7 September 2009. On 29 September 2009 an Amended Application was filed.

4                     On 24 September 2009 the docket judge in the proceeding, Jacobson J, noted undertakings then given (in summary form) not to inspect any of the documents seized, and made further orders. Now before the Court is a contested hearing seeking both:

·                    an extension of time pursuant to s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the Judicial Review Act’) in which to bring a claim for judicial review under that Act; and

·                    interlocutory relief seeking to restrain any inspection of the documents seized until the final hearing of the Amended Application.

5                     It is considered that interlocutory relief should be granted as there is both a serious question to be tried and the prospect of irremediable prejudice to the Applicants should interlocutory relief be refused.

6                     The Applicants contend that for the purposes of the present interlocutory application there is a serious question to be tried in respect to both:

·                    the manner in which the warrants were issued pursuant to s 3E of the Crimes Act 1914 (Cth) (‘the Crimes Act’), the contention being that the warrants were “bad on their face”; and/or

·                    the manner in which the warrants were executed and materials seized pursuant to ss 3F and 3L of the Crimes Act and moved to other premises pursuant to s 3K.

If a serious question is made out, the Applicants further contend that:

·                    the balance of convenience is in favour of granting interlocutory relief until the final hearing, which is set down to commence on 15 December 2009.

A more wide-ranging challenge to the manner in which the warrants were issued pursuant to s 3E was reserved for resolution at a final hearing.

7                     What is of particular concern, at least at the interlocutory stage, is the prospect that in executing the warrants documents and things may have been seized in excess of the terms of the warrants. A further issue of concern is the ability of a person whose premises are being searched to be informed in a meaningful manner as to what may be searched and seized pursuant to a search warrant and his ability to confine those executing a warrant to the terms of their authority.

The Power To Issue Search Warrants and the Warrants Issued

8                     Each of the warrants executed on 15 April 2009 was issued pursuant to s 3E of the Crimes Act and executed primarily pursuant to s 3F of that Act.

9                     Both sections are contained within Pt 1AA of the Crimes Act. That Part was incorporated into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). Those amendments (in turn) had their origins in an interim report now known as the Gibbs Report (Attorney-General’s Department, Review of Commonwealth Criminal Law, Fourth Interim Report: Offences Relating to the Administration of Justice, Offences Against the Government Involving Property or Money, Bribery and Corruption and Search Warrants (Attorney-General’s Department, Canberra, 1990)). “That report and the pre-existing law form an essential part of the context relevant to the interpretation of Pt 1AA”: Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145 (‘Harts Australia No 1’) at148 per Hill, Cooper and Whitlam JJ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 (‘Hart’) at [17], 124 FCR 384 at 390 per French, Sackville and R D Nicholson JJ.

10                  Section 3E provides in part as follows:

When search warrants can be issued

(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.

…

(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.

It will be noted that s 3E(1) requires the “issuing officer” to be “satisfied by information on oath that there are reasonable grounds for suspecting” the matters thereafter set forth. It will be further noted that s 3E(5)(a) and (c) require the “issuing officer … to state in the warrant” both “the offence to which the warrant relates” and “the kinds of evidential material that are to be searched for under the warrant”. In addition to imposing a discipline upon those issuing a warrant to address attention to those matters, ss 3E(5)(a) and (c) also serve as a meaningful reminder to those executing a warrant as to the limitations placed upon their authority.  

11                  Section 3E, it may be noted, is relevantly in much the same terms as the now repealed s 10 of the Crimes Act.

12                  At one time it had been suggested that a “warrant should state the description of the offence in question with a particularity sufficient to enable the person whose premises are being searched to know the exact object of the search”: Parker v Churchill (1986) 9 FCR 334 at 348 per Jackson J; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 153 per Lockhart J. But there has since been a retreat from such an exacting standard. The “precision required”, it has since been suggested, “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”: Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 543 per Burchett J. The objective of the requirement, however, has remained constant. The “requirement to state the offence exists to set bounds to the area of search which the execution of the warrant would involve. … What is significant … is that the warrant disclose the nature of the offence in question so as to indicate the area of search”: Harts Australia No 1 (1997)75 FCR at152 per Hill, Cooper and Whitlam JJ.

13                  Whatever may now be the degree of precision or specificity with which an offence must be stated for the purposes of s 3E(5)(a), a statement of an offence in terms which impose no practical constraint upon those executing a warrant, and which fails to provide real and meaningful perimeters as to the “area of search”, would be a statement that fails to comply with s 3E(5)(a).

14                  For present purposes, however, it is sufficient to consider the terms of s 3E and the terms of the warrants issued thereunder. When considering the ambit of a power to search and seize under a statutory warrant, it is to be recalled that the extent of that power “is that conferred by the statute, no more and no less”: Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397 at 408 to 409. Each of the requirements imposed by s 3E(5) and the other provisions in Pt 1AA, it is considered, must be construed according to the terms used and in a context where the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them: Hart [2002] FCAFC 392 at [65], 124 FCR at 399 to 400per French, Sackville and R D Nicholson JJ.

15                  The phrase “evidential material” is defined by s 3C as meaning:

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

Both of the phrases employed in s 3C, namely “a thing relevant to an indictable offence” and “a thing relevant to a summary offence”, are further defined in s 3.

16                  It was helpfully accepted by Senior Counsel on behalf of the Respondents that the serious questions in respect to whether each of the warrants had been issued in excess of the power conferred by s 3E and whether the authority conferred by each warrant had been exceeded could be tested by reference to the warrant in respect to the O’Keefe’s Lane premises.

17                  That warrant purported to authorise the search and seizure of things that satisfied all of three conditions, namely:

·                    First Condition — being “[t]hings which are originals or copies of any one or more of the following, including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device”. The “following”description of things identified 35“things”;

·                    Second Condition — the prefatory terms of which stated: “[a]nd which relate to any one or more of the following”. There thereafter followed 144 entities and premises; and

·                    Third Condition — the prefatory terms of which stated: “[a]nd as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth”. Seven offences were thereafter identified.

The cumulative effect of these three conditions, it was said, gave rise to 36, 288 “permutations of documents or thing[s]”. Whether the mathematics of this calculation is correct may be left to one side. One any view of it, there is a large number of “permutations”.

18                  The warrants were detailed documents, the conditions extending to nine pages and the warrant in its entirety being some 16 pages in length. The warrants bore on their face a notation that they could be executed between 6.00 am and 9.00 pm and were expressed to expire “midnight at the end of the seventh day after the day on which the warrant is issued”.   

19                  The ultimate submission on behalf of the Applicants was that “[t]he issuing officer could not have had the necessary reasonable satisfaction in respect of each permutation”. If this submission is accepted, it affects each of the warrants issued and each of the premises searched. It would be unnecessary, if this submission were accepted, to go on to consider any question as to the manner in which each of the warrants was executed or the relevance of the fact that most of the evidence focussed upon the search of the premises at O’Keefe’s Lane rather than the other premises. 

