FEDERAL COURT OF AUSTRALIA

Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the first, second and third respondents as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    By its originating application (OA) dated 24 June 2019, as amended by leave, the applicant, the Australian Broadcasting Corporation (ABC), challenges a warrant issued pursuant to s 3E of the Crimes Act 1914 (Cth) (Crimes Act) (the warrant) on 3 June 2019, to Agent Ian Brumby of the Australian Federal Police (AFP). The warrant, which authorised a search for certain evidential material at the premises of the applicant, was executed on 5 June 2019 and material was seized.

2    The application seeks, inter alia, declarations that the search warrant is invalid and that the search and seizure of material pursuant to that warrant was unlawful, and that Agent Brumby and other AFP agents are not entitled to examine the material seized; an order that the material seized be returned; and an injunction restraining anyone at the AFP from dealing with the material seized in any way.

3    The application relied on nine grounds in support of the relief sought and whilst some of these grounds were ultimately not pressed, those that remained were categorised by the parties into four heads of challenge to the validity of the warrant: (1) that the proper construction of s 3E of the Crimes Act does not authorise the issue of a search warrant in circumstances that disproportionately burden the implied constitutional freedom of discussion of government and political matters (paragraph [18A] OA); (2) challenges on the face of the warrant, that it did not comply with ss 3E(1), 3E(5)(c) and 3E(5)(a) of the Crimes Act (paragraphs [19], [20] OA); (3) that the warrant misdescribed the offences in s 73A(1) and (2) of the Defence Act 1903 (Cth) (Defence Act) so as to amount to a failure to comply with ss 3E(1) and 3(5)(a) of the Crimes Act (paragraphs [21], [22] OA); and (4) that the decision by the AFP to seek the warrant and the Registrar’s decision to issue the warrant were legally unreasonable (paragraphs [23], [24] OA).

4    For the reasons given below each of the four heads of challenge fails.

Factual background

5    This chronology of events is taken from the Statement of Agreed Facts and Issues (Agreed Statement) filed by the parties and the evidence given in the proceedings.

6    On 11 July 2017, at approximately 6.02 am, the ABC published a series of online stories by ABC employees Mr Daniel Michael Oakes and Mr Sam Clark entitled “The Afghan Files” on its website (Afghan Files Stories). The contents of each of those online stories were updated later that same day, and again on 14 and 15 July 2017. The Afghan Files Stories reported on, inter alia, the operations of the Australian Defence Force (ADF) in Afghanistan. Preceding these stories, on 10 July 2017, the ABC broadcast an episode of its program 7.30 entitled “Afghan veteran raises disturbing allegations over the killing of civilians in Afghanistan” (7.30 Episode). Mr Oakes and Mr Clark were also the authors of this 7.30 Episode. The Afghan Files Stories made reference to documents described as “the Afghan Files”, being “[h]undreds of pages of secret defence force documents leaked to the ABC”, including documents with the security classification “SECRET” (to be used when compromise of the confidentiality of information could be expected to cause serious damage to national security, the national interest more broadly, or serious damage to organisations or individuals), and the caveat “AUSTEO” (meaning access permitted to the information was limited to Australian citizens who hold the appropriate security clearance). In preparing the Afghan Files Stories, Mr Oakes and Mr Clark relied on information provided to Mr Oakes by informants in circumstances where Mr Oakes had promised not to disclose the informants’ identity. The Afghan Files Stories stated that they were based upon information provided by such sources.

7    The AFP commenced an investigation in connection with the Afghan Files Story (AFP Investigation).

8    On 5 September 2018, Mr David William McBride was charged with theft contrary to s 131.1 (1) of the Criminal Code 1995 (Cth) (Criminal Code), which is said to relate to this AFP Investigation. On 30 October 2018, Mr McBride entered a plea of not guilty to this charge. Mr McBride was between 2005 and 2009 a commissioned officer in the Australian Army Reserve, and from 2009 to 2017 a commissioned officer in the Australian Regular Army. Between June 2008 and May 2016 Mr McBride held a security clearance which permitted him access to documents classified as SECRET.

9    On 13 September 2018, the AFP requested that three ABC employees, Mr Oakes, Mr Clarke and Mr Gavan Morris (Director of News, Analysis and Investigations) participate in interviews or assist with the AFP Investigation, which they refused on 4 October 2018.

10    On 24 January 2019, the AFP contacted the ABC about the possibility of conducting a search of the ABC’s premises. This involved oral and written communication between Agent Brumby and Mr Michael Rippon, solicitor employed by the ABC. This involved, inter alia, the AFP informing the ABC that they were at a point where they would seek a s 3E warrant to be served on the ABC, and requesting the ABC’s agreeance to a manner in which it might be executed to create minimal interference with the ABC. The AFP proposed, if the ABC agreed to provide assistance as required by a warrant, that a copy of the warrant be served on the ABC and they be given 2 to 3 weeks to gather the material and when they had done so, the AFP would attend its premises, provide the sworn warrant and obtain the material sought under it. The ABC declined the proposal.

11    On 7 March 2019, Mr McBride was charged with two further offences: unlawfully giving information as to defences, contrary to s 73A(1) of the Defence Act; and unlawfully disclosing a Commonwealth document contrary to s 70(1) of the Crimes Act.

12    On the same day, an article was published by the Canberra Times newspaper about the prosecution of Mr McBride which referred to him admitting to handing over documents to journalists, including at the ABC, but that he would defend what he had done on legal grounds. This was one of various media outlets that reported during March, May, June and July 2019 that Mr McBride made public statements concerning the allegations against him.

13    On 1 April 2019, the AFP requested that two ABC employees, Mr Oakes and Mr Clarke, provide copies of their fingerprints and palm prints.

14    On 30 May 2019, Mr McBride pleaded not guilty to the additional offences with which he is charged (as above at [11]) and on that day he was committed to stand trial in relation to the charges described at [8] and [11] (the McBride Proceedings).

15    On 31 May 2019, a further article was published by the Canberra Times newspaper about the prosecution of Mr McBride which again referred to him admitting to handing over documents to journalists, but defending what he had done on legal grounds.

16    On 3 June 2019, Registrar Kane, employed in the Local Court of New South Wales, issued the warrant on the application of Agent Brumby. The warrant authorised Agent Brumby, or a constable assisting him, to enter the ABC's premises in order to search for specified classes of things that there were reasonable grounds for suspecting would afford evidence as to the commission of identified offences by Mr McBride and Mr Oakes. The identified offences in relation to Mr McBride were those with which he had been charged. In relation to Mr Oakes the offences were unlawfully obtaining military information, contrary to s 73A(2) of the Defence Act, and dishonestly receiving stolen property from Mr McBride, contrary to s 132.1 of the Criminal Code.

17    On 4 June 2019, Agent Brumby emailed the ABC the first two conditions in the warrant. On 5 June 2019, at the request of the ABC, prior to the search, Agent Brumby emailed the third condition of the warrant.

18    On 5 June 2019, approximately one hour later, Agent Brumby executed the warrant on the premises of the ABC and material was seized pursuant to that warrant. During the execution of the warrant, legal representatives and counsel for the ABC were involved in discussions with the AFP. Counsel for the ABC stated at the outset that they wished to preserve its position as to the validity of the warrant. The warrant was carried out in one conference room where an ABC employee operated a computer (initially a laptop and then a larger screen), overseen by the AFP, predominately Agent Brumby. There were refinements to the searches made as the AFP eliminated a large group of documents as not satisfying the terms of the warrant. The ABC’s legal representatives were permitted to make observations about whether particular documents fell within the scope of the warrant. Documents possibly attracting legal professional privilege were placed in a separate electronic folder. At the conclusion, the materials the AFP proposed to seize were transferred to two USB sticks, which were then sealed. The ABC was given a printed list of the documents. One hundred and twenty four documents were seized, including duplicates. Apart from what occurred in the conference room, no other search was conducted. A mutual undertaking was agreed to the effect that the AFP would not disclose or act upon any seized materials for a certain period of time to permit review of the seized documents by the ABC for the purpose of it making particular claims in relation to the documents.

19    On 13 June 2019, the Guardian published an article about the McBride Proceedings, with statements in the article being attributed to Mr McBride, noting that Mr McBride did not dispute leaking the material but that he intended to argue he was acting on his duty to report illegal conduct by the government.

20    On 24 June 2019, the ABC instituted proceedings in this Court, supported by an affidavit of Michael Antony Rippon affirmed 24 June 2019, applying for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of the challenge and the orders sought have, with leave of the Court, been amended on a number of occasions since the application was first filed. Attached to these reasons, marked as Annexure A is the version of the originating application which proceeded to hearing (the underlining representing amendments made since the original application).

21    On 18 July 2019, a video (and/or transcript of a video) was uploaded to the website of the Gold Coast Bulletin which was said to be an interview with Mr McBride in which he is quoted as stating: “I’ve already admitted I gave the documents…it was my duty to do so because the government was breaking the law and my duty is to the people of Australia, not to the government”.

22    On 8 August 2019 the Commonwealth Director of Public Prosecutions filed an indictment in the McBride Proceedings alleging five counts, with an amended indictment filed on 16 October 2019 (which did not relevantly change the charges).

23    On 18 December 2019, the Court was informed, by way of email from the parties to chambers, of the following:

Dear Associate

The respondents wish to draw the Court’s attention to the fact that the matter of R v David William McBride (SCC0127/19) has now been listed for a trial of 10 days, commencing on 2 March 2020.

The parties agree that the fact of the listing has no impact on the substantive issues to be determined in this proceeding. However, given the interconnection between the two proceedings, and the previous indications of likely trial dates that have been provided to the Court, the respondents considered that it was appropriate to inform her Honour of this development.

The applicant has also requested that we bring the following matters to the attention of the Court: 

1.    A joint statement of facts has been filed in the McBride proceeding, which has narrowed the issues in dispute in that proceeding, which the applicant understands to have the consequence that the alleged production of documents by Mr McBride to journalists will not be a matter contested at trial.

2.    The matter of Smethurst & Anor v. Commissioner of Police & Anor proceeded for hearing before the High Court of Australia on 12 and 13 November 2019. During the hearing of that matter, part of the oral argument before the Court was focused on the requisite precision for the drafting of search warrants.  A decision has not yet been handed down in that matter.

24    There has not been any suggestion or request that my decision be delayed pending the High Court judgment. I note that Smethurst & Anor v. Commissioner of Police & Anor (S196/2019) was a matter referred as a Special Case to the High Court and, while I am not aware of all the details, it relates to a different warrant, in different terms, involving a different offence provision. I am mindful that proceedings of this nature (a challenge to the validity of the issue of a search warrant which has been executed) involving criminal investigations should ordinarily be dealt with as expeditiously as appropriately possible.

25    Mr Kane, the first respondent in these proceedings, has filed a submitting appearance (save as to costs). The reference hereafter in these reasons to “the respondents’ submissions” only refers to the Commissioner of the AFP (the second respondent) and Agent Brumby (the third respondent).

Preliminary observations

26    Before considering the evidence led and the specific arguments and issues raised by this application, it is appropriate to make a number of general observations.

27    First, this application for judicial review alleging invalidity of the warrant based on the application for and issue of the search warrant, is to be determined as at the time of those events: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 (Williams v Keelty) at [157] per Hely J. Events that occurred thereafter cannot bear on those issues. The applicant has not challenged the execution of the warrant. However, in the event that the applicant succeeded in establishing any of the grounds argued, the manner in which the warrant was executed could be relevant to the discretion as to whether the material seized should be returned: Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 (Caratti (No 2)) at [461] per Wigney J.

28    Second, the warrant is in the three condition format, as approved in Dunesky v Elder [1994] FCA 1569; (1994) 54 FCR 540 (Dunesky v Elder) at 557 per Lockhart, Beaumont and Hill JJ, by which the necessary threshold of the dual suspicions referred to in s 3E(1) of the Crimes Act, as to the presence of evidence at the premises sought to be searched having the capacity to prove the commission of an offence, are sought to be established by referring to: (1) things proposed to be searched for; (2) persons, entities or topics that those things relate to; and (3) offences that such things will afford evidence of: Australian Broadcasting Corporation v Kane [2019] FCA 1716 (ABC v Kane) at [13] per Bromwich J.

