Crane v Gething

Case [2000] FCA 45

FEDERAL COURT OF AUSTRALIA

Crane v Gething [2000] FCA 45

CONSTITUTIONAL LAW – parliamentary privilege – seizure of Parliamentary and Electorate office documents – power of court to determine extent and existence of parliamentary privilege.
ADMINISTRATIVE LAW – judicial review – issue and execution of search warrants – warrants relating to alleged imposition in connection with reimbursement and payment for use of charter air services by Senator – claim for declaration that applicant entitled to benefits – declaratory judgment – criminal conduct.
CRIMINAL LAW –search warrants – judicial review – declaratory judgments – relating to criminal conduct – reluctance of courts to grant such relief.

Crimes Act 1914 (Cth) s 3E, s 79B
Parliamentary Privileges Act 1987 s 5, s 16

York Corporation v Pilkington (1794) 2 Atk 302 cited
Thames Launches Ltd v Trinity House Corporation (Deptford Strond) [1961] 1 Ch 197 cited
Sankey v Whitlam (1978) 142 CLR 1 followed
Imperial Tobacco Ltd v Attorney-General [1981] AC 718 followed
Commissioner for Corporate Affairs v Sansom [1981] WAR 32 discussed
Commonwealth v Sterling Nicholas Duty Free Pty Limited (1972) 126 CLR 297 discussed
Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 discussed
Airedale NHS Trust v Bland [1993] AC 789 discussed
Inglis v Moore (1979) 24 ALR 411 cited
Gouriet v Union of Post Office Workers [1978] AC 435 cited
Attorney-General v Able [1984] QB 795 cited
Attorney-General (NSW) v Australian Fixed Trusts Ltd [1974] 1 NSWLR 110 cited
Corporate Affairs Commission v MG Securities (Australasia) Limited (1975) 1 ACLR 157 cited
Biggs v DPP (1997) 17 WAR 534 discussed
Kunakool v Boys (1987) 14 FCR 489 cited
Flanagan v Commissioner of Australian Federal Police (1995) 60 FCR 149 cited
R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157
R v Murphy (1986) 5 NSWLR 18
O’Chee v Rowley (1997) 150 ALR 199
Grollo v Palmer (1995) 184 CLR 348 followed
Jacobsen v Rogers (1995) 182 CLR 572
Commonwealth v Northern Land Council (1993) 176 CLR 604
Egan v Willis (1998) 195 CLR 424 at 446
Halden v Marks (1995) 17 WLR 447

De Smith Woolf and Jowell, Judicial Review of Administrative Action (5th Edition, Sweet & Maxwell, 1995)
Aronson and Dyer, Judicial Review of Administrative Action (LBC 1996)
Young, Declaratory Orders (2nd Edition, Butterworths (1984)
Zamir & Woolf, The Declaratory Judgment (Sweet & Maxwell, 1993)
Lock, Parliamentary Privilege and the Courts: The Avoidance of Conflict, Public Law, Spring 1985
Harders, Parliamentary Privilege – Parliament versus the Court: Cross-examination of Committee Witnesses (1993) 67 ALJ 109

ARTHUR WINSTON CRANE v RONALD JOHN GETHING, PHILIP RAYMOND THOMPSON and THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE
W5 of 1999

FRENCH J
18 FEBRUARY 2000
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 5 OF 1999

BETWEEN:

ARTHUR WINSTON CRANE
Applicant

AND:

RONALD JOHN GETHING
First Respondent

PHILIP RAYMOND THOMPSON
Second Respondent

THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE
Third Respondent

JUDGE:

FRENCH

DATE OF…

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Crane v Gething [2000] FCA 45
Case
[2000] FCA 45
Decision Date

CaseChat Overview and Summary

Crane v Gething is a case that involves Senator Arthur Winston Crane seeking to challenge search warrants that were issued to search his home and office. The warrants were issued to investigate allegations of fraud related to air charter travel claims. Crane sought to have the warrants quashed on the basis of parliamentary privilege and sought a declaration that his travel claims were legitimate. The court had to decide whether it was appropriate to intervene in the matter given the ongoing criminal investigation.

The legal issues before the court were whether the search warrants were valid and whether Crane could obtain a declaration of innocence from the court. The court also had to determine the proper role of the judiciary in matters involving alleged criminal conduct and parliamentary privilege. The court considered whether it should grant declaratory relief in relation to matters that could attract criminal sanctions when there were no pending criminal proceedings.