20                  Notwithstanding the attraction of resolving the present application in that manner, it is considered preferable to leave this submission presently unresolved. Given the conclusions reached in respect to the alternative manner in which the Applicants seek to advance their claim to interlocutory relief, it is unnecessary to resolve the submission.

The Execution of a Warrant

21                  In circumstances where a warrant has been issued to search premises, it is s 3F(1) which both confers the primary authority to search and to seize and which also prescribes the limits of that authority. That subsection provides as follows:

A warrant that is in force in relation to premises authorises the executing officer or a constable assisting:

(a)        to enter the warrant premises and, if the premises are a conveyance, to enter the          conveyance, wherever it is; and

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

(c)        to search the premises for the kinds of evidential material specified in the      warrant, and to seize things of that kind found at the premises; and

(d)        to seize other things 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)        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 a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and

(e)        to seize other things found at the premises in the course of the search that the             executing officer or a constable assisting believes on reasonable grounds to be              seizable items; and

(f)         if the warrant so allows—to conduct an ordinary search or a frisk search of a                person at or near the premises 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.

Subsection (3) should also be noted. That subsection provides as follows:

If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.

Section 3H(1) further provides that “the executing officer or a constable assisting” must “make available” a copy of the warrant to the “occupier of the premises or another person who apparently represents the occupier”. This person is entitled to be present during a search: s 3P.

22                  Section 3L addresses those circumstances which may arise where there is “electronic equipment” at the premises being searched. That section provides as follows:

Use of electronic equipment at premises

(1)        The executing officer or a constable assisting may operate electronic equipment at the            warrant premises to access data (including data not held at the premises) if he or she               believes on reasonable grounds that:

(a)        the data might constitute evidential material; and

(b)        the equipment can be operated without damaging it.

Note:  An executing officer can obtain an order requiring a person with knowledge of a           computer or computer system to provide assistance: see section 3LA.

(1A)     If the executing officer or constable assisting believes on reasonable grounds that any           data accessed by operating the electronic equipment might constitute evidential material, he or she may:

(a)        copy the data to a disk, tape or other associated device brought to the premises;         or

(b)        if the occupier of the premises agrees in writing—copy the data to a disk, tape or        other associated device at the premises;

and take the device from the premises.

(1B)     If:

(a)        the executing officer or constable assisting takes the device from the premises;            and

(b)        the Commissioner is satisfied that the data is not required (or is no longer     required) for:

(i)         investigating an offence against the law of the Commonwealth, a State or         a Territory; or

(ii)        judicial proceedings or administrative review proceedings; or

(iii)       investigating or resolving a complaint under the Ombudsman Act 1976 in        relation to the Australian Federal Police or the Privacy Act 1988 ; or

(iv)       investigating or resolving an AFP conduct or practices issue (within the           meaning of the Australian Federal Police Act 1979) under Part V of that                 Act;

the Commissioner must arrange for:

(c)        the removal of the data from any device in the control of the Australian Federal           Police; and

(d)        the destruction of any other reproduction of the data in the control of the     Australian Federal Police.

(2)        If the executing officer or a constable assisting, after operating the equipment, finds that        evidential material is accessible by doing so, he or she may:

(a)        seize the equipment and any disk, tape or other associated device; or

(b)        if the material can, by using facilities at the premises, be put in documentary                 form—operate the facilities to put the material in that form and seize the       documents so produced.

(3)        A constable may seize equipment under paragraph (2)(a) only if:

(a)        it is not practicable to copy the data as mentioned in subsection (1A) or to put the      material in documentary form as mentioned in paragraph (2)(b); or

(b)        possession by the occupier of the equipment could constitute an offence.

(4)        If the executing officer or a constable assisting believes on reasonable grounds that:

(a)        evidential material may be accessible by operating electronic equipment at the             premises; and

(b)        expert assistance is required to operate the equipment; and

(c)        if he or she does not take action under this subsection, the material may be   destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

(5)        The executing officer or a constable assisting must give notice to the occupier of the              premises of his or her intention to secure equipment and of the fact that the equipment              may be secured for up to 24 hours.

(6)        The equipment may be secured:

(a)        for a period not exceeding 24 hours; or

(b)        until the equipment has been operated by the expert;

whichever happens first.

(7)        If the executing officer or a constable assisting believes on reasonable grounds that the         expert assistance will not be available within 24 hours, he or she may apply to the       issuing officer for an extension of that period.

(8)        The executing officer or a constable assisting must give notice to the occupier of the              premises of his or her intention to apply for an extension, and the occupier is entitled to             be heard in relation to the application.

(9)        The provisions of this Division relating to the issue of warrants apply, with such     modifications as are necessary, to the issuing of an extension.

In addition to the power to seize conferred by s 3F, it will be noted that s 3L(2) also confers a power to seize.

23                  It should finally be noted that s 3K provides that “[a] thing … may be moved to another place” in the circumstances there mentioned. Subsections (1) and (2) provide as follows:

Use of equipment to examine or process things

(1)        The executing officer or constable assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at   the premises in order to determine whether it is a thing that may be seized under the   warrant.

(2)        A thing found at the premises may be moved to another place for examination or      processing in order to determine whether it may be seized under a warrant if:

(a)        both of the following apply:

(i)         it is significantly more practicable to do so having regard to the timeliness        and cost of examining or processing the thing at another place and the availability of expert assistance;

(ii)        there are reasonable grounds to believe that the thing contains or      constitutes evidential material; or

(b)        the occupier of the premises consents in writing.

24                  Notwithstanding s 3K, the power to seize still derives primarily from s 3F and the language of s 3K is “quite specific”: Hart [2002] FCAFC 392at [92], 124 FCR at 407.French, Sackville and R D Nicholson JJ, in the context of addressing a different issue to that now before the Court, nevertheless there observed:

[86] Where s 3K is relied upon, seizure is deferred until the completion of the examination of things moved from the warrant premises under that section. … [T]he section involves a distinction between moving things from the warrant premises to another place for examination, on the one hand, and seizure of those things, on the other. Section 3K does not specify any time period for the completion of the examination. However, it is ancillary to s 3F. It confers no free standing power of seizure. The purpose of the examination or processing which it authorises under s 3K(2) is to determine whether the things which have been moved from the premises “may be seized under the warrant”. The power to seize still derives from s 3F. It therefore exists only in relation to a “warrant that is in force”. The warrant remains in force only for the period specified in it (s 3E(5)). If seizure has not been made of things moved under s 3K within the period stated in the warrant, then the power to seize lapses. If examination has not been completed the power to examine also lapses. Absent any other lawful basis for retaining the things moved, they must be returned.