29    Relevantly the warrant is in the following terms:

Whereas I [Martin Kane] an issuing officer within the meaning of section 3E of the Crimes Act 1914, am satisfied by information on oath that there are reasonable grounds for suspecting that there is (or will within the next 72 hours be) at the premises located at:

[ABC’s premises]

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

First condition: Things 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:

•    Handwritten/digital notes

•    Diary/ies

•    Correspondence - internal and external

•    Emails and other electronic forms of messaging

•    Minutes

•    Reports

•    Briefing Documents

•    Assessments

•    Graphics, sketches, photographs or imagery/vision - drafts and final

•    Story pitch

•    Planning logs

•    Broadcast and online schedules

•    Raw or unedited footage in its entirety

•    Journalist's piece to camera

•    Scripts - drafts and finals including voice overs

•    Story boards/plans

•    Status updates

•    Website content

•    Documents classified as 'Secret'

Together with any manual, instruction, password or other thing that assists to gain access to or interpret or decode any of the above things.

Second condition: And which relate to any one or more of the following:

•    David McBRIDE

•    Daniel (Dan) OAKES

•    Samuel (Sam) CLARK

•    Gaven MORRIS

•    Chris SMITH

•    Australian Broadcasting Corporation (ABC)

•    National Reporting Team

•    Australian Defence Force (ADF)

•    Department of Defence

•    The Australian Army

•    Special Forces

•    Special Operations Command (SOCOMD)

•    Special Operations Task Group (SOTG)

•    Special Air Service Regiment (SASR)

•    2nd Commando Company (2CDO)

•    Headquarters Joint Operations Command (HQJOC)

•    Operation SLIPPER

•    Afghanistan

•    The 7. 30 Report

•    The Afghan Files

•    Inside the Afghan Files

•    Rules of Engagement

•    The Ops Room

•    Ghost Three Zero

•    Chief of the Defence Force (CDF)

•    Acting (and/or) Secretary of Defence

•    Chief of Army (CA)

•    Chief of Joint Operations (CJOPS)

•    http://theopsroom.com

•    https://www.abc.net.au/news/2017-07-11/inside-the afghan-files/8696182

•    https://www.facebook.com/abcnews.au/videos/inside-the-afghan­ files/10156950722999988/

•    https://www.abc.net.au/7.30/afghan-veteran-raises-disturbing-allegations­ over/8695400

•    https://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by­ australian-special-forces/8466642

•    https://www.abc.net.au/news/2017-07-11/defence-inquiry-investigating­ killing-of-taliban-detainee-in-hut/8616602

•    https://www.abc.net.au/news/2017-07-11/unarmed-men,-children-among­casualties-of-elite-forces/8424944

•    https://www.abc.net.au/news/2017-07-11/the-spy-and-the-sas-solider-with-a­ loaded-glock/8496608

•    https://www.abc.net.au/news/2017-07-11/afghan-files-australias-secretive­ rules-of-engagement/8496672

•    https://www.abc.net.au/news/2017-07-11/afghan-files-shed-light-on­ notorious-severed-hands-case/8496654

•    https://www.abc.net.au/news/2017-07-11/relations-between-australias­ specia1-forces-units-unhealthy/8496616

Third condition:

And 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:

Between 14 April 2016 and 1 October 2016, David William McBride gave Daniel Michael Oakes military information, contrary to section 73A(l) of the Defence Act 1903 (Cth).

Between 14 April 2016 and 1 October 2016, Daniel Michael Oakes unlawfully obtained military information, contrary to section 73A(2) of the Defence Act 1903 (Cth) .

Between 1 March 2013 and 20 December 2014, David William McBride stole property belonging to the Commonwealth, contrary to section 131.1(1) of the Criminal Code Act 1995 (Cth).

About Between 14 April 2016 and 1 October 2016, Daniel Michael Oakes dishonestly received stolen property from David William McBride, knowing or believing that the property was stolen, contrary to section 132.1 of the Criminal Code Act 1995 (Cth).

About 1 May 2016, David William McBride unlawfully disclosed a fact or document which came into his knowledge by virtue of him being a Commonwealth officer, contrary to section 70(1) of the Crimes Act 1914 (Cth).

30    Third, it is clear from the third condition that the offences identified are reciprocal, they relate to the giving and receiving of information. The offences are not directed to the publication of the information, although the publication of the Afghan Files Stories may be capable of being evidence in proof of the offences. It follows, that the limited material before the Court, which includes what was published as the Afghan Files Stories, is not the source material or information the subject of the offences in the warrant. As noted above, from the publications, the Afghan files themselves are described as being comprised of hundreds of pages of secret defence documents. The third condition is directed to material that will afford evidence as to the commission of the identified offences. That concept encompasses material much broader than the documents provided.

31    Fourth, Mr McBride has identified himself in the media as a person who leaked documents to the ABC, the Sydney Morning Herald and Chris Masters. His identity is therefore no longer confidential. However, in so far as the applicant relied on the statements of Mr McBride (in particular in relation to the unreasonableness grounds), the rules of evidence ordinarily would not permit media reporting of an asserted fact to constitute admissible evidence of that fact, “let alone be a satisfactory means of determining the metes or bounds of any such admission or its capacity to prove any element of a criminal charge”: ABC v Kane at [9]. That the applicant states it now understands that the alleged production of documents by Mr McBride to journalists will not be a matter contested at his trial is not relevant to the question of the validity of the warrant. In any event, material as to which there are reasonable grounds for suspecting will afford evidence of the commission of the offences is plainly not confined to documents that were provided by him. It is not difficult to imagine the potential breadth of the material which might potentially fall within that category and which might address other aspects of the charges already laid. Moreover, the identified offences in the third condition are not confined to Mr McBride.

32    Fifth, prior to the hearing the applicant abandoned its challenge to the validity of s 73A(2) of the Defence Act (which was claim 1A and detailed in paragraph [22A] OA), which asserted that the provision was invalid because it infringed the implied freedom of political communication, at least in so far as it purported to apply to the conduct of Mr Oakes in relation to the information provided to him and publication of the Afghan Files Stories. The remaining arguments therefore must be considered in the context where the applicant is not contending that s 73A is invalid and, in particular, not contending that the implied freedom of political communication renders it invalid (or requires the provision to be read down), as previously alleged. This application proceeds on the basis that the provisions for each of the offences identified in the third condition are valid.

33    Finally, apart from a submission based on the interpretation of s 73A of the Defence Act, the applicant has not suggested that there was insufficient material before Registrar Kane to enable him to be satisfied of the condition in s 3E(1) that there were reasonable grounds for suspecting that there is, or will be within the next 72 hours, evidential material on the premises in relation to each of the identified offences. The offence provisions are valid, they do not need to be read down to save their validity. It follows that the alleged conduct, if there is an evidential basis to support it, is capable of satisfying those offence provisions.

Evidence

Agreed Statement

34    Helpfully, the matter largely proceeded by way of an Agreed Statement, which was supported by underlying material. I hasten to add that while the parties agreed the existence of those facts, their relevance, and if relevant their significance, was not agreed. As to relevance, just by way of example, the statements made by Acting Commissioner of the AFP on 6 June 2019 at a Press Conference addressing the warrant and its execution by the AFP, and the Ministerial Direction issued on 8 August 2019 (outlining the Government’s expectations for the AFP in relation to investigative action involving journalists/new media organisations in the context of an unauthorised disclosure of material) are not relevant to any of the issues to be decided. Contrary to the applicant’s submission that, for example, the Ministerial Direction illustrated “declaratory matters” that were “self-evident as at the date of execution of the warrant and were, or ought to have been, self-evident to those who made the decision to seek and issue them” they are statements made after the warrant was sought and issued. They have no relevance to the question of the validity of those decisions at that point in time. Similarly, for the reasons outlined above at [31], the purported admissions of Mr McBride have no relevance to that issue.

35    It is unnecessary to recite all the details of the Agreed Statement, suffice to say the topics covered the ADF, the ABC, the publications referred to as the Afghan Files Stories, the McBride Proceedings, the AFP Investigation, the warrant, and the protection of sensitive defence information.

36    Given the extent of the applicant’s reliance on it, I note in particular, the details in the Agreed Statement concerning the ABC, its Code of Practice and various other ABC policy documents, which set out principles and standards for the ABC and its employees, and the consequences of failing to comply. The Agreed Statement details, amongst other things, that:

Journalists rely on information provided to them by sources who have provided that information on [the] condition that their identity will be kept confidential.

…

In some circumstances, if the identity of a source of significant information were to be revealed, the source may be at risk of various types of harm to reputation, livelihood, property or person. Those close to the source, such as family members, may also be at risk. If sources who reveal information that serves a significant public interest face ramifications of those or other kinds, they and other actual or potential sources may be deterred from providing information in future.

37    Among other things, an ABC Guidance Note entitled “Attribution/Anonymity of Sources” states that a basic rule of journalism is to protect the identity of sources when committed to do so; that any failure to uphold the rule can result in serious potential costs in loss of trust and reduced information flow, both from the source affected and from other potential sources who may be deterred; and sets out ways in which journalists employed by the ABC must strive to maintain the protection of confidential sources. Reference is also made to the Media, Entertainment and Arts Alliance (MEAA) and a Journalist Code of Ethics, the MEAA Code of Ethics (MEAA Code), it has adopted. Among other things, the current version of the MEAA Code: requires journalists who are members of the MEAA to apply the following standard: “Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances”; and contains a “Guidance Clause”, which states: “Basic values often need interpretation and sometimes come into conflict. Ethical journalism requires conscientious decision-making in context. Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden”.

38    As noted above, the Afghan files were comprised of a number of ADF documents including documents security classified as SECRET, and with the caveat AUSTEO. The process by which such classifications are determined, the circumstances in which they are so marked, their meaning and the consequences of the compromise of the information are detailed in the Agreed Statement. This includes the following:

Unauthorised disclosure of defence information contrary to the requirements of the information security framework established by the Commonwealth under the PSPF and Defence under the DSM (defence information disclosures) may undermine the ADF’s ability to respond to threats and conduct successful missions. Disclosing defence information such as operational plans, techniques, tactics and procedures may diminish the effectiveness of those resources. Disclosure of such information may also expose Defence personnel to an elevated risk of harm.

Defence information disclosures may also harm Australia’s relationships with allies and coalition members. A demonstrated inability to maintain the secrecy of certain types of defence information may reduce the willingness of those countries to share information with Australia.

A reduction in information-sharing by Australia’s military partners may hinder the ADF’s ability to plan for and respond to threats to Australia’s national security, to defend Australia from armed attacks, and/or to participate effectively in joint operations.

In determining whether a defence information disclosure may have the effects described at [111] to [113] above, it is relevant to consider the nature of the information and the circumstances of disclosure.

39    Similarly, the Agreed Statement specifically addressed the Rules of Engagement (ROEs) which were described as directives issued to the ADF by the Chief of the ADF, in consultation with the Australian Government which regulate the use of force and activities connected with the use of force by the ADF. The unauthorised disclosure of ROEs for operations in which Australia has a current involvement or for concluded operations which current ROEs substantially replicate, contrary to the requirements of the information security framework established by the Commonwealth under the Protective Security Policy Framework and the ADF under the Defence Security Manual v 5, may increase the likelihood that the ADF’s adversaries will ascertain the precise terms of current ROEs. The Agreed Statement noted that if information about how ADF forces will operate during a mission is available to an adversary, that adversary may be more effective in combat with the ADF, as it may be able to adjust its strategy and operations in light of that information. For these reasons, the Agreed Statement outlined that the disclosure of ROEs may: diminish the effectiveness of ADF tactics, techniques and operations; impede the success of ADF missions; may undermine the ADF’s defensive capacity abroad and in Australian territory; and/or physically endanger ADF members, increasing their risk of injury or death. The Agreed Statement notes that in determining whether a disclosure may have those effects, it is relevant to consider the nature of the information and the circumstances of disclosure.

