Commissioner of the Australian Federal Police v Zhao & Anor

The Commissioner of the Australian Federal Police (AFP) sought to appeal a decision of the 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 AFP had issued the notice requiring Mr Zhao and Ms Li to attend its offices to answer questions concerning an investigation into alleged foreign interference offences. Mr Zhao and Ms Li challenged the validity of the notice, arguing that the AFP Commissioner lacked the necessary reasonable suspicion to issue it. The Federal Court found in favour of Mr Zhao and Ms Li, and the AFP appealed to the High Court of Australia.

The High Court was required to determine whether the Federal Court had erred in finding that the AFP Commissioner did not have a reasonable suspicion that Mr Zhao and Ms Li had committed, or were about to commit, a Commonwealth offence, as required by s 3E(1) of the *Crimes Act 1914*. This involved considering the nature of the "reasonable suspicion" required for the exercise of the power under s 3E, and the evidence available to the Commissioner at the time the notice was issued.

The High Court held that the Federal Court had correctly applied the principles governing reasonable suspicion. Their Honours noted that reasonable suspicion requires more than a mere possibility; it must be a suspicion based on reasonable grounds. The grounds must be such as would lead a reasonable person to suspect the commission or impending commission of an offence. In this instance, the Court found that the information before the AFP Commissioner did not, when assessed objectively, give rise to a reasonable suspicion that Mr Zhao or Ms Li had committed, or were about to commit, a foreign interference offence. The information was too vague and speculative to satisfy the threshold of reasonable suspicion.

The appeal was dismissed.