…

[92]  The respondents contended that s 3K(2) authorises not only the removal to another place of computers or storage devices in or on which electronic material is stored, but the copying of such material onto storage devices brought to the premises for the purpose and the removal from the premises of those devices. It is a fundamental difficulty in the path of this approach to the construction of s 3K(2) that the language of the subsection is quite specific. It provides that, in certain circumstances, “the things may be moved to another place”. The provision only authorises the moving of a thing to another place for the purpose described. The fact that the legislation, by virtue of the definition of “evidential material”, contemplates that material in electronic form, may be “seized” (without identifying the manner by which it may be seized) does not demonstrate that material in electronic form can be “moved” in accordance with s 3K(2) of the Crimes Act.

Their Honours there also referred to the “need to recognise the operational realities in which warrants are executed”: [2002] FCAFC 392 at [68], 124 FCR at 401.

25                  One purpose achieved by provisions such as ss 3H and 3P is to ensure that the occupier or other person is fully informed as to the extent of the authority conferred by a warrant. He is thereby placed in a position whereby he can observe that the terms of a warrant are not being exceeded. The statement in the warrant of those matters required by s 3E(5)(a) and (c), and the requirement that a copy of the warrant be made available, ensure that the occupier or other person is not reduced to a mere bystander. Just as the issue of a warrant may be challenged in an appropriate Court upon the basis (for example) that the issuing officer erred when reaching the state of “satisfaction” required by s 3E(1), the manner in which a warrant is executed may also be challenged upon the basis (for example) that there did not exist “reasonable grounds” for seizing materials as required by s 3F(1)(d).

26                  Section 3L imposes its own further constraints upon the power that may be exercised, including the limitations in s 3L(3), the requirement for notice in s 3L(5) and the limitation as to the period of time that “equipment” may be “secured” in s 3L(6).

27                  Each of the limitations upon the power conferred by these provisions only assumes additional importance when it is recalled that a search warrant may be issued and executed in respect to premises occupied by persons other than those involved or suspected of being involved in criminal activity. Where the terms of s 3E are satisfied, a warrant may thus be issued in respect to premises occupied by persons unconnected with any crime. The fundamental interference with privacy which is authorised by a search warrant must be constantly borne in mind. Search warrants are “ … intrusions into the sanctity of a person’s domain and concomitantly an interference with his privacy …”: Different Solutions Pty Ltd v Australian Federal Police (No 2) [2008] FCA 1686 at [106] per Graham J (applying: Cloran (1984) 4 FCR at 154 per Lockhart J). Similarly, in TVW Ltd v Robinson [1964] WAR 33 at 37 Negus J observed:

The issue of a search warrant is a very serious matter indeed because it authorizes the invasion of the privacy of the subject in his home or in his business premises. It necessarily involves an interference with the rights of an individual and affects his liberty.

See also: Mitchell v New Plymouth Club (Incorporated) [1958] NZLR 1070 at 1072. Although effect must be given to the terms employed in s 3E, it is also legitimate to bear in mind that the common law has long been “jealous of the prima facie immunity from seizure of papers and possessions”: George v Rockett (1990) 170 CLR 104 at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. 

28                  When addressing the terms of the now-repealed s 10 in Crowley v Murphy (1981) 34 ALR 496, Lockhart J addressed some of the principles relevant to the manner in which a search warrant is executed as follows:

I will not attempt to state exhaustively the procedures that policemen should follow when executing search warrants. That would be both unnecessary and undesirable. What should be done must vary according to the circumstances of each case. But I shall endeavour to give some general guidance.

First, like most statutory powers, the power of enforcing a search warrant must be exercised in good faith.

Second, the power must be exercised for the purpose for which it was conferred. It must not be used for some ulterior purpose. If, for example, it is used to punish the person whose premises are to be entered and searched, plainly that is an ulterior purpose.

Third, the power must be exercised fairly, having regard to all the circumstances.

Fourth, it must be exercised having regard to those affected by its exercise and, in particular, to the rights of those persons. I shall return to this later.

Fifth, the officer executing the warrant must strictly follow the directions contained in it and must not exceed the limits of the authority it confers.

Northrop J agreed: (1981) 34 ALR at 505.

29                  The same principles, it is considered, are equally applicable to a warrant issued under s 3E and executed under s 3F.

30                  For the purposes of the present interlocutory application, it is unnecessary to do more than refer to the breadth of the authority conferred by s 3F and to the constraints imposed upon that authority. The authority conferred is that conferred upon the “executing officer or a constable assisting”. It is not an authority to seize only that which a Court subsequently concludes falls within the terms of the warrant. But the extent of the authority conferred by s 3F is constrained by the requirement that the “executing officer”or “constable assisting” only seize that which he “believes on reasonable grounds” is relevantly either

·               “evidential material in relation to an offence to which the warrant relates”; or

·              “evidential material in relation to another offence that is an indictable offence”

In the absence of the “executing officer” or “constable” forming such a belief on “reasonable grounds”, the warrant confers no authority to seize anything. No authority has been conferred by the legislature or by the warrants to enter a person’s premises and to seize at random documents or things which may be believed to be of interest. There must always remain “reasonable grounds” for the belief set forth in s 3F(1)(d). Authority to seize things other than those described in the warrant (cf Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 at 313) is now expressly addressed in s 3F(1)(d)(ii). But that authority also remains confined by the requirement that there be “reasonable grounds” for the belief that is formed and by the requirement that the thing seized be “in relation to another offence that is an indictable offence”.

31                  The extent of the authority conferred — and the conclusion that those executing a warrant do not have an “unexaminable discretion” — was endorsed by Hely J in Adler v Gardiner [2002] FCA 1141, 43 ACSR 42 at 33 to 34 as follows (citation omitted):

The objective inquiry

[39] The executing officer or constable assisting, has to be satisfied that there are reasonable grounds for suspecting that things seized will afford evidence as to the commission of an offence. The notion of reasonable grounds for a suspicion imports an objective test, but “reasonable” involves a value or normative judgment (Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 167), and there may well be legitimate differences of opinion as to what falls within the term, particularly when it is used in relation to a nebulous expression such as “suspicion”. A court is not entitled to substitute its own opinion on that question for the opinion of the executing officer or constable assisting. That does not mean that the executing officer, or constable assisting, has an unexaminable discretion; it does mean, however, that the officer’s decision is only impeachable if the decision was one which the officer could not lawfully reach on the materials before him or her …

…

[41] The onus, then, is on the applicants to establish that the seizure decisions taken in relation to the disputed documents were infected by reviewable error. …

Preparation for the Execution of the Warrants — The Day Before

32                  Notwithstanding the conclusion that it is unnecessary to resolve the Applicants’ submission as to the warrants being “bad on their face”, considerable concern is nevertheless expressed as to the guidance which warrants of such complexity provide to those executing them and in protecting those whose premises are being searched.