Additional evidence

40    In addition to the Agreed Statement, there were three witnesses relied on by the parties. At the hearing the applicant relied on two witnesses, Mr Rippon, solicitor for the applicant and Dr Matthew Ricketson, Professor of Communication at Deakin University, and the respondents relied on Lieutenant General Gregory Charles Bilton AM CSC, Chief of Joint Operations, ADF.

Applicant’s evidence

41    Mr Rippon affirmed an affidavit on 24 September 2019 which primarily dealt with issues of legal professional privilege and source protection claims. At the hearing, Mr Rippon’s affidavit was read, subject to three limitations agreed by the parties. The legal profession privilege issues referred to in the affidavit were resolved prior to the hearing, and the source protection claims, which are the subject of the last ground in this application, have been reduced to 4 documents. That ground will be addressed later in the judgment. Mr Rippon was cross-examined on the execution of the warrant and gave evidence which included that referred to in paragraphs [10], [17] and [18] above.

42    During the course of Mr Rippon’s cross-examination some documents were tendered which included two emails received by him from Agent Brumby (referred to above in paragraph [17]) and two tweets sent by Mr John Lyons, an ABC employee who was present that day, in relation to the execution of the warrant on June 2019.

43    Professor Ricketson provided an expert report, dated 24 September 2019, which primarily dealt with journalists’ obligations in protecting confidential sources (particularly in the context of the MEAA Code and the purported impacts of a failure to do so). In particular, the report included opinions about the importance of maintaining source anonymity in the case of informants who work within institutions which deem material to be secret, including military and intelligence services.

44    As will be explained in greater detail below, the respondents objected to the evidence of Professor Ricketson on the basis that it was irrelevant to this application. This is on the basis that the applicant had “abandoned the constitutional challenge”. While the respondents accepted that the topics of evidence in his report are matters to which admissible evidence might go, they challenged that Professor Ricketson’s report addressed those issues in any admissible manner.

45    Given, as the respondents contended, even if I accepted their threshold argument in relation to ground 1 it would nonetheless be necessary to address the alternate argument against the possibility that was not the correct position, which may require the determination of factual questions, I provisionally admitted Professor Ricketson’s evidence. In essence, the objections were that: (1) the report does not set out relevant expertise to express the opinion he does (at paragraphs [21], [22] of his report); (2) the recitation of various aspects of the MEAA Code is inaccurate and the document speaks for itself; (3) that the opinions expressed purport to relate to military and intelligence services without any basis identified for his expertise in such matters or basis of the opinion expressed; and (4) that the report is speculative, and based on unspecified hearsay assertions of conversations with unidentified journalists.

46    The applicant called Professor Ricketson and tendered his report. The aspects of the report principally relied on appear to be as follows (with any errors in the original):

11. The requirement of journalists to protect the identity of confidential sources of information is an important element of the MEAA Code of Ethics, which is available online at https://www.meaa.or g/meaa-medi a/code-of-ethics/. The code applies to journalism in all the news media, including print, broadcast or online. The Walkley awards are the most prestigious prizes in Australian journalism; those entering them are required to affirm that they have abided by the MEAA Code of Ethics in their work.

12. Clause three of the MEAA Code requires that journalists:

Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.

13. The current drafting of this clause is more nuanced than was the original code, which was drafted in 1944. At that stage the Code simply required that a journalist respect all confidences received by him in the course of his calling. The modern clause requires that journalists think carefully before agreeing to keep a source's identify confidential. This change came about because of a recognition that, on the face of it, failing to disclose the identity of a source is contrary to the free flow of information that is central to the role of journalism.

14. The granting of anonymity to sources can be abused as it enables sources to make allegations about people to which that they do not need to put their name. That is why the MEAA, following a review of the code of ethics in the 1990s, considered it necessary to account for and mitigate against the inherent tension between openness and secrecy in the use of confidential sources, as well as addressing the possibility of sources acting in bad faith.

15. The current drafting of the code requires a journalist to consider whether the free flow of information can be achieved without recourse to a source who is unwilling to speak on the record for publication or broadcast. It further requires a journalist consider the source's motives for disclosure before promising to keep their identity confidential.

16. This means that by the time anonymity has been promised the journalist has already made a judgement call that they cannot obtain disclosure without keeping the source's identity secret. In my experience journalists do consider this hurdle imposed by the modern form of the Code. By definition, then, it is reasonable to assume that those disclosures would not have been made without the promise of anonymity.

17. Once the journalist makes the agreement, though, the Code requires them to keep it. This requirement applies even if that means refusing to reveal a source's identity in court proceedings up to and including non-compliance with an order to reveal a source's identity. In my experience, this is a commitment that is taken very seriously and is central to the personal ethical code of the many journalists whose work I have studied and with whom I have discussed the issue over the course of my career.

18. The journalist's agreement to keep a source's identity confidential, even if that means going to gaol for contempt of court, is a powerful tool for journalists aiming to win the trust of source who themselves could be at risk of legal action or losing their livelihood (or in extreme cases their lives) if their identity was known to the people and institutions about whom they disclose information.

19. In the case of informants who are the victims of crime or abuse who work up the courage to disclose information about their abusers, in my experience journalists reporting on these issues consider that it is particularly important that the trust informants show to a journalist is honoured. This is because the journalists consider that to do otherwise would compound the damage that has already been done to these informants' ability to place their trust in others.

20. In the case of informants who work within institutions, including military and intelligence services, and disclose information about failures, real or perceived, in their institutions, in my experience journalists reporting on these issues consider that it is similarly important that the trust informants show to a journalist is honoured. This is because not only of the courage that is required for informants to speak out about problems in their institution but of the consequences of speaking out, which may include being ostracised, demoted, forced to resign or charged with an offence.

21. It is my opinion, based on the many years I have been observing, studying and writing about the theory and practice of journalism, that if these types of informants became aware that a journalist's promise of confidentiality was unreliable, there would be significantly fewer disclosures by victims and other witnesses of crime and abuse.

22. It is my opinion too that the discovery, or the risk of discovery, of an informant's identity through the seizure of documents under a search warrant would have a chilling effect on the willingness of prospective informants to come forward because of the penalties applied to those found to have disclosed to a journalist information that has been deemed by an institution, including military and intelligence services, to be secret. These penalties are included in a number of pieces of legislation.

23. There is an inherent and legitimate tension between freedom of the press and national security. Freedom of the press is a principle exercised by the news media on behalf of the general public, and national security is a principle exercised by governments and law enforcement agencies on behalf of the general public. The tension arises from weighing the merits of these two principles, both of which are valued in the body politic. One does not always outweigh the other but it is difficult to discern which one does, and in what circumstances. There is a need to weigh the public interest importance of the journalism against the importance, or the imminence, of the threat to national security.

24. It is my opinion, based on study and experience, that there have been instances of the news media producing journalism that is not in the public interest, but is instead irresponsible or sensationalist or unethical. It is equally possible to find instances of governments using national security to cloak actions and behaviours that are incompetent or corrupt or illegal. It is a difficult task for parliaments to frame laws that ensure those in positions of power, whether in the news media or in government or law enforcement agencies, are held to account for the actions they take on behalf of the public.

25. It is more difficult when there has been a proliferation in the past two decades of national security laws that preclude almost any public scrutiny and which impose significant penalties on those working within institutions who feel impelled to disclose failings, real or perceived, of the institutions. It is important that there is balance between the strength of laws that protect national security and those that protect freedom of the press and the whistleblowers who make disclosures to the press.

47    Following the evidence having been provisionally admitted, Professor Ricketson was cross-examined.

48    While Professor Ricketson stated that all journalists were eligible to be a member of the MEAA, although they might choose not to be, he accepted newspaper editors, and newsroom chiefs are not eligible. While he was unaware of the percentage of working journalists who are members, he gave evidence that he understood that the MEAA still has substantial reach in most major news organisations in this country, and among freelance journalists of whom there is a growing number, ultimately accepting the proposition that those who choose to join the MEAA, are to a degree, a self-selecting group.

49    Professor Ricketson accepted that the standards that the MEAA Code sets out are subject to a guidance clause, and that the standards can be overridden in particular circumstances. The judgment is that of an individual journalist.

50    In relation to the enforcement of the MEAA Code, Professor Ricketson gave evidence that since the new journalist code was adopted in 1999, only three MEAA members have been censured or rebuked under the MEAA Code, and no member has been expelled from the MEAA for almost 40 years. Professor Ricketson added that the MEAA is a member of the Australian Press Council, as are most major news organisations in this country, and to an extent it relies on the processes that the Australian Press Council engages to deal with complaints from members of the public and others about journalism that is produced.

51    Professor Ricketson accepted that, as far as he was aware, decisions in disciplinary matters of the MEAA or summaries of its decisions under the MEAA Code, are not published on the MEAA website. He accepted that the public knowledge of whether, or to what extent, the rules are being enforced is limited by that. Professor Ricketson was also asked if it is a fair criticism, made in the Finkelstein Report, that the complaints process remains largely ineffective, to which he responded that it was a contestable criticism and added there has been “substantial improvement” since that report which was six or seven years old.

52    In his report, Professor Ricketson said that granting of anonymity to sources can be abused, as it enables sources to make secret allegations. During cross-examination, he accepted that a problem with secret sources is that the source may have an axe to grind and so may leak material selectively; the source may have partial knowledge and be blind to the complexities of the matter on which they’re providing information; the source may actually be acting in bad faith; and secrecy can allow a source to discredit people with little or no accountability. He accepted that journalists routinely grant anonymity to sources far wider than whistleblowers. He accepted that many secret source leaks are, in substance, disguised government media leaks dropped in the lap of selected journalists, and in some of those cases, there might be a greater public interest in knowing who leaked the report than the substance of the report. He accepted that occasions when a journalist has leaked information ranges from the useful through to outright lies.

53    He accepted that under the MEAA Code the default or standard position is that sources should be attributed but every day “on all manner of stories”, journalists grant sources anonymity. When asked whether journalists often have to grant anonymity before they know what the information is that is to be disclosed, he responded that he would not know for sure, and “not necessarily in my experience and observation”.

54    He accepted that journalists need to think carefully “before granting anonymity to any old source”. When asked whether it was “very common practice in [the] newsroom, doing just that. That is, granting anonymity to any old source is very common practice in newsrooms today?”, he responded “[w]ithin the context of the great range of the kinds of stories that journalists engage in, some of which are very serious and are matters of national public importance of the kind that are the subject of these – these – this matter, I should say, and others which are the proverbial cat up a tree story, which are of little moment and happen many, many times in many, many newsrooms every day”.

55    He accepted that sometimes, protecting a source at all costs may promote misleading of the public. He accepted that it was the view of some (and he identified Chris Masters as an example) that where a source has deliberately misled a journalist, it might be appropriate for the journalist not to maintain the confidence. He accepted that Mr Masters, from his observation and that of many others, was highly ethical in his practice of journalism and a highly successful investigative journalist. Professor Ricketson was asked about Mr Masters’ approach to sources and how it was said to be narrower than that of the MEAA Code referring to a book written by him in 2002.

56    He accepted that sometimes secret sources leak information to silence a whistleblower or critic. He accepted that sometimes journalists fabricate information and claim that the identity of the source can be known only to the journalist and must be kept anonymous, occurs but “pretty rarely”. The respondents drew Professor Ricketson’s attention to an ABC guidance note that addressed this issue, and Professor Ricketson accepted that assurances given in relation to anonymity were not seen by the ABC as an absolute obligation as “there’s a balancing of both interests and of needs”.

57    Professor Ricketson accepted that he had not published stories that had been given to him by secret sources in the military or the intelligence services; and the military and the intelligence services had not been an area of his journalistic endeavour. When asked about whether he had conducted any interviews with informants about the willingness of secret informants to come forward without a promise of anonymity, he responded that he had “more often interviewed journalists about their practice”. While he referred to his PhD thesis and that he conducted some “semi-structured interviews” with investigative journalists, he accepted that there is nothing in his thesis about interviews that he has conducted concerning the willingness of informants in the military and intelligence services to come forward without a promise of anonymity. Professor Ricketson also accepted that he has not conducted any surveys of investigative journalists about their dealings with secret sources.