The court found that the search warrants were valid and that the matter of parliamentary privilege did not fall for determination by the court. The court held that it was not appropriate for it to grant a declaration of innocence in the absence of pending criminal proceedings. The court emphasised that the judiciary should be cautious in granting declaratory relief in matters that could involve criminal conduct. The court ultimately dismissed Crane's application and ordered that the documents seized be returned to the Senate.

Orders

Orders of the court

1. The application is dismissed.

2. The Applicant is to pay the Third Respondent’s costs of the application.

3. The documents for which parliamentary privilege is claimed and which are presently in the custody of the Court are to be delivered to the Clerk of the Senate to be dealt with in accordance with the directions of the President of the Senate.

4. There be liberty to apply within fourteen days to vary orders 2 and 3.

Background

Background to the litigation

The case raises important issues concerning the proper role of the Court in dealing with allegations of criminal conduct in the context of civil proceedings and the proper role of the Court in determining questions of parliamentary privilege which arise between the Executive and the Parliament and not in the course of judicial proceedings.Factual Background On 18 December 1998, at Perth, Ronald John Gething, a Stipendiary Magistrate issued two search warrants pursuant to s 3E of the Crimes Act 1914. The warrants related to the home and the electorate office of Arthur Winston Crane, a member of the Senate of the Commonwealth Parliament. Senator Crane’s home address referred to in the relevant warrant is Oldfield Location 800 (located at the intersection of Fence Road and Jerdacuttup North Road, Jerdacuttup). The electorate office is 890 Albany Highway, East Victoria Park. Each warrant authorised the officer to whom it was issued to enter and search the premises described, to search for and record finger prints found at the premises, take samples of things found at the premises for forensic purposes and to search the premises for any evidential material that satisfied all of three conditions specified in the warrant and to seize any such evidential material that might be found. The warrant also authorised the executing officer to: “- seize any other thing found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be:- evidential material in relation to an offence to which this warrant relates; or- anything that is relevant to another offence that is an indictable offence against a law of the Commonwealth in that it is evidential material in relation to that offence; if the executing officer or the constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence;”The three conditions referred to were in the following terms: “FIRST CONDITIONthings which are: . originals or copies of any one or more of the following including any of them which are stored on magnetic or electronic storage medium:. Record books. Invoices,. Receipts,. Cash Books,. Ledgers,. Journals,. Sales receipts,. Balance sheets, . Spreadsheets,. Accounts,. Note books,. Notations of flight details, . Correspondence, notes and letters (not being letters of a private or confidential nature either related to Senator Crane, his staff or his constituents),. Employment records,. Travel claims, . Electorate expense claims, . Diaries,. Appointment books, . Parliamentary Guidelines,. Remuneration Tribunal Decisions and Reports,. the acquittal of air charter entitlements,. Claims for air charter entitlements, . Travel itineraries, . Banking records, . Passenger ticketing and passenger movements records, and. Handwritten records detailing flights purporting to have been undertaken by Senator Winston Crane.SECOND CONDITIONthings which relate to any one or more of the following: . Arthur Winston Crane, also known as Winston Crane, Liberal Senator for Western Australia, . The electorate office of Senator Arthur Winston Crane. 890 Albany Highway, East Victoria Park, Western Australia. The Department of Finance and Administration, formerly known as Department of Administrative Services. AD-Astral Aviation. R.P.M. Management Pty Ltd. Aircraft registration number VH-AHY. Aircraft registration number VH-MNI. Aircraft registration number VH-AHK. Aircraft registration number VH-BLW. Aircraft serial number TH-936. Aircraft serial number ME-187. Aircraft serial number TH-911. Aircraft serial number TH-940. Lisa. Lyn. Pasdonnay Pty Ltd. Oldfield location 800, (located at the intersection of Fence Road and Jerdacuttup North Road), Jerdacuttup, Western Australia. Unit 1, Number 97 Ashburton Street, East Victoria Park, Western AustraliaTHIRD CONDITIONThings as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offence(s) against the laws of the Commonwealth: 1.That between 28 December 1994 and 14 July 1996 Arthur Winston Crane imposed upon the Commonwealth contrary to Section 29B of the Crimes Act 1914 by an untrue representation in that he forwarded to the (then) Department of Administrative Services (DAS), invoices showing air charter flights between Perth and places in rural Western Australia with the view to obtaining a benefit, namely payment for charter flights between Perth-Ravensthorpe, Western Australia-Perth.And as an example that: A. On the 26 April 1995 Arthur Winston Crane imposed upon the Commonwealth by