33                  It was perhaps in recognition of the complexity presented by the warrants that a briefing session was held prior to 15 April 2009 with a view to better informing those persons who would be involved in the events of the following day in executing the warrants issued.

34                  On 14 April 2009 Mr Alan Crowe thus conducted a detailed briefing for those who would be responsible for executing the warrants that had been issued. Mr Crowe is a Senior Investigator in what is described as “the Serious Non Compliance … business line of the Australian Taxation Office …”. He is the Eighth Respondent. His Affidavit states in part as follows:

10.        I presented the Operational Order at a briefing to the ATO team leaders, investigators             and forensic officers who would attend the warrant action, as well as F/A Johnstone.                Amongst other things, it outlined the following matters:

10.1      the respective roles of the ATO and the AFP in the searches;

10.2      how the alleged frauds were committed;

10.3      some names, and nature of the interaction between the large number of the   entities in the Hightrade Group; and

10.4      the value of the alleged fraud.

11.        In addition to the Operational Order, at the briefing, to the best of my recollection I also         discussed the period of the alleged fraud and the types of material that would be             relevant to the investigation. The terms and conditions of the warrants were also         discussed at the briefing.

12.        After the briefing, I observed the ATO team leaders met with and addressed their search        teams.

13.        The ATO officers designated as searchers were instructed, as per the AFP assignment           sheet and the Operational Order, to act as searchers. Other ATO officers were                designated as searchers/advisors, in that, because of their knowledge of the    investigation, they could be called upon to advise other searchers during the warrants.              These searchers/advisors work with me and have a good knowledge of the investigation       as they are personally involved in the investigation. The remaining ATO officers, to the             best of my knowledge were mostly experienced investigators who had been engaged in          the execution of warrants for similar matters in the past.

35                  The importance of the warrants to the investigations being undertaken cannot be doubted. Mr Crowe suspected that the amount of money which had been defrauded by the Applicants was approximately $75 million. Another estimate put the figure at $76 million. The suspicion was that suppliers had grossly inflated invoices provided to a property developer for the supply of goods and services or, alternatively, did not in fact supply any goods or services. The suspicion was that the developer had then claimed GST input tax credits in relation to the falsified supplies through the preparation and submission to the Australian Taxation Office of Business Activity Statements. There were over 100 companies suspected of being involved and, of these, it was suspected that almost 40 were involved in the alleged offences.

36                  The detailed steps being taken prior to the execution of the warrants to fully inform those who would be responsible for making decisions the following day to search and to seize were to be expected and, perhaps, inevitable. The matters discussed at that briefing were all relevant to the responsibilities to be discharged and the many individual decisions that would have to be made before each and every document or thing was searched or seized.

37                  Whatever other information was conveyed to those attending the briefing, it is to be expected that the terms and conditions of the warrant assumed appropriate prominence. When Mr Crowe states that “[t]he terms and conditions of the warrants were also discussed …”, it has presently been assumed that the central importance of those warrants was appropriately communicated to those attending. The warrants, after all, made lawful that which would otherwise have been unlawful. That assumption, however, may not be well-founded. The Director of the Serious Non Compliance business line (Mr Paul Anderson), being the person whom Mr Crowe approached on 9 April 2009 with a view to obtaining approval to have warrants issued, attended the briefing presented by Mr Crowe on 14 April 2009. Mr Anderson is the Ninth Respondent. The account he gave is as follows:

[7]        … Mr Crowe conducted the remainder of the briefing, where I recall that the following            matters were outlined:

7.1.       the respective roles of the ATO and the AFP in the searches;

7.2.       how the alleged frauds were committed; and

7.3.       some names, and nature of the interaction between the large number of the   entities in the Hightrade Group.

[8]        I also recall that Mr Crowe discussed at the briefing the value of the alleged fraud and            the types of material that would be relevant to the investigation.

Disturbingly, no reference is there made to any discussion as to the terms and conditions of the warrants and the extent of the authority to search and to seize which was conferred by reference to those terms and conditions. Federal Agent Needham of the Australian Federal Police put the matter no higher in his Affidavit than saying that, in executing the warrants at what he described as the “Kogarah Premises”, he “observed that … the officers had with them a piece of paper with what looked to be a list of the warrant conditions. I observed them referring to the piece of paper when searching and locating items of evidential material”.

38                  Present concern arises on two fronts — one being whether the detailed briefing that was undertaken on 14 April 2009 became a substitute for a detailed consideration of the limitations imposed by the terms of the warrants issued; and, secondly, the utility of such a detailed warrant being presented to the person whose premises were being searched.

39                  Complexity in an investigation can be no reason for not seeking a warrant in detailed terms in order to search and seize materials of relevance to alleged serious wrongdoing. Complexity may be inevitable. The more complex a fraud that is suspected of having been perpetrated, the more complex a warrant may necessarily have to be. Complexity in alleged wrongdoing cannot be a reason to confine those seeking the issue of a warrant to a less extensive warrant than may be appropriate to secure documents or other things of relevance to an investigation.

40                  But obtaining a detailed warrant has the potential to reduce a person whose premises are being searched to a mere bystander little informed by the terms of a warrant as to that which may be searched or seized. In the present proceeding, however, it should (perhaps) be noted that considerable detail as to the concerns of the Australian Taxation Office had been communicated to the Applicants well prior to the execution of the warrant in April 2009. Reference was thus made by Senior Counsel on behalf of the Respondents to a document dated 4 June 2008 recording the results of a completed audit. The detail contained in that explanation, not surprisingly, overlaps to some extent with the conditions imposed in each of the warrants. What may appear to the uninformed as an impenetrable mass of detailed conditions may well have been readily understandable to the Applicants on 15 April 2009.  It is unnecessary to resolve whether or not the representatives of the occupiers of each of the premises being searched on 15 April 2009 knew the subject matter of the search that was authorised and the extent of the authority conferred by each of the warrants.

41                  Neither of these two concerns need be further addressed. There is sufficient detail provided in the evidence now available to the Court as to the manner in which the warrants were executed on 15 April 2009 to give rise to a serious question to be tried.

The Warrants as Executed — A Serious Question To Be Tried?

42                  The first warrant to be executed on 15 April 2009 was that in respect to the premises of Mr Peter Chang. His car was also searched. That search commenced at 6.00 am or 7.00 am on that day.

43                  The next warrant executed was that in respect to the premises at O’Keefe’s Lane. The execution of that warrant commenced at about 9.00 or 9.30 am. The execution of the warrant in respect to the Derby Street premises commenced at approximately 2.00 pm.