58    Professor Ricketson was reluctant to accept the proposition that “if a journalist is being truthful with a source, no journalist can ever promise secrecy to a source” but he accepted a court could decide to compel disclosure of the source’s identity under s 126K of the Evidence Act 1995 (Cth) (Evidence Act) and that the Independent Commission Against Corruption (ICAC) could compel disclosure of the source’s identity. While noting that journalists have resisted directions by ICAC to reveal their sources, he accepted that sometimes journalists do reveal the source to ICAC although he could only think of one example in the last decade or so, and he was not aware of any disciplinary proceedings that had been bought against that person. He was also asked about the power to compel the disclosure of documents held by the Australian Competition and Consumer Commission, and the Australian Taxation Office, but said that it was not “an area of expertise” of his but said that “once [journalists] have given a source a promise to keep the source’s identity confidential, they take that seriously up to and including resisting compulsion by various bodies for them to reveal their sources”.

59    Professor Ricketson was cross-examined about his involvement with the Australian Press Council and the MEAA. He gave evidence that he was appointed to the Australian Press Council in early 2016 and accepted that there was some criticism of his appointment with review of the role that he had had with the Finkelstein Inquiry, and that as a precondition to his appointment he agreed that he would represent the MEAA’s position on all policy questions at the Australian Press Council, and that to the best of his knowledge and recollection he had done so. Professor Ricketson accepted that the MEAA has a policy position on the search warrant that was executed on the ABC, and a statement made on behalf of the Australian Press Council was tendered and brought to his attention. A tweet, written by Professor Ricketson about the execution of the warrant on 5 June 2019 was also tendered which also referred to a Journalism Education and Research Association of Australia (JERAA) statement on the same issue: “JERAA’s statement on AFP raids jeerra.org.au. The results of govts appeasing public anxiety about national security root causes & throw civil liberties under an (armoured) bus”. The respondents put to Professor Ricketson that these statements called into question his independence in these proceedings and suggested that he was expressing firm views, both through the Australian Press Council and in his tweeting of the JERAA statement. Professor Ricketson took issue with this proposition, stating that he “wear[s] a number of hats” and that, for example, the tweet represented a combination of the statement by JERAA and his own opinion.

60    During the course of Professor Ricketson’s evidence some documents were tendered which included, two publications authored by him, a tweet sent by him, the MEAA, Australian Press Council, and JERAA media statements in relation to the execution of the warrants executed in June 2019.

61    One document put to Professor Ricketson in cross-examination was a printout ostensibly from the ABC news website which was an article dated December 2017 entitled “ICAC probe forces journalist to reveal source for story”. Professor Ricketson was asked (in the context of having been previously asked about occasions when sources have been revealed) whether he was aware of this incident, to which he replied he was not aware of it. The respondents sought to tender the news item. On the basis that Professor Ricketson was not aware of the incident and therefore, it was being relied on for a hearsay purpose, the applicant objected to the tender of the ABC news story. The article was being tendered to rely on the truth of the facts asserted therein. It was being relied on for a hearsay purpose and was thus inadmissible. It is not admitted in these proceedings.

The respondents’ objections

62    As noted above, the respondents objected to the entire report contending it was irrelevant on the basis that the applicant had abandoned its challenge to the validity of s 73A of the Defence Act. As the “constitutional challenge [had] now been dropped,” it was submitted that the purported relevance of the report was unclear.

63    The applicant contended that it was relevant to the argument in paragraph [18A] of the OA which alleges that the decision to issue the warrant was ultra vires having regard to a number of factors including “the importance of the protection of sources”, “the public interest in investigative journalism” and “the implied Constitutional freedom for the reasonable discussion of government and political matters”. The applicant contended that this ground was “further elucidated” in the submissions of both parties, and highlighted a number of passages in both submissions to emphasise that “the argument is alive”, and so too, the relevance of the report.

64    In addition to the relevance argument, the respondents challenged specific aspects of the report, most notably, that the applicant had not established that Professor Ricketson was qualified to give the opinion which is at the crux of his report at paragraphs [21] and [22] (as extracted above at paragraph [46]), that is, the purported “chilling effect” that the risk of disclosing sources “would have” on prospective informants who work within institutions, including military and intelligence services.

65    The applicant, inter alia, submitted that the respondents were cavilling with Professor Ricketson’s evidence when the relevance of it related to what it submitted was a “wholly uncontroversial proposition” (referring to John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346 (Cojuangco) at [12] per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ), that information will be more readily supplied to journalists, of the kind which is in issue in this case, where confidentiality is protected, and that this “free flow of information” is a “vital ingredient in the investigative journalism which is such an important feature of our society”. I refer to the applicant’s submission in relation to Cojuangco in more detail below. Suffice to say, that proposition from Cojuangco may be accepted. If that was the relevance of Professor Ricketson’s evidence, and it purported to say no more than that proposition, one might think his evidence would have been unnecessary.

66    It is therefore more appropriate to consider the issue of relevance of his evidence and, if relevant, the arguments as to his qualification to express the opinions he did, in considering the law as to source protection (see [182]-[245] below), which is relevant to the applicant’s argument in respect to grounds 1, 6, 7 and 9.

Respondents’ evidence

67    The respondents read the affidavit of Lieutenant General Bilton AM CSC, sworn 27 September 2019, which addressed the ROEs and, amongst other things, why they are secretive, and are classified (with one exception) at no less than SECRET. This included, (without disclosing the content of any particular ROE), the purpose, use and formulation of the rules and the consequences of disclosure of current and past ROEs. Lieutenant General Bilton was not required for cross-examination.

68    Lieutenant General Bilton addressed the extent to which ROEs are evolutionary although the precise extent of consistency or similarity is a matter of military sensitivity therefore, one appropriately not dealt with. He detailed the purpose of ROEs, as being: (1) to operate to ensure force protection; and (2) to ensure the actions of the ADF remain lawful and consistent with the mandate of the Australian Government, thereby retaining legitimacy. He explained the consequences if all of a current set of rules were disclosed and the way in which adversaries could identify vulnerabilities and deploy their own tactics, techniques and procedures for testing and operational advantage. He explained why these matters remain of ongoing sensitivity and that allowing an enemy to obtain an operational advantage in this way may have particular consequences which he identifies. He addressed whether the release of part of current rules would have the same effect depends on which part, noting that the release of operational components of ROEs would likely have adverse effects, particularly if those parts revealed limitations on the ADF’s use of force or its tactics, techniques and procedures. He explained how innocuous fragments might be put together through mosaic analysis. He described having experience with adversaries testing their knowledge of ADF tactics in this way, and explained that in his experience, adversaries do proactively seek to aggregate bits of information in order to build an understanding of such tactics. He explained that it is difficult to assess the likelihood of the consequences he had identified, but said the likelihood was real. He said the consequences are very significant for the ADF’s ability to carry out its function, and detailed that those consequences may include the ADF being undermined in its ability to carry out an operation as well as soldiers, sailors and airmen/women being injured and killed. He explained why the possible consequences are the same for the disclosure of non-current ROEs, and noted that if it were the case that ROEs for contingencies were acquired by an adversary before the ADF enacted the ROEs, it would likely result in even graver consequences than those he had previously detailed.

Relevant legislation

69    The warrant was issued pursuant to s 3E of the Crimes Act which relevantly states:

3E 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 or affirmation, 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.

…

(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.

70    The offence provision for the first two offences in the third condition of the warrant, s 73A of Defence Act is contained in “Part VII - Offences” of that Act and is in the following terms:

73A Unlawfully giving or obtaining information as to defences

(1) A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 commits an offence if:

(a) the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and

(b) the communication is not in the course of the first-mentioned person’s official duty.

(2) A person commits an offence if:

(a) the person obtains any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or air force aerodrome or establishment, or to any of the defences of the Commonwealth or any other naval, military or air force information; and

(b) that conduct is unlawful.

71    The maximum penalty for the offences under s 73A of the Defence Act is life imprisonment, an unlimited fine or both: Defence Act, s 73F.

72    Most, although not all of the applicant’s challenges to the warrant, relate only to the first two offences in the third condition of the warrant.

73    Suffice to say that the third and fourth offences, conduct contrary to s 131.1(1) and s 132.1 of the Criminal Code, relate to the offences of theft and receiving respectively. Section 131.1(1) prescribes an offence consisting of the dishonest appropriation of property belonging to a Commonwealth entity with the intention of permanently depriving the owner of that property. Section 132.1 creates the offence which a person commits by dishonestly receiving stolen property knowing or believing the property to be stolen. By force of the definition of “stolen property” in s 132.1(3), the provision only applies where the relevant property is (or was when previously received) property belonging to a Commonwealth entity, or proceeds of sale or property exchanged for such property. The maximum penalty for each offence is imprisonment for 10 years: ss 131.1(1), 132.1(1).

74    The final offence in the third condition of the warrant, s 70(1) of the Crimes Act, provides that a Commonwealth officer commits an offence if he or she publishes or communicates, except to some person to whom he or she is authorised to publish or communicate it, any fact or document coming into his or her knowledge or possession by virtue of being a Commonwealth officer and which it is his or her duty not to disclose. The offence is punishable by imprisonment for 2 years: s 70(2). I note that this provision was repealed in 2018 by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) however, that repeal only has effect for conduct occurring on or after the commencement of that amending legislation: National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), Sch 2, Pt 1, item 7.

Legal principles relevant to search warrants

75    The principles relevant to construing statutes relating to the issue and execution of search warrants are well established, and summarised by the Full Court (Logan, Rangiah and Bromwich JJ) in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 (Caratti) at [21]-[49].

76    As the applicants challenge the issue of the warrant they bear the onus to make good that challenge: Williams v Keelty at [235]-[236].

77    Construction of statutes that authorise search warrants must begin with “the ordinary meaning of the words considered according to their context and the legislative purpose”: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 (Hart) at [64]. As the Full Court (Hill, Hely and Conti JJ) in Hart observed at [68], “effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences”, such that a construction giving effect to “operational realities” is to be preferred to “fine legal judgments in the issue and/or execution” of search warrants.

78    I note the observations of the Full Court in Caratti at [34] that:

In all challenges to the validity of the issue of a search warrant, the usual restraints on judicial review intervention will apply. This includes, most importantly, the principle that the decision manifested in the search warrant issued must be read beneficially, and not with an eye keenly attuned to the perception of error: Minister for Immigration And Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. However, application of that principle must accommodate the purposes of a search warrant in informing both those executing it and occupiers as to the scope of the search that is authorised. The scope of a search warrant may be far from precise given that it is issued for an investigative purpose, based upon the low threshold of “suspicion” being met. All that really means is that an error or misdescription must be shown to be material to the purposes of a search warrant. However when it comes to mismatches between the information and the search warrant, that feature must not be approached with undue technicality or any requirement for excessive precision. Practical considerations must always be kept steadily in mind: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 (Baker v Campbell) at 83.

79    The Full Court in Caratti at [37]-[39] also summarised key principles from Beneficial Finance Corporation v Commissioner of the Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 (Beneficial Finance) which focussed on the sufficiency on the face of the warrant in so far as it relates to the description of the suspected offence. First, the statement of the offence in a search warrant need not be made with the precision of an indictment. The purpose of the statement of the offence is not to define the issues for trial, rather it is to set boundaries to the area of search: Beneficial Finance at 533; State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (Corbett) at [99]. Second, the line as to what may, or may not be seized, cannot be precisely drawn as a search warrant is not concerned with what is known, but with what there is reasonable grounds for suspecting: Beneficial Finance at 534. Third, the particularity in an offence description is directed to ensuring that the occupier knows the object of the search and can therefore make an assessment of the material likely to be relevant: Beneficial Finance at 539. Fourth, at the stage a search warrant is granted, it may not be known what particular offences may have been committed and therefore it is sufficient that the warrant specifies the suspected offences in a way so as to enable the executing officer and those assisting to decide if the things seized come within the terms of the warrant: Beneficial Finance at 539. Fifth, the issue of the sufficiency of an offence description should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. It should be answered in accordance with the principle that a search warrant should disclose the nature of the offence so as to indicate the area of search, with the precision required varying from case to case: Beneficial Finance at 543. It should not be answered by the application of a verbal formula: Beneficial Finance at 543; Corbett at [103].

