Commissioner of the Australian Federal Police v Zhao and Anor

The Commissioner of the Australian Federal Police (AFP) sought to appeal a decision of the Full Federal Court of Australia concerning the validity of a notice issued under s 3E of the *Crimes Act 1914* (Cth) to Mr Zhao and Ms Li. The dispute centred on whether the notice, which required the production of documents, was validly issued and served, and whether the recipients were obliged to comply with it.

The High Court was required to determine whether the Full Federal Court had erred in finding that the s 3E notice was invalid. Specifically, the Court considered whether the notice was defective for failing to specify the offence in relation to which the documents were sought, and whether the service of the notice on Ms Li, who was not the subject of the investigation, was lawful. The Court also had to consider the proper interpretation of "reasonable excuse" for failing to comply with such a notice.

The High Court held that the Full Federal Court had erred in its interpretation of s 3E. Crennan J, delivering the judgment, reasoned that the provision did not require the notice to specify the particular offence being investigated, but rather that the Commissioner must have a reasonable belief that the documents sought are relevant to an investigation into an offence against Commonwealth law. The Court found that the notice was not rendered invalid by the absence of this specific detail. Furthermore, the Court determined that s 3E authorised the Commissioner to issue a notice to any person believed to be in possession of relevant documents, regardless of whether that person was the subject of the investigation, and that service on Ms Li was therefore lawful. The Court also clarified that a claim of privilege, such as legal professional privilege, could constitute a "reasonable excuse" for non-compliance.

The High Court allowed the appeal, setting aside the orders of the Full Federal Court and remitting the matter to the Federal Court for further consideration of the remaining issues.