44                  It is considered that a serious question arises in respect to the manner in which the search was undertaken and materials seized (or moved) in respect to both:

·                    the computers; and

·                    the documentary records

found at those premises.

45                  An Affidavit filed in support of the application for interlocutory relief by a solicitor acting for the Applicants who attended at the premises being searched (Mr Caplice) set forth the process followed during the course of 15 April 2009 in respect to the execution of the warrant at the O’Keefe’s Lane premises.

46                  Prior to his attendance at those premises, Mr Caplice had a telephone conversation with the Eighth Respondent, Mr Alan Crowe. Mr Caplice requested an opportunity to “review any materials seized under the search warrants so that they can assert any claims they may have for legal professional privilege”. A request that “the search be suspended for a short period of time so that we can properly advise our clients and get instructions” was denied. A search undertaken with a view to precluding meaningful access to legal advice and the opportunity to claim legal professional privilege may render unlawful a search undertaken: Citibank Ltd v Commissioner of Taxation (1988) 83 ALR 144; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403. But such is not the present case.

47                  Upon arrival there was a further conversation with Federal Agent Joanne Piggott and Federal Agent Luke Needham. They are the Third and Fourth Respondents respectively. Federal Agent Piggott was apparently “the AFP officer responsible for executing the search warrant” at the O’Keefe’s Lane premises. Other parties to that conversation were two other solicitors acting for the Applicants, Mr Keith Swan and Mr Tim Dalton. At least two concerns were raised by Mr Caplice during the course of that discussion — one focussed upon how the warrant was to be executed in respect to the computers on site; the second was in respect to possible claims for legal professional privilege. Arrangements were made so that claims for privilege could be made.

48                  In respect to the search of computers, the manner in which the warrant was being executed is potentially more troubling. Part of the discussion is set forth by Mr Caplice in his Affidavit as follows:

That conversation raises concerns as to whether the warrant was truly being executed according to its terms. The concern is whether or not those executing the warrant were directing their attention to and forming the requisite belief as to whether or not that which was being seized was “evidential material in relation to [the] offence to which the warrant” related. A search simply by reference to “key words” may simply identify a pool of information to be searched, but it may fall short of providing “reasonable grounds” for believing that that which is searched may constitute “evidential material”. An initial search by reference to “key words” may be a useful starting point; indeed, there may in some circumstances be little choice but to start a search in such a manner. And such a search may be sufficient to identify documents falling within the second condition of the warrant — but it may say little as to whether the third condition is satisfied.

49                  It is, however, unnecessary to pursue this issue further. Although considerable reservation is expressed as to whether a search for “key words” is sufficient in itself to thereafter authorise the “imaging” of “the whole of the hard drive”, it is enough for the purposes of an interlocutory hearing to conclude that there is a serious question to be tried as to whether such a course was authorised either by the terms of the warrant or ss 3F or 3L.

50                  A further concern in respect to the manner in which the warrant was being executed at the O’Keefe’s Lane premises emerges from a separate Affidavit filed on behalf of the Applicants. The deponent to that Affidavit, Mr Edward Mazzoni, is the director of corporate services of an entity called Pakshun Enterprise Pty Ltd. Mr Mazzoni attended the O’Keefe’s Lane premises and sets forth a statement made by Federal Agent Needham as follows:

“We will need to take all of the servers and some of the hard drives today because we are not able to image them here. We agree to provide your lawyers with copies of the images once they have been imaged and we will also return the computers to you at that time.”

Accepted literally, that is a statement acknowledging that the search which the warrant authorises to be conducted of the premises at O’Keefe’s Lane is not to be undertaken there but at some other undisclosed place. Accepted literally, it is also the expression of an intent to “take all of the servers” irrespective of whether or not there has been any attempt at “operating” the equipment as required by s 3L(2) with a view to determining what may be found upon the “hard drives”. Again, at a final hearing that part of the conversation deposed to by Mr Mazzoni may be put in a broader context. And s 3L(1A) may not clothe the Respondents with sufficient authority to copy the data on the disks in the manner in which they did. Irrespective of whether “data” is to be construed in the manner as concluded by Branson J in Kennedy v Baker [2004] FCA 562 at [60], 135 FCR 530 at 537 to 538, the issue which gives rise to the serious question to be tried remains a question as to whether the manner of execution of the warrants was such as to provide “reasonable grounds” for the belief referred to in s 3L(1A).

51                  Nor is it considered that s 3K necessarily provides the authority to remove “the servers and some of the hard drives”. Such evidence as there presently is available provides little basis for any conclusion to be reached that it was “significantly more practicable”to move equipment for the purposes of s 3K(2)(a)(i). Forensic experts were assisting in the search. And, even if s 3K(2)(a)(i) was satisfied, there remains concern as to whether s 3K(2)(a)(ii) had been satisfied.

52                  On either view, it is considered that at this stage a serious question arises in respect to whether the manner in which the warrant was executed on the O’Keefe’s Lane premises in respect to the computers found on those premises has exceeded the authority conferred by the legislation and by the terms of the warrant as issued.

53                  A serious question of the same kind also arises in respect to the manner in which the warrant was being executed in respect to documents being searched and seized.

54                  Manpower on the part of those executing the warrant, it would appear, presented no difficulty. Mr Mazzoni observed “approximately 22 ATO officers searching through the offices located in the Kogarah business centre”.

55                  Many documents were seized and Mr Caplice stated that by 4.00 pm it had become apparent to him that “the ATO officers had seized a significant volume of documents and other materials” from the O’Keefe’s Lane premises. His concern was that he would not be able to review the entirety of the documents prior to them being taken away.

56                  It was in that context that an agreement was reached that he would be allowed 60 days within which to conduct his review.

57                  By 5.30 pm Mr Caplice further states that he “observed that some of the ATO officers were working at a faster pace than when I had observed them earlier during the day”. He goes on to state that he:

… saw some of the ATO officers taking folders of documents from the shelves, opening them and then only very briefly looking through a few pages before placing them in archive boxes which I assumed contained the documents to be seized.

He further states that he:

... saw some ATO officers taking folders of documents, looking at the cover and spine of the folder and then placing them in boxes which I assumed contained documents to be seized.

He then also had the following conversation with Federal Agent Needham. The conversation was to the following effect:

The question as to how the “ATO” knows that the “documents are caught by the search warrant”, it will be noted, was not answered. Rather than answering that question, the response was to extend an opportunity subsequent to the execution of the warrant “to determine the relevance of those seized documents to the search warrant”. But the responsibility, it is considered, is the other way around — it was up to those executing the warrant to seize only that which was authorised by law.