80    A warrant may be invalid if it fails to set “real and meaningful perimeters” as to the “area of search” or where the statement of an offence fails to impose any “practical constraint upon those executing a warrant”: Zhang v Commissioner, Australian Federal Police [2009] FCA 1170; (2009) 260 ALR 580 at [13] per Flick J citing Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145 at 152 per Hill, Cooper and Whitlam JJ. This does not mean that the scope must be precisely or exactly drawn, given the low threshold of “suspicion” being met and the investigative purposes a warrant serves: Caratti at [34], [37] and [114]. Rather, invalidity will arise if there is a “failure to focus the statutory suspicion and belief upon any particular crime”: Caratti at [37] (citing Beneficial Finance at 533 with approval).

81    As the Full Court in Caratti concluded at [40]:

What emerges from Beneficial Finance and the many cases since that have followed, applied or approved it, including Corbett in particular, is a test of sufficiency to indicate the area of search, not precision or particular accuracy. There is no legal principle creating an abstract test by which the nature and degree of precision in the statement of a suspected offence in a search warrant will be inadequate... Whether an offence description is adequate or sufficient – or not – is a matter for assessment in all the circumstances of the case at hand. It is largely a factual and practical evaluation, which may be affected to a significant degree by context and nuance. It is substantially a trial determination, rather than an appeal determination, as the subjective nature of the determination will seldom lend itself to being a conclusion that was not open to a primary judge, even if members of an appeal court might have reached a different conclusion. The above principles make appellate intervention, which is already difficult in many cases, often very hard to achieve in search warrant cases. That is all the more so when there has been oral evidence, cross-examination, credit assessments and the drawing of inferences. Those difficulties are compounded by the discretionary nature of the relief that may be granted or refused.

82    It is against this background that I turn to consider the issues to be determined in this matter.

Grounds of the application

83    In the Agreed Statement, the parties agree that the following issues fall for determination by the Court (leaving aside the issue which was abandoned prior to the hearing):

(1)    Is the first respondent’s decision to issue the warrant invalid on any or all of the following grounds:

(a)    the decision was not authorised by s 3E of the Crimes Act on its proper construction (ground 1, OA [18A]);

(b)    the three conditions of the warrant did not provide a real and meaningful perimeter to the evidential matters the warrant purportedly authorised to be searched for and seized (ground 2, OA [19]);

(c)    the suspected offences specified in the third condition of the warrant were expressed in a conclusionary, vague and uncertain manner (ground 3, OA [20]);

(d)    the warrant purported to authorise the search and seizure of material that could not afford evidence as to the commission of the offences in ss 73A(1) and (2) of the Defence Act that were specified in the third condition of the warrant (ground 4, OA [21], [22]); and/or

(e)    the decision was legally unreasonable? (ground 6, OA [23])

(2)    Was the decision of the second and third respondents to seek the warrant legally unreasonable? (ground 7, OA [24])

84    In some respects there is overlap between some of the grounds, with certain factual premises underpinning more than one of the arguments.

85    Details of the arguments will be dealt with below when considering the grounds of the application. Suffice to say at this stage, ground 1 of the applicant’s challenge contends that the decision to issue the warrant was ultra vires having regard to the implied freedom of political communication. Grounds 2, 3 and 4 contend that the warrant was invalid on its face. Grounds 6 and 7 contend that the decisions to apply for and issue the warrant were legally unreasonable.

86    While the applicant addressed the submissions in the order the grounds appear, it is plain that part of its submission in relation to ground 1 is based on a premise that the terms of the warrant are “vague, conclusionary and uncertain”. This characterisation of the warrant is also relied on by the applicant in grounds 2 and 3 in which it contends that the warrant was invalid because it failed to provide a real and meaningful perimeter to the evidential matters purportedly authorised to be searched for, and the suspected offences in the third condition were expressed in a “conclusionary, vague and uncertain manner”, (and in its grounds 6 and 7). The applicant’s argument in respect to ground 1 therefore depends, in part, on its characterisation of the warrant in the grounds which challenge the warrant on its face (grounds 2 to 4). While the applicant addressed the extent to which my findings in respect to the “face of the warrant” grounds can be used for the purposes of the inquiry in ground 1 (these submissions are detailed further below), it nonetheless accepted that those conclusions would be relevant to resolving ground 1.

87    It is therefore appropriate to first address grounds 2 to 4 which consider the complaints about the terms of the warrant, because it must be against those terms and the conclusions in respect to them, that any argument as to the warrant, as issued in those terms, being ultra vires (and the decision to apply for and issue the warrant in those terms being legally unreasonable), must be judged. Further, grounds 2 to 4 also necessarily involve a consideration of s 3E (its purpose and scope), and the principles relevant to the interpretation of a search warrant issued under such a provision. These considerations are also relevant to resolving ground 1.

88    I also note at this stage that the applicant made submissions said to be relevant context in which all the grounds in this application are to be addressed which included, amongst other things, the role of the ABC, the importance of source protection and the consequences if confidential sources are identified, and the detail of the Afghan Files Stories. It was submitted that these matters raised by the applicant related generally to all four of their heads of challenge to the issue of the warrant, although in many instances, there was no submission as to why or how this could be so, given the issues for determination. Ultimately, the submissions were principally relied on in support of ground 1, and are addressed below when resolving that ground.

Grounds 2 and 3, OA [19]-[20]: the warrant is invalid as it does not comply with ss 3E(1), 3E(5)(a) and (c) of the Crimes Act

Submissions

89    The applicant submitted that the search warrant is invalid because it failed to provide a real and meaningful perimeter to the evidential matters it purportedly authorised to be searched for and seized.

90    The applicant submitted that the first condition and second condition did not meaningfully limit the scope of the search authorised by the warrant. It was submitted that the first condition set out a list that included almost every type of document that might be found at the applicant’s premises. Further, the second condition also set out a wide-ranging list of topics that included, for example, “Australian Broadcasting Corporation (ABC)”. The applicant submitted that the words “relating to” in the second condition are words of the “widest ambit”, and as the warrant was executed at the ABC’s premises, everything at those premises “relate[d] to” the ABC.

91    The applicant submitted that the third condition was the only means by which the scope of the search authorised by the warrant was confined. It submitted that the suspected offences in the third condition of the warrant were expressed in a conclusionary, vague and uncertain manner. It submitted that the condition did not describe the suspected offences in a way that would enable the executing officer to decide if the things seized came within the terms of the warrant. This submission focussed on the term “military information” which appears in the first two offences specified in the third condition of the warrant, in relation to the offence contrary to s 73A of the Defence Act. The applicant focussed on the terms “information” and “military” separately and together. It submitted that the term “military information” introduced such a degree of ambiguity and uncertainty that it was not possible for the executing officer to decide if things seized came within the scope of the warrant. The applicant also submitted that the ordinary meaning of the terms “information” and “military” are capable of referring to a broad range of matters. On the applicant’s submission, the word “information” includes hearsay, matters of opinion, actual or likely intention or assumption, as well as untested assertions, matters of supposition, and matters that are false. The applicant also contended that the term “military” could refer to a country’s armed forces, or to a country’s army, or more broadly to any matter relating to soldiers, war, or defence. It submitted that the combination of those words in the expression “military information” provided no guidance about which of the many possible meanings of “military” and “information” are intended to apply. The term provides no guidance to the executing officer about whether the information must be recent or credible, whether it must originate from the military, whether it must relate to the military of a particular country, or whether even a tenuous or distant connection between the information and the military will suffice. It was submitted that its meaning was “entirely ambiguous”. To illustrate this point, the applicant submitted that it may include, for example, a documentary about Australia’s involvement in World War Two, a newspaper article about the Soviet-Afghan War, or a photograph of the Royal Military College, Duntroon.

92    The applicant contended that given the ambiguity and uncertainty introduced by the term “military information”, it was not possible for the reader of the warrant to “understand the object of the search and appreciate the boundaries of the authorisation to enter, search and seize”: Corbett at [106] per Callinan and Crennan JJ.

93    During oral submissions, the applicant sought to draw a comparison between the search warrant in Caratti and this case, submitting that: the first condition of the Caratti search warrant was in “very broad” terms and is broadly analogous to the first condition in this warrant; the second condition contained broad topics though not as broad as the warrant in this case, and pointed to the Full Court’s criticism of the breadth of that condition. Finally, the applicant submitted that the offences contained in the third condition of the Caratti warrant were identified by reference to a particular piece of subject matter and that there was no corresponding language in the third condition of the warrant in this case which identified the specific subject matter of each offence. It submitted that there is no identification of the character of the information, facts, documents or property that the offences pertain to: for example, the military information that was, in fact, sought in relation to the first two offences is not articulated; in the reference to “stolen property” in the third and fourth offences there is no reference to what that property is – it was submitted that on its face, paper clips or a post-it note could be caught; and as to the fifth offence, there is no identification of the “fact or document” referred to. The applicant submitted that the specificity of the third condition of the warrant in Caratti saved that warrant from being overly broad, however that the same cannot be said in this case, due to the lack of information contained in the third condition. It was submitted that, unlike in Caratti, the third condition of the warrant contained no identification of the character of the information, facts, documents or property the subject of the offences, and in doing so, “purported to authorise a very, very broad search”.

94    In response to questions during the hearing, the applicant submitted that while it accepted that an indictment for the offences contained in the third condition could be drafted in general terms, what was required in this case was that the warrant provide a meaningful perimeter to the matters that could be searched for. The subject matter was left unconfined, and it was not possible for a reader of the warrant, without drawing in extraneous information and assumed cooperation, to assess with any precision whether any particular thing fell within the scope.

95    The respondents submitted that the warrant clearly identified the scope of the search to be conducted, and the suspected crimes that were being investigated. The respondents accepted that the first and second conditions of the warrant are widely drawn, but rejected the submission that they, or the warrant as a whole, placed no meaningful limit on the scope of the authorised search. They submitted the warrant clearly indicates an investigation focused on offences concerning the provision (by Mr McBride) and receipt (by Mr Oakes) of information and documents that led to the ABC’s reporting of the Afghan Files Stories (the titles of which are revealed in the web addresses specified in the second condition). They submitted that this is apparent from the clear terms of the offences outlined in the third condition of the warrant, particularly when read in the context of the first and second conditions of the warrant.

96    The respondents submitted that the applicant’s approach of critiquing individual terms from the first and second condition of the warrant divorced from the context and further limit provided by the third condition was “unhelpful”.

97    The respondents submitted that the applicant’s assertion that the first and second condition provided no “meaningful limit” is overstated and they provided examples to illustrate that. They submitted that while the breadth of the first and second conditions may “[place] a heavier burden on the third condition”, the third condition in this case was sufficiently clear and precise to meet any such burden. The respondents drew attention to the fact that the third condition identified five suspected offences, each of which specified a time period, and the person suspected of committing the offence. They contended that each suspected offence must be read as a whole, and the specification of timeframes and names served to more narrowly confine the authorised search. They submitted that the descriptions collectively made it clear that the warrant was directed to the exchange of documents that occurred between Mr McBride and Mr Oakes. The respondents point to a statement made by senior counsel for the applicant at the 19 August 2019 case management hearing, where he indicated this understanding of the suspected offences when he stated that “[t]hey are the flipside of the same coin. There’s not an allegation that Oakes had information, documents or property other than as provided by McBride”.

98    The respondents noted that the applicant’s complaint in respect to this ground is confined to the use of the term “military information” in the two suspected offences contravening s 73A of the Defence Act, and that on the applicant’s submission, that phrase is said to introduce “such a degree of ambiguity and uncertainty” as to invalidate the entire warrant. On this basis, the respondents contended that there is no complaint about the other offences. I note that while that submission is correct in so far as the applicant’s written submissions, as explained below at paragraph [105], the applicant expanded its submission during oral argument.

99    The respondents noted that a warrant may be valid even if the suspected offences have been misdescribed, provided the error is not material, but submitted that there was no misdescription in this case. They submitted that the term “military information” is taken directly from the final words of ss 73A(1)(a) and (2)(a) of the Defence Act and necessarily bears the same meaning as it does in its statutory context. The respondents took issue with the applicant’s submission based on the full gamut of possible meanings of “information” and “military” which are divorced from the statute. The respondents submitted that there is no reason to suggest, or any evidence supporting the suggestion, that the respondents, Registrar Kane or the applicant understood “military information” to mean anything other than “military information within the meaning of s 73A”. The respondents submitted that it is entirely orthodox for a warrant, and indeed an indictment, to specify only the parts of a statutory offence that is alleged or suspected to have been contravened. It is not usual to recite the entire offence provision. They submitted that the sufficiency of an offence description in a search warrant does not turn on the application of a verbal formula or on “overzealous technicality”, referring to Beneficial Finance at 543.

100    The respondents submitted that while the specific “military information” alleged to have been obtained by Mr Oakes in the second suspected offence is not particularised, the nature of that information is clearly apparent when the third condition is read in the context of the warrant as a whole. In this context, the offences specified in the third condition sufficiently indicated the area of the search to be conducted.

101    In oral submissions, the respondents addressed the submission relating to the comparison between this warrant and that in Caratti. The respondents took the Court through the conditions in the Caratti warrant and submitted that in that case the Full Court was critical of the warrant due to the extraordinary breadth of the first and second conditions, however they still upheld the validity of the warrant. Going to the third condition of the warrant, the respondents went through the offences in some level of detail, and submitted that the evidence they could relate to would be extremely wide. Going through individual items in the first condition of the warrant in this case, the respondents made submissions as to why this was “a very constrained list” in contrast to that in the first condition of the warrant in Caratti, such that the items were not overly broad, further emphasizing that the warrant needs to be read as a whole.

102    In reply, the applicant submitted that the respondents seek to establish that the warrant indicated the focus of the investigation, by referring to specific aspects of the three conditions of the warrant, such as the web addresses in the second condition. It was submitted however, that the question is not whether it is possible for the executing officer to identify the focus of the investigation, rather it is whether the warrant sets bounds or a perimeter to the area of the search. This question, it was submitted, must be addressed by reference to the full scope of the search that the warrant, on its face, purported to authorise. It submitted that “it is not to the point that it may be possible to select particular combinations of items in the first, second and third conditions of the warrant which indicate the focus of the investigation”.

103    The applicant took issue with the respondents’ contention that the term “military information” bears the same meaning as in its statutory context. Referring to Dunesky v Elder at 557 and Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521 (Polley v Johnson) at [47] – [51] the applicant submitted that this proposition is contrary to authority, and that terms used in a warrant do not of necessity bear the same meaning as in their legislative context.

104    The applicant submitted that the respondents’ reliance on the applicant’s statement that the AFP “knew with particularity the documents the subject of the suspected offences”, was misplaced. It submitted that this ground must be determined on the face of the warrant and that what is relevant is that, even if the AFP had that knowledge (independently of the terms of the warrant), it was not reflected in the drafting of the warrant, which failed to set a perimeter to the area of the search.

Consideration

105    The applicant’s submission that the warrant does not set a real and meaningful perimeter to the search, and that the offences in the third condition are expressed in a conclusionary, vague and uncertain manner is primarily based on two premises: first, that the first two conditions provide no meaningful parameters leaving all the work to the third condition; and second, the use of the term “military information” in the first two offences in the third condition is ambiguous and uncertain. While the applicant’s opening and reply written submissions in relation to these grounds only complain of the first two offences, during oral argument the applicant introduced an additional submission, albeit briefly, that all the offence descriptions in the third condition of the warrant do not specify the subject matter of the offences: the “military information” (offences 1 and 2), the “stolen property” (offences 3 and 4) and the “fact or document” (offence 5) are not specified or identified. From that it was submitted that the warrant did not provide any meaningful parameters.

106    Neither submission is established, considered separately and in combination.

107    The applicant’s primary submission is based on a consideration of words and phrases in the conditions in isolation, devoid of their context. It is of no assistance to consider the breadth of individual words and phrases in the warrant in isolation, as material must satisfy all three conditions before it can be seized pursuant to the warrant.

108    As noted above, the warrant is in the three condition format, as approved in Dunesky v Elder at 557. The principles relevant to the resolution of this ground are referred to above at [75]-[81] and it is unnecessary to recite them again. Suffice to say the warrant must necessarily be considered as a whole, read fairly and not perversely: Caratti (No 2) at [131], [161].

109    When that is done with this warrant, while the first and second conditions are broad, it is incorrect to characterise them as providing no meaningful limitation on the search authorised by the warrant. Nonetheless, as is typical of a three condition warrant, the third condition does bear most of the work: Caratti at [67]. However, the third condition does provide sufficient information when read in the context of the warrant as a whole, to enable those executing the warrant to decide if the things seized come within the terms of the warrant, and sufficient particularity in the offence descriptions to ensure that the occupier knows the object of the search and can therefore make an assessment of the material likely to be relevant: Beneficial Finance at 539, and see Caratti (No 2) at [112].

110    A number of observations may be made about the warrant. A reading of the warrant as a whole reflects that it relates to an investigation which concerns offences involving Mr McBride providing to Mr Oakes information and documents, which the second condition reflects relates to material involved in the publications by the ABC referred to in these reasons as the Afghan Files Stories. The second condition lists publications by reference to the ABC news website by date and title, all of which would have been readily understood by the occupier of the premises, the ABC, to relate to the Afghan Files Stories. The second condition also refers inter alia, to the Afghan files, and other matters which are referred to in the titles of the listed publications, and to military related matters. For material to satisfy the definition of evidential material that may be seized under the warrant, there must be reasonable grounds for suspecting it will afford evidence as to the commission of one of the offences identified in the third condition, which inter alia specifies the relevant offence provisions (and in the first two offences that it is military information), the time frames for each offence (in one instance limited to one day) and the identity of the two persons involved in the suspected offences, with the information being provided by Mr McBride to Mr Oakes. The words in the offences take their meaning from the relevant offence provisions, and in respect to s 73A (as explained below when considering ground 4), that necessarily includes the nature of the information and that it is confidential information. Regardless, it would have been readily understood from the terms of the third condition that the information and documents alleged to have been provided by Mr McBride are said to have come to his knowledge because he was a Commonwealth officer and that he provided them to Mr Oakes in circumstances where Mr McBride was not entitled to do so.

111    It is plain from the terms of the warrant that the offences in the third condition are the flipside of each other; they relate to each side of the exchange of information and documents between Mr McBride and Mr Oakes. That is how the warrant would have been read. It would also have been readily apparent on a fair reading of the warrant, that while the third to fifth offences do not describe the facts, property or documents referred to therein, they relate to the same information (and the provision of any documents containing that information) referred to in the first two offences. The offences in the third condition, read with the second condition, would have been understood to be focused on information and documents related to the Afghan Files Stories.

112    There are clear parameters to the search provided in the warrant, not referred to by the applicant in its submission.

113    A consideration of just three of the examples relied on by the applicant, illustrates the flaw of the approach of considering words in isolation.

114    The first example relates to the phrase “which relate to” in the second condition. While it may be accepted, as the applicant contended, that the phrase is of wide import, that interpretation is not necessarily so. Rather, the phrase is ambulatory: The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601 at [31] per French CJ. As Davies J in Hatfield v Health Insurance Commission [1987] FCA 286; (1987) 15 FCR 487 at 491 observed:

Expressions such as ‘relating to’, ‘in relation to’, ‘in connection with’ and ‘in respect of’ are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute...The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.

115    That phrase, which appears in the second condition in this case, is limited by its context, which includes the third condition of the warrant.

116    That leads to the second example, which relates to the submission that the second condition contains the phrase “Australian Broadcasting Corporation” which, it was submitted, could cover everything at the ABC’s premises. The warrant plainly could not be interpreted to cover everything at the ABC. For the material to be evidential material within the terms of the warrant it must satisfy all three conditions which includes that there must be reasonable grounds for suspecting that it will afford evidence as to the commission of one of the offences specified in the third condition.

117    The final example relates to the applicant’s submission that the phrase “military information” contained in the first two offences in the third condition is so broad it could relate to a documentary about Australia’s involvement in World War Two. Again, such a submission ignores that the material must satisfy the third condition of the warrant. The applicant’s submission in this ground as to the meaning of that phrase and the individual words also bears no correlation to or consideration of the statutory context in which the words appear. While the applicant submitted that this ground is based on a broader submission than it advances in ground 4 (which is based on the interpretation of “military information”), that does not provide a basis to consider the phrase other than in the particular offence provision specified in the third condition (and which is to be read in the context of the warrant as a whole). There is no basis to contend that the phrase “military information” would be understood to mean anything other than the meaning it bears in the context of the s 73A offence provision.

118    The two authorities referred to by the applicant to suggest otherwise, Dunesky v Elder and Polley v Johnson relate to circumstances and issues which are factually distinguishable from this case. In Dunesky v Elder a definition of a word from another Act was sought to be relied on to give meaning to the relevant offence created by the Crimes Act. This is plainly different from the present case where “military information” in the warrant has the same meaning as in s 73A (the offence creating provision). In Polley v Johnson Simpson JA found (with Beazley P and McColl JA agreeing) at [43] that the act conferring the power to issue the warrant (in that case, the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)) did not require “the issuing officer to determine whether the information contained in the application as the basis for the application is capable of ‘sustaining’…a charge under s 326(2)”. Rather, the decision maker was obliged to ask herself whether there were reasonable grounds for issuing the warrant in light of the information provided to her, and the relevant authorising provisions. The Court found that “[i]t is not the role of the eligible issuing officer to whom application is made to explore any fine legal points concerning the construction of the legislative provision that creates the searchable offence…”: Polley v Johnson at [44] per Simpson JA with Beazley P and McColl JA agreeing. As expanded upon in ground 4, nothing in those cases, nor the circumstances of this case, provide a basis to suggest that the phrase “military information” would be understood to mean anything other than the meaning it bears in the context of the s 73A offence provision.

119    As to the additional submission raised by the applicant in oral submissions, the terms of the third condition do not result in the warrant, properly read as a whole, as having no meaningful parameters to the area of search.

120    As a starting point, the statement of the offences in a search warrant need not be made with the precision of an indictment: Beneficial Finance at 533, and such detail as proposed by the applicant may not be required in an indictment.

121    As illustrated in respect to the applicant’s primary argument, underpinning this submission is a consideration of the offences in the third condition in isolation. For example, the submission that without the identification of the subject matter the offence of stolen Commonwealth property listed in the third condition could, on its face, relate to paperclips or post-it notes, is of no assistance to its argument. That offence in the third condition is not to be read in isolation. As noted at [110] above, it is plain when the warrant is read as a whole that it relates to an investigation concerning offences involving Mr McBride providing to Mr Oakes information and documents relating to the Afghan Files Stories. The submission only serves to highlight that the applicant’s approach to the interpretation of the warrant is contrary to authority, and that the warrant must be read as a whole.

122    It is important to recall, in light of the applicant’s submission, that the question is not whether further specificity or detail could have been included in the conditions of the warrant but rather, in respect to this ground, whether the applicant has established that the warrant is invalid on the basis that it fails to set any real and meaningful parameters as explained in the authorities referred to above at [80]-[81].

123    That is not to be answered by the application of a formula: Beneficial Finance at 543; Corbett at [103]. It is largely a factual and practical evaluation, which may be affected to a significant degree by context and nuance: Caratti (No 2) at [39]-[40].