58                  The “boxes” to which reference was made turned out to be 44 separate boxes containing documents. Mr Crowe’s Affidavit annexed photographs of six of these 44 boxes. The photographs exposed on each box a completed document called an “Evidence Location Slip”. Each such “Slip” had room for there to be completed information as to the “Item No”, “Officer”, “Time Located”, “Date” and “Specific Location Found”. That information was to be completed by those officers seizing the boxes. Some, but not all, of the photographs also exposed a typed list as to the contents of what was said to be in the individual boxes — for example “Financial Reports” and named companies. Such typed lists had been prepared by the Applicants presumably at some time prior to 15 April 2009. Some boxes, however, had no such indication as to their contents other than what appeared adjacent to “Specific Location Found”, as labelled by the Australian Federal Police or the Australian Taxation Office during the operation. One box, for example, had been labelled with the words:

ACCOUNTS OFFICE

CABINET 3

FOLDERS

How such a description could provide any basis for a belief that Condition 2 or Condition 3 of the warrant was satisfied remained, with respect, elusive.

59                  Mr Mazzoni’s Affidavit states that at approximately 4.00 pm on 15 April 2009 he saw two officers of the Australian Taxation Office reviewing lever-arch folders and overheard the following conversation:

Placed in context at a final hearing, this conversation may assume a different character. At present, however, it permits a finding that those searching the premises were doing so not by reference to the conditions imposed by the warrant itself, but simply by reference to whether a folder “relates to the search warrant”. And, if it did, there was no further review to see whether anything within the folder may possibly have satisfied the conditions of the warrant. The mere relationship of “anything” in the folder to the warrant was considered to be sufficient authority to “grab the whole folder”.

60                  Upon the basis of this evidence, a serious question exists as to whether documents may have been seized without proper regard to the terms of the warrants themselves.

61                  It may be expected that such evidence as is presently before the Court may well be supplemented by further evidence provided on behalf of the Respondents at a final hearing. The events as they unfolded on 15 April 2009 may be better explained when further evidence is available. Even the evidence as presently filed on behalf of the Respondents exposes a series of checks and balances put in place during the course of the 15 April 2009 operation with an intent to ensure that documents and things were only seized in accordance with the terms of the warrants. Mr Crowe deposes that some officers of the Australian Taxation Office and officers of the Australian Federal Police were designated “to act as searchers”; other officers were designated to act as “searchers/advisors”. Those designated as “searchers/advisors” had “a good knowledge of the investigation as they are personally involved in the investigation”. But whether those checks and balances ensured compliance with the terms of the warrants may be further pursued at a final hearing.

62                  For the purposes of an interlocutory hearing it is inappropriate to express any more concluded view as to the manner in which the warrants were executed. It is sufficient to conclude that a serious question arises as to whether they have been executed in accordance with their terms.

63                  Also left unexplained by the Respondents was the need to complete the search and seizure of documents on 15 April 2009. The warrant in respect to the O’Keefe’s Lane premises, and presumably the other warrants as well, were issued on 14 April 2009 and did not “expire” until 7 days thereafter. Admittedly the warrant only authorised access until 9.00 pm on each day of operation. But that time had been extended by agreement with the Applicants. In some circumstances it may be permissible to speculate as to the risk of documents being secluded in undisclosed locations if those executing the warrants were to leave premises unattended and resume a search on the following day or some other day. But there was no such evidence in the present case and no evidence as to any attempt being made to reach further agreement with the Applicants to secure the premises in a manner satisfactory to all of those involved with a view to resuming the search on 16 April 2009.

Balance of Convenience

64                  An assessment as to balance of convenience considerably overlaps with a consideration of some matters relevant to the extension of time as sought by the Applicants.

65                  It may presently be noted, however, that as the evidence stands at present an available inference is that those executing the warrants — at least at the O’Keefe’s Lane premises — were, on one view of the evidence, seizing documents without proper or adequate regard to the constraints imposed by the warrant itself.

66                  In such circumstances, that inference and that alone may be sufficient to form a conclusion that the balance of convenience rests heavily in favour of the Applicants. If interlocutory relief were to be refused, any success that the Applicants may have at a final hearing would be largely rendered nugatory: cf Price v Elder [2000] FCA 166 per Emmett J. The rights of individuals are not to be whittled away by conferring greater power upon those executing warrants than the already extensive power they presently possess. Damages, in such a context, may not be an adequate remedy.

67                  Such factors, however, must necessarily be taken into account together with other considerations.

68                  Also to be taken into account is the effect that the seizure of documents is having upon the business of the Applicants. That effect is not insignificant. Some significance is also to be attached to the estimated cost of about $240,000 that would be incurred by the Applicants in further reviewing the materials seized. Whether the task is as complex as is asserted and whether the costs are as high as may presently be believed may be queried. And, whatever may be the extent of those costs and whatever may be the explanation as may finally emerge, the Applicants have made decisions since April 2009 to not challenge the validity of the warrants or the manner of their execution until now. To now raise the question of costs is a very much belated consideration that should be given less weight than had such matters been raised at the outset. But some additional costs will unquestionably be incurred and some weight can be given to that consideration when assessing the balance of convenience.

69                  These considerations, together with those also relevant to the granting of an extension of time pursuant to s 11(1)(c) of the Judicial Review Act, it is considered, weigh in favour of granting interlocutory relief.

70                  Although such evidence as is presently available focuses attention primarily upon the events as they unfolded at the O’Keefe’s Lane premises, and not so much the other premises at which other warrants were also executed on 15 April 2009, such evidence as exists is not such as to warrant any different approach to the material seized at different locations.

71                  Persons executing warrants such as those presently in issue have to do so with a fully informed sense of the responsibilities imposed upon those authorised by law to access, perhaps forcibly, homes and premises. A search warrant remains a serious intrusion upon the rights of individuals. Such powers as are conferred may be exercised in accordance with the authority conferred — but no more. The powers conferred are already extensive and intrusive.

72                  Although the manner in which the warrants were executed was directed to the events as they unfolded at the O’Keefe’s Lane premises, there is no reason to believe that any different approach was adopted in respect to the execution of the warrants at the other premises.

73                  And, although it may be possible to isolate those documents seized from premises other than O’Keefe’s Lane, or to isolate at least some of those documents seized at those premises after a particular point of time on 15 April 2009, it is not considered appropriate to now attempt to do so. Nor is it possible to do so now given the fact that there is no time recorded at which some documents or things were in fact seized. Such a task, however, may be appropriate when considering the form of any final relief. There is considered to be a sufficiently serious question that arises as to the manner in which the warrants were exercised as to warrant interlocutory relief extending to all of the documents and things seized at all of the premises.

74                  The Applicants accept, however, that a different conclusion should be reached in respect to a limited category of documents that have already been reviewed on behalf of the Applicants. To the extent that documents have been reviewed, the Applicants accept that the balance of convenience favours granting access to that material insofar as that material is not privileged.