124    The applicant’s attempt to draw a contrast between the terms of the warrant in this case, and that in Caratti, is artificial and of limited assistance. As explained above, the principles relevant to assessing the sufficiency of the terms of the warrant are well established and depend on the circumstances of the particular case. The assessment must necessarily be case specific. The precision required in a warrant will vary from case to case: Beneficial Finance at 543. That said, the applicant’s comparison with Caratti does not hold true. If anything, the first and second conditions in the Caratti warrant, given their content, are broader or more expansive than in this case. The first condition in the warrant in this case appears to be directed at the format or type of material which exists in an organisation such as the applicant which may, given the evidential material sought, be relevant items. Moreover, particular criticisms of, for example, the first condition which was said to include items not relevant (including planning logs, broadcasting and online schedules and a journalist’s piece to camera) does not assist the applicant’s argument. Given that the warrant is directed to material which will afford evidence as to the commission of the offences, it is not hard to imagine that schedules and the like might contain information which reflect on when, and to whom the information was given. Pieces to camera might encompass unpublished material relating to the Afghan Files Stories. As to the second condition, I note that in Caratti that condition only identifies persons or entities, in contrast to this warrant, which also identifies material which is sought, by reference to a list of publications by the applicant relating to the Afghan Files Stories.

125    Further, the third condition of the warrant in this case is narrower in terms of time frame, and arguably content than in Caratti. For example, in Caratti the warrant offences covered a year, and in one instance years. As the conditions in the warrant are to be read together, and are to be read fairly and not perversely, the content of the third condition must be considered in light of the preceding conditions, which gives the third condition colour, specifically, that it relates to information provided by Mr McBride to Mr Oakes, and “military information” within the meaning of s 73A, relating to what is referred to as the Afghan Files (see [110], [117] above). In Caratti, Wigney J concluded that “[t]o say the very least, the description of each of the offences in the third condition of the warrants left a lot to be desired. In each case the language used was infelicitous, in some respects ambiguous or unclear, and generally showed a lack of appreciation of the terms of the underlying tax legislation”: Caratti (No 2) at [166]. Tellingly, as the respondents correctly observed, the warrant in Caratti, while criticised by the Court, was nonetheless held to be valid. The Full Court relevantly stated “[I]t should be added that the criticisms made by the primary judge of the drafting of the search warrants were well observed and soundly reasoned. However, as his Honour concluded, the search warrants were sufficient for the statutory purpose of confining the object of the search that was authorised and provided sufficient guidance as to what was and was not permitted to be seized”: Caratti at [122].

126    The warrant, read as a whole, sufficiently specified the perimeter for the search and seizure authorised by the warrant. I note that the particulars to ground 3, OA [20] are repeated in respect to the first two offences in ground 4, OA [22], and are also addressed below.

127     The applicant has not established these grounds.

Ground 4, OA [21]-[22]: s 73A Defence Act

Submissions

128    The applicant contends that the warrant is invalid because it purported to authorise the seizure of material that could not afford evidence as to the commission of the first and second suspected offences referred to in the third condition of the warrant, being the offences under s 73A of the Defence Act. The applicant’s submission on this ground is based on what it contends is the correct construction of s 73A of the Defence Act.

129    The applicant submitted that on their proper construction, the general words “other naval, military or air force information” which appear at the end of ss 73A(1) and (2) (extracted at [70] above) are governed by the ejusdem generis rule of statutory construction, and they are limited to information of the same genus as the specific kinds of information referred to in s 73A. It submitted that the relevant genus in s 73A is clear: all the specific items recited in ss 73A(1) and (2) refer to physical buildings or installations. On their proper construction, the applicant submitted, the words “other naval, military or air force information” in the context of s 73A means information about naval, military or air force buildings or installations, and that the legislation was concerned with physical defences, as opposed to “intangible matters such as military know-how”.

130    The applicant submitted that there is nothing in the relevant text or context to indicate that the ejusdem generis rule should not apply to s 73A and outlined four bases upon which this argument was made. First, that s 73A establishes a clear genus, indicating that the Parliament intended for the rule to apply. Second, the drafting of s 73A supports the proposition that the Parliament intended for the rule to apply. If s 73A had been intended to apply to any “naval, military or air force information”, then all of the more specific words in the provision would be otiose. Third, nothing in the statutory context indicates that the rule should not apply. Fourth, nothing in the subject matter of s 73A indicates that the rule should not apply. Section 73A creates criminal offences triable on indictment and potentially punishable by imprisonment for life. Relying on Gibbs J in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576, the applicant submitted that the ordinary rules of statutory construction – including the ejusdem generis rule – should be applied, and any remaining ambiguity or doubt should be resolved in favour of the subject, that is, in favour of a narrower construction. The applicant contended that its construction would not leave a gap in the law in relation to the protection of sensitive defence-related information as at all relevant times there have been other offences dealing with the disclosure and receipt of such information.

131    Based on that, the applicant submitted that by only referring to “military information”, and divorcing those words from their context in s 73A, the third condition of the warrant set out a misleading statement of the offences in s 73A and that it cannot be assumed that the words “military information” would have been understood by the reader of the warrant as having their correct, limited, meaning. Those words gave an erroneous impression of the nature and scope of those offences. By describing the offences in such a misleading way, on the applicant’s submission, Registrar Kane failed to state the offences to which the warrant related, as required under s 3E(5)(a), and purported to authorise the seizure of material that could not afford evidence as to the commission of the offences in s 73A of the Defence Act.

132    The applicant also submitted that to the extent the words “military information”, as they appear in the warrant, have any certain meaning, they are far broader than information about military buildings or installations. It was submitted that in these circumstances the only available inference is that, Registrar Kane proceeded on an incorrect understanding of s 73A and there is a realistic possibility that, if he had proceeded on a correct understanding of s 73A, he would not have issued the warrant (or would not have issued it in its terms).

133    The respondents submitted that the third condition of the warrant clearly describes the suspected offences under ss 73A(1) and (2) and there is nothing misleading about including a description in the warrant of only the parts of s 73A that Mr McBride and Mr Oakes were suspected of having contravened. The respondents noted that the warrant is an instrument that must be read and construed subject to its enabling legislation, and so as not to exceed the power of the issuing officer: Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), s 46. In those circumstances, they submitted that the reference to “military information” must be construed as having the meaning that those words bear in s 73A.

134    The respondents made submissions as to the construction of s 73A(1)-(2), particularly the words “any other naval, military or air force information” in ss 73A(1)(a) and (2)(a). It submitted that those words capture information, which is withheld from public availability, concerning the defences, including the capability, planning and execution thereof, of the Commonwealth and the States through naval, military or air force operations and not confined to “information about naval, military or air force buildings or installations”.

135    The respondents advanced a number of propositions in support of their construction of those provisions. First, those provisions protect information, sourced from within the ADF or the public service, of a kind that is confidential, in the sense of “deliberately kept from general knowledge”. A prohibition on communicating or obtaining government information in an unauthorised or unlawful manner would make little sense if applied to information that is generally available by design of its government originator. Second, whilst ss 73A(1)(a) and (2)(a) contain several alternative and potentially overlapping limbs, the whole of s 73A should be read in light of the phrase “or to any of the defences of the Commonwealth” and the context of the Defence Act as a whole, including the long title and structure of the Act. The concept of information relating to “defences” has formed part of the equivalent provisions ever since their introduction into the Commonwealth statute book in 1903, and was reflected in their earlier colonial antecedents. Properly construed, the section is concerned with limiting communication or obtaining of information that relates, in a meaningful, non-trivial way, to the “defences” of the Commonwealth and the States. Third, on a purposive reading of the provision, the “defences” of the Commonwealth and the States encompass both physical infrastructure (forts, batteries, etc) and intangible aspects of Australia’s defence, including military know-how, troop numbers, capabilities and deployments. There is no basis in the text or context to restrict “defences” to physical defences, or information concerning “physical buildings or installations”. Fourth, the phrase “any other naval, military or air force information” extends s 73A to apply to any other information of that same character (“information as to defences”), both concerning the physical facilities listed in ss 73A(1)(a) and (2)(a) and concerning matters that are not expressly described elsewhere in the provision. It removed any doubt that the provision applies to information relating to the intangible aspects of Australia’s defences; Australia’s participation in conflicts geographically removed from the Commonwealth territory; and conflicts where there is no direct threat to Commonwealth territory or involvement of fixed physical defence infrastructure. Whilst the other limbs of ss 73A(1)(a) and (2)(a), particularly “any defences of the Commonwealth”, may also capture some or all of that information if they are given a breadth commensurate with the provision’s purpose, on a narrower reading they may not. This kind of concern is reflected in the extrinsic material for the bill introducing the phrase “any other naval or military information”, which was enacted at the height of Australia’s participation in World War I, in which the Minister noted that the Defence Act was framed “before war conditions arose” and that the “practical experience of the war has shown the necessity for amendments in order to remove doubts concerning several of the provisions”. Fifth, as to s 73A(1): s 73A(1)(b) specifies that a member of the ADF or public service will only commit an offence under s 73A(1) if the communication is “not in the course of” the person’s official duty. Relevantly this aligns with s 70(1) of the Crimes Act, an element of which is that it was the Commonwealth officer’s “duty not to disclose” the particular information. Sixth, as to s 73A(2): s 73A(2)(b) specifies that a person will only commit an offence against s 73A(2) if his or her conduct in obtaining the relevant information is also independently “unlawful”. In practical terms, the respondents submitted that this confines the section’s scope of operation to the receipt of information in circumstances where the conduct of obtaining is already unlawful by operation of some other legal rule, which would include other criminal prohibitions.

136    The respondents submitted in that context, nothing in the broader context of the warrant suggests that “military information” was intended to bear a wider scope than the statutory words. The respondents provided examples to illustrate this point. However, the respondents submitted that even if there is error it would have no effect on the warrant’s validity.

137    The respondents submitted that a warrant is to be read and construed as valid to the extent possible. They emphasised that the applicant bears the onus of proving that, if the s 73A suspected offences were severed, the warrant would have operated differently such that severance is not possible, and argued that the applicant is unable to discharge that onus in this case. Even if the description of the s 73A offences in the third condition of the warrant was deficient or evidenced some deficient understanding of the law, they submitted that Registrar Kane still had grounds to issue the warrant on the basis of the other offences listed in that condition. On the respondents’ submission, the inclusion of those other offences means that the scope of the search and seizure authorised by the warrant would not have been any narrower if the s 73A offences had been omitted. Noting the breadth of the definition of “thing relevant to an indictable offence” in s 3(1) of the Crimes Act, and of s 3F, all material that could be seized under the s 73A limbs of the third condition could equally be seized under the other limbs. They contended that to sever the s 73A offences would have no effect on the warrant’s scope.

138    In reply, the applicant submitted that when read in its context, the word “defences” does not support the construction of s 73A for which the respondents contend. First, in its ordinary meaning, the word “defences” refers to physical infrastructure, rather than intangible matters such as military know-how (relying on the Oxford English Dictionary, the Shorter Oxford English Dictionary and the Macquarie Dictionary). Second, that meaning is made clear by the context in which those words have appeared in s 73A throughout its history. Third, the other extrinsic materials relied on by the respondents do not assist. Fourth, to the extent that the respondents rely on a purposive reading of s 73A, they fail to identify a purpose derived from “what the legislation says”, instead of an “assumption about the desired or desirable reach or operation” of s 73A. Finally, the applicant submitted that the respondents’ argument which was based on the purported consequences of its construction is unconvincing because information of the nature referred to by the respondents, is covered by offence provisions in other legislation.

Consideration

139    There are two aspects to this ground, first, the construction of s 73A, and second, the consequence of that construction on the first two offences listed in the third condition of the warrant.

The construction of s 73A

140    The respondents’ interpretation of s 73A should be accepted.

141    The applicant’s submission depends on the maxim, ejusdem generis, that where there is a list of things that are specific instances (species) of a class or category (a genus) general words following that list may be restricted to species of that genus: R v Regos [1947] HCA 19; (1947) 74 CLR 613 at 623 per Latham CJ; Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629 (Cody v J H Nelson) at 647 per Dixon J.

142    However, in Gas & Fuel Corporation of Victoria v Comptroller of Stamps [1964] VR 617 at 620, Herring CJ and Adams J observed:

In our opinion, the ejusdem generis rule of construction in this case affords no assistance to the construction of the words "other charge". As is made clear in such cases as R. v. Regos and Morgan (1947), 74 C.L.R 613, at p.63; [1947] A.L.R 308, and Cody v. J. H. Nelson Pty. Ltd., supra, at C.L.R. p. 647, "the ejusdem generis rule is not one to be automatically applied but rather a rule which may by reason of context and subject-matter be of assistance in ascertaining the real intention of Parliament". The more modern view taken of the rule is thus expressed in Anderson v. Anderson, [1895] 1 Q.B. 749, at p. 753, by the Court of Appeal: "prima facie general words are to be taken in the larger sense unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before". We can see no justification from the context or the subject-matter of the statute for controlling the meaning of the general expression "other charge" by reference to the particular instances of "interest and insurance". To do so appears to us mere conjecture as to the intention of Parliament. In any case, the choice of what are natural and normal incidents of a credit transaction as the category to control the meaning of "other charge" would seem, with all respect, to be quite arbitrary. In one of his submissions Mr. Gilbert suggested as the appropriate category charges of a recurring nature, but this to us seems equally speculative. We agree, of course, with Mr. Gilbert in his submission that the words "other charge" cannot be given their evident meaning and must to some degree be restricted; but the restriction we consider is to be found not in any application of the ejusdem generis rule but rather from the context and the subject-matter, the legislation; and we would add that the general words should not be read more restrictively than required from the context and subject-matter.

143    Whether general words ought to be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [127] per Spigelman CJ, Handley and Hodgson JJ agreeing.

144    As Dixon J said in Cody v J H Nelson at 649:

[i]t is wrong to use the rule for an ejusdem-generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter but secundum quid. It should be used as a guide in a process of interpretation which takes into account the whole instrument and the subject matter.

145    Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy. More recently it has been emphasised that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71]; Alcan at [47].

146    As a preliminary observation, the applicant’s submission focussed itself on aspects of s 73A, absent any real consideration of the broader context in which that text appears. Rather, the submission placed heavy reliance on a dictionary definition of “defences” and the ejusdem generis rule.

147    Both parties referred to the history of the provision.

148    I note at the outset, that the long title to the Defence Act is “An Act to provide for the Naval and Military Defence and Protection of the Commonwealth and of the several States”. An Act is to be read as a whole, with the title being part of the Act: s 13(2)(a) Acts Interpretation Act. It is to be taken into account in considering the context in which the other provisions appear, it may indicate the purpose of the Act, and therefore may provide colour to those provisions. The Defence Act deals with the ADF (and the consequent protection of the Commonwealth and States), which, as the respondents contended, is a broad subject matter. The heading to s 73A, which is also part of the Defence Act, is “Unlawfully giving or obtaining information as to defences”.

149    The existence of a provision relating to the disclosure of information relating to defences, has formed part of Commonwealth legislation since the enactment of the Defence Act in 1903. Prior to federation, legislation of Colonial Parliament also reflected the concept: for example: Safety of Defences Act 1890 (Qld), s 6; Criminal Code Act 1899 (Qld), s 84, noting there was not necessarily a consistency of language amongst the colonies.

150    When first enacted, the Defence Act included s 73(4) and (5), which related to the communicating and obtaining of certain information.

151    Section 73(4) relevantly was then in the following terms:

Any member of the Defence Force or officer in the Public Service of the Commonwealth who -

communicates to any person otherwise than in the course of his official duty any plan document or information relating to any fort battery fieldwork fortification or defence work or to any of the defences of the Commonwealth; [emphasis added]

The italicised portion was introduced by this legislation.

152    In 1917 amendments were made to the provision, it becoming s 73A, which then relevantly read:

Any member of the Defence Force or officer in the Public Service of the Commonwealth who communicates to any person otherwise than in the course of his official duty any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth or to any factory, or any other naval or military information shall be guilty of an offence [emphasis added]

Again the italicised portion was introduced by this legislation. I note also that the wording of “to any defences of the Commonwealth” was altered.

153    These amendments were made during Australia’s involvement in World War I, extrinsic material reflecting that at the time the offence was originally framed in peace time, and the practical experience of war where Australia was fighting “in foreign and enemy countries” had “shown the necessity for amendment in order to remove doubts concerning several of the provisions”: Australia, House of Representatives, Debates (1917) Vol HR38, p 2175; Australia, Senate, Debates (1917) Vol S32 p 816.

154    The current and relevant form of the provision which is recited above at [70], was enacted in 2001: Defence Legislation Amendment (Application of Criminal Code) Act 2001 (Cth). This included “or to any factory, or air force aerodrome or establishment or any other naval, military or air force information”. The italicised words were added by the amendment.

155    It is apparent that with each iteration of the provision, there has been a broadening of the concepts involved.

156    The inclusion of “any defences of the Commonwealth” had the effect of broadening the provision, as did, the final phrase in the provision, “or any other naval, military or air force information”. Notably, that final phrase is confined to the concept of “information” rather than “plan, document, or information” which appears in the beginning of subsection 73A(1)(a) and applies to the preceding terms in the provision. Moreover, if that final phrase is to be given any work to do, it must be broader than the concept of physical buildings or installations infrastructure as those concepts are necessarily encompassed in the preceding terms.

157    The applicant’s submission that the phrase “or any other naval, military or air force information” is limited by the preceding words “any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment,” is not supported by the text of the provision considered in context, and given its purpose.

158    The applicant relied heavily on a dictionary definition of “defences,” for example: “plural. (a) Structures which defend or strengthen a place or position against attack; defensive works; fortifications”: Oxford English Dictionary. From that, the applicant described the wording in the amendments as falling within that definition and the preceding terms of the provision.

159    As argued in writing, the applicant originally submitted that “other naval, military or air force information” means “information about naval, military or air force buildings or installations”. However, during the course of oral submissions the applicant accepted that matters such as troop placements may fall within the words “any other naval or military information”. Counsel for the applicant submitted that “troop placements are of the same genus, albeit human resources rather than physical resources. They are of the same genus of the kinds of forts, batteries, fieldwork, fortifications and other defence work which is described in the section: placements of defence infrastructure, human or otherwise, which might provide succour or assistance to an adversary”.

160    The applicant did not have any submission as to the relevance of the fact that the last phrase is confined to “information”. Rather, the applicant submitted that it was difficult to interpret and any ambiguity should be resolved in favour of the subject in refusing to extend a criminal offence. When pressed, the applicant submitted that the relevant question related to what is the content of the information which is caught by the provision. The implication of the applicant’s submission on this point is that the reference to “information” at the end of the subsection, in contrast to “any plan, document or information” which appears earlier in the section, is irrelevant when construing the meaning of the provision. That proposition cannot be correct. The word “information” in the last phrase absent the words “plan” and “document” is plainly relevant to assessing the content of the terms immediately preceding it, in the context of the provision. The use of the word “information” only cannot be ignored because it does not suit the interpretation sought.

161    Indeed, the applicant determined the mischief the provision sought to address only by reference to its conclusion as to the meaning of the terms therein. On that basis it submitted the provision sought to address communication of information otherwise than in the course of official duty that could provide assistance to an adversary in some way such as the placement or layout or operations of a fort, battery, fieldwork, fortification or other physical structure: placements of defence infrastructure, human or otherwise, which might provide succour or assistance to an adversary.

162    If the mischief which the provision sought to address was the communication of information otherwise than in the course of official duty which might provide succour or assistance to an adversary, given the breadth of the terms used in the provision, including the final phrase, there is no reason to confine it to concepts of infrastructure. Work must be given to the final phrase of the provision.

163    Moreover, the applicant’s submission that if the last phrase “any other naval, military or air force information” is not confined by the earlier terms in the way it contends for, then the provision would purport to criminalise a vast array of wholly innocuous information – historic information, non-current information, public-domain information – is incorrect. Leaving aside that the same criticism could be said of public or generally available information about physical buildings or installations, this submission is inconsistent with what the applicant identifies as the mischief the provision seeks to address, communication of information otherwise than in the course of official duty that could provide assistance to an adversary.

164    As the respondents correctly submitted, the provision is a secrecy provision. It is directed to protecting information, sourced from within the ADF or the public service, of a kind that is confidential, that is deliberately kept from general knowledge. It is an offence provision which relates to material that the person is not permitted to communicate except in the course of their official duty. This necessarily implies an element of a duty not to disclose. That characterisation of the provision applies regardless of the construction of the words in s 73A(1)(a).

165    There is no basis in the text of the provision, given the structure of the provision, its context and purpose, to restrict the meaning of “defences” to physical defences, or information concerning “physical buildings or installations”. Nor is there any basis to confine it to the placement of defence structure, human or otherwise. There is no justification from the text, context or subject matter to restrict the general expression by the terms preceding it.

166    Moreover, as the respondents submitted, other dictionary definitions of “defences” and “military” are broader than that relied on by the applicant. Regardless, while there are circumstances where such definitions can be referred to in the process of interpreting a provision, a dictionary is not the starting point of statutory construction, and caution must be exercised: see for example: Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [23] per French CJ, Hayne, Kiefel, Gageler and Keane JJ; Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FCR 92 at [68]-[71] per Kenny, Edmonds and Robertson JJ. The words in the provision take their meaning from the text, context and purpose in which they appear.

167    As the respondents contended, a purposive reading of the provision is to be taken: see for example, s 15AA Acts Interpretation Act.

168    I accept the respondents’ submission that given the terms of the provision in the context of the Act, the “defences” of the Commonwealth and the States encompass both physical infrastructure (forts, batteries, etc) and intangible aspects of Australia’s defence, including military know-how, troop numbers, capabilities and deployments, of the military, navy and air force. This would include battle plans, tactics techniques and procedures, including ROEs of the defence forces. These are all matters which, to use the applicant’s description, might provide succour or assistance to an adversary.

169    Defence force documents, some bearing the security classification “SECRET” and the caveat “AUSTEO”, including ROEs, are capable of falling within s 73A.

Terms of the warrant

170    The applicant’s argument stemming from the construction of s 73A appears to be twofold: first, that the reference to “military information” in the first two offences in the third condition of the warrant is misleading or uncertain as it would not have been understood by the reader to have a limited meaning, and second, that Registrar Kane could not have formed the state of satisfaction required by s 3E because the material authorised to be seized by the warrant – matters relating to the Afghan Files Stories – could not constitute “military information” within s 73A and therefore the only available inference is that he misunderstood its meaning, thereby proceeding on an incorrect understanding of the relevant law (s 73A).

171    First, at the base level, both aspects of the submission are premised on the correctness of the interpretation of that phrase that the applicant contends for. For the reasons given above, that interpretation is incorrect. The provision does not have the limited meaning on which these arguments are premised.

172    Second, the applicant’s submission that the references to “military information” in the 73A offences is misleading because it divorces the words from their context, and implies that the whole of the description in the offence provision must be recited in the offences. This is incorrect. Even leaving aside that the statement of the offence in a search warrant need not be made with the precision of an indictment: Beneficial Finance at 533; Caratti at [37], such recitation would not be required in an indictment. Rather, it is usual practice to refer only to that part of the description relevant to the offence.

173    Third, for the reasons given above at [118] there is no reason to suppose nor any basis to contend that the reader of the warrant would have misunderstood the meaning of “military information” in the context in which it appeared in the warrant to mean anything other than what it means in the context of the relevant offence provision. A warrant is to be read as an instrument made under a relevant Act: Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24 at 41 per McHugh JA citing Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 171-172. The military information referred to is of the kind in s 73A. As explained above, the two authorities referred to by the applicant to suggest otherwise, Dunesky v Elder and Polley v Johnson, relate to circumstances and issues which are factually distinguishable from this case. Given the interpretation of s 73A, there is no basis to contend that the words in the first two offences in the third condition of the warrant would have been understood as having a wider scope than the statutory words. For the reasons given in relation to ground 2, while the military information is not particularised, the warrant read as a whole makes the nature of this information clear. Given the terms of the offences in the warrant, understood, in particular, in light of the second condition, the type of information the subject of the offences was evident from the terms of the warrant.