The Judicial Review Act — An Extension of Time: ss 11(1)(c) and 16

75                  A final comment should, perhaps, be noted as to the form of the Amended Application which was expressed to be:

An application under sections 11(1)(c) and 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and/or section 39B of the Judiciary Act 1903 (Cth) for relief in relation to the grant and/or execution of certain search warrants purportedly issued pursuant to section 3E of the Crimes Act 1914 (Cth).

76                  Section 11 of the Judicial Review Act provides for the manner in which an application under that Act is to be made and s 11(1)(c) imposes (inter alia) a requirement to lodge an Application in the Registry within 28 days of the decision the subject of review. It is ss 5, 6 and 7 of that Act that confer jurisdiction upon this Court pursuant to the terms of that Act. If the jurisdiction of this Court which is sought to be invoked is to include that conferred by the Judicial Review Act, it may be that the Amended Application fails to comply with O 4 r 3(1)(b) of the Federal Court Rules: cf Kennedy [2004] FCA 562 at [5], 135 FCR at 523 per Branson J.

77                  Whether any further amendment is sought to be made to the existing Amended Application, however, remains a matter for the Applicants to address and for the docket judge who has this proceeding assigned to him to resolve.

78                  Section 11(1)(c) assumes present relevance because the events now the subject of the present proceeding took place on 15 April 2009 and the initial Application was not lodged until 7 September 2009 — a period some four months out of time. Reliance upon s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) may not present such a problem for the Applicants — but reliance upon s 39B could not permit review of the decision of the “issuing officer” to issue the warrants, that officer not being an “an officer … of the Commonwealth”. If an extension of time were granted, the decisions to issue the warrants would also be susceptible to review pursuant to the Judicial Review Act. Decisions to issue warrants, it may be accepted, are decisions of an “administrative character” (Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175 at [26], 65 ALD 463 at 470 per Drummond J)and decisions made “under an enactment” (Kennedy [2004] FCA 562 at [7], 135 FCR at 524 per Branson J).

79                  An extension of time pursuant to s 11(1)(c) is thus now sought. Indeed, if an extension of time is not granted, no interlocutory relief founded upon this Court having jurisdiction pursuant to the Judicial Review Act would be possible.

80                  Section 11(1) provides as follows:

(1)        An application to the Federal Court or the Federal Magistrates Court for an order of                review:

(a)        …; and

(b)        …; and

(c)        shall be lodged with a Registry of the court concerned and, in the case of an                application in relation to a decision that has been made and the terms of which                were recorded in writing and set out in a document that was furnished to the       applicant, including such a decision that a person purported to make after the              expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court   concerned (whether before or after the expiration of the prescribed period)       allows.

The principles relevant to the exercise of the discretion conferred by s 11(1)(c) have been summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349.

81                  Included amongst those matters relevant to the exercise of the discretion are “the merits of the substantial application” and prejudice to the respondent, although it is recognised that “the mere absence of prejudice is not enough to justify the grant of an extension”.

82                  It is considered that the merits of the case as sought to be advanced by the Applicants are such that an extension of time should be granted. The discretion to extend time in the present proceeding has been exercised by reference to the merits of the case together with those other matters referred to by Wilcox J.

83                  Two submissions advanced on behalf of the Respondents, however, warrant specific attention.

84                  First, Senior Counsel on behalf of the Respondents quite properly relied upon the public interest in permitting those responsible for enforcement of the criminal law to continue their investigations. This consideration was rightly advanced as of relevance to both the discretion to grant interlocutory relief and to the discretion to grant an extension of time pursuant to s 11(1)(c) of the Judicial Review Act. In Coward v Allen (1984) 52 ALR 320 Northrop J had concluded in respect to a warrant issued under the now-repealed s 10 of the Crimes Act that there was a serious question to be tried in relation “to the manner in which the warrants were executed and whether the seizure of things was valid”: (1984) 52 ALR at 336. His Honour nevertheless declined relief. In doing so His Honour concluded:

In my opinion, the motions for interlocutory injunctions should be refused. The balance of convenience weighs in favour of the respondents. In the public interest, they should have a reasonable time to examine the things seized, to decide whether to prosecute or not, and to retain the things needed as evidence in support of any prosecutions. The other things should be returned to the applicants. The court hearing those criminal proceedings may have to determine, on the principles expressed in Bunning v Cross, whether evidence obtained by means of the search warrants is admissible or not. Any civil action arising from the seizure could be continued at the conclusion of those criminal proceedings. If no prosecutions are commenced, the applicants would be free to continue with their actions based on the unlawful execution of the warrants. In the meantime, the public interest requires that the respondents to the actions should be able to continue their investigations. Accordingly, the motions for interlocutory injunctions are refused.

A valuable safeguard which adequately protected the interests of those whose property was wrongly seized lay, it was said, in the discretion of the Court — should there be a prosecution — to exclude such evidence. In the context of considering whether documents should be returned, in Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 405, Hill J likewise observed:

I am thus placed in the situation where there are competing views, although it must be said that the preponderance of view is in favour of refusing to order the return of items, even where those items have been illegally seized, if there are criminal proceedings pending in which the items may be used as evidence. While the court would not wish to be seen to be rewarding members of the police who obtain possession of material without lawful authority, there is to be weighed against that a public interest in the administration of and non-interference with justice. Should the court order that material, albeit invalidly obtained, to be used in evidence in a pending prosecution be delivered up to those from whom it was taken the prosecution, which might otherwise succeed, could be frustrated.

Of course, the question whether the items in the present case, if otherwise admissible, should be admitted in evidence in the pending prosecution, despite the fact that they were obtained without lawful authority, will be a matter for the judicial officer hearing the prosecution: Bunning v Cross (1978) 141 CLR 54 ; 19 ALR 641. The existence of this discretion suggests to me that I should not interfere with the pending prosecution by requiring the documents seized to be returned but leave instead to the judicial officer presiding on that prosecution the question whether the material illegally obtained should be admitted into evidence in the prosecution.

85                  The importance of the enforcement of the criminal law may readily be accepted. It is self-evidently in the public interest that those who commit criminal offences should be brought to account. Those who commit fraud, including a fraud upon the public revenue, should be brought to account. It is equally of importance that those investigating suspected criminal conduct be able to exercise all powers as are conferred upon them by the legislature to access materials and to secure the availability of all materials lawfully seized for the purposes of any subsequent proceeding. But it is not considered that either Northrop J or Hill J was attempting to do anything other than to recognise that aspect of the public interest and apply it to the facts before them.

86                  Albeit very conscious of the importance in “not interfer[ing]” with an investigation such as the present, it is not considered that that interest either alone or in combination with other considerations warrants the refusal of either an extension of time in which to commence the present proceeding or the refusal of interlocutory relief.

87                  There is one additional factor relevant to the extension of time, albeit not a factor conclusive as to the manner in which that discretion is to be exercised. In circumstances where it has been concluded that there is a serious question to be tried, a refusal of an extension of time necessarily has the consequence that an applicant is denied access to this Court to vindicate his rights pursuant to the Judicial Review Act. Such rights, it may be presently accepted, may be pursued, at least in part, by reliance upon s 39B of the Judiciary Act. Notwithstanding the importance of the public interest in the enforcement of the criminal law, there is also a very important public interest in people having access to this Court — even in circumstances where an Application has not been filed within the time prescribed.

88                  The second matter raised by Senior Counsel on behalf of the Respondents which warrants specific attention is the failure on the part of the Applicants to raise at the outset any intention to challenge the validity of the warrants or the manner in which those warrants were executed. Senior Counsel on behalf of the Applicants frankly accepts that an intention to challenge the validity of the warrants was not raised prior to the commencement of the present proceeding in September 2009 but maintains that the manner in which the warrants were executed had been raised at a far earlier point of time. If the manner of execution of the warrants was raised, it was certainly not raised unambiguously with the Respondents.

89                  A review of the correspondence and other communications which passed between the legal representatives of the Applicants and the Respondents commencing on 15 April 2009 exposes detailed consideration being given to the means whereby the Applicants could access and review the materials seized. Notwithstanding the numerous exchanges of correspondence, there nowhere appears in that correspondence reservation on the part of the Applicants of any intention to challenge either the validity or manner of execution of the warrants. The Respondents were at no point of time unequivocally informed that the very basis upon which the documents or other things were seized may be put in issue. All that the Respondents were aware of was the commitment to putting in place a regime whereby access to the seized documents and things could be facilitated and quickly resolved.

90                  Had such reservations been expressed at the outset to those representing the Respondents, the Respondents would then have been put in a position where they could have formed a view as to whether the validity of the warrants or their manner of execution should be resolved at a far earlier point of time. To raise such matters some five months after the warrants were issued and executed has denied the Respondents that opportunity.

91                  Inferences are thus available that the Applicants by finally commencing their proceeding in this Court in September 2009 have either deliberately delayed seeking relief or are now doing so for the purpose of further delaying or frustrating the Respondents’ access to the materials seized on 15 April 2009.

92                  Although such inferences would be relevant to the exercise of the discretion conferred by s 11(1)(c) (and the grant of interlocutory relief), the course which it is considered is more appropriate is to presently leave unresolved whether such inferences should be made. Even if inferences were drawn, they would not have led to an adverse exercise of the discretion to extend time or the grant of interlocutory relief.

93                  The Respondents suffer little additional prejudice by granting an extension of time or the grant of interlocutory relief. Such interlocutory relief as is now granted is for a limited period — it is for a period slightly in excess of 2 months until the final hearing which is due to commence on 15 December 2009. When the final hearing is imminent, it would be a wrong exercise of the discretion to refuse the extension of time and to preclude the matter being fully resolved when all of the relevant facts can be fully explored.

94                  A final observation should be made in respect to s 16 of the Judicial Review Act and the express reference to it in the Amended Application. Subsection (1) of s 16 provides as follows:

On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:

(a)        an order quashing or setting aside the decision, or a part of the decision, with effect                from the date of the order or from such earlier or later date as the court specifies;

(b)        an order referring the matter to which the decision relates to the person who made the            decision for further consideration, subject to such directions as the court thinks fit;

(c)        an order declaring the rights of the parties in respect of any matter to which the decision        relates;

(d)        an order directing any of the parties to do, or to refrain from doing, any act or thing the          doing, or the refraining from the doing, of which the court considers necessary to do    justice between the parties.

95                  To the extent that there may have been some unstated assumption on the part of the Applicants at the outset that s 16 may have conferred some unconstrained power or authority on this Court to grant interlocutory relief, such an assumption must be rejected. In Johns v Australian Securities Commission (1993) 178 CLR 408 at 434 Brennan J observed (citations omitted):

The relief which may be ordered under s 16(1)(d) of the AD(JR) Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party. Section 16(1)(d) does not set the Court on an uncharted course without legal reference points by which to steer. …

However, s 16(1)(d) applies only when the making of an order is “necessary to do justice between the parties”. That means justice according to law. It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an equitable obligation of confidence.  …

If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s 16(1)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the AD(JR) Act. ...

See also: Minister for Immigration and Multicultural Affairs v Thiyagarajah[2000] HCA 9 at [34], 199 CLR 343 at 356 to 357; Carter v Minister for Aboriginal Affairs [2005] FCA 667 at [39], 143 FCR 383 at 395 to 396.

96                  Whatever further amendments to the existing Amended Application may be considered appropriate on the part of the Applicants should not stand in the way of the Applicants presently obtaining interlocutory relief. The jurisdiction of the Court was not put in issue, nor was its power to grant interlocutory relief if a proper basis emerged upon which it should do so. Such defects as may presently appear in the form of the Amended Application can readily be addressed, if necessary, by further amendment.

Conclusions

97                  An extension of time should be granted within which the Applicants may commence the proceeding in reliance upon the Judicial Review Act.

98                  For present purposes it is unnecessary to express any view as to the validity of the warrants as issued on 14 April 2009.  Their validity has for present purposes been assumed.

99                  It is the manner in which those warrants were executed which gives rise to a serious question to be tried.

100               Upon the Applicants giving the usual undertaking as to damages, the balance of convenience favours the grant of interlocutory relief. Costs, it is considered, should be reserved.

ORDERS

101               The Orders of the Court are:

1.                  The time within which the Applicants may file an Application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) be extended pursuant to s 11(1)(c) of that Act up to 7 September 2009.

2.                  Upon the Applicants giving the usual undertaking as to damages, the First and Second Respondents are prohibited, until further order, from:

(a)                taking any further actions in reliance on the First to Sixth Warrants; and

(b)               authorising any further actions in reliance on the First to Sixth Warrants by any officers of the First Respondent or the Second Respondent; and

(c)                inspecting any documents or copies of documents, whether they be stored electronically or in hard copy, obtained pursuant to the First to Sixth Warrants; and

(d)               authorising any inspection of any documents or copies of documents, whether they be stored electronically or in hard copy, obtained pursuant to the First to Sixth Warrants by any officers of the First Respondent or the Second Respondent.

3.                  Liberty is reserved to the parties to apply to have Order 2 varied to the extent that it is necessary to accommodate any agreement as to the documents or things which may be accessed by the Respondents prior to the final hearing.

4.                  Costs reserved.

Associate:

Dated:         14 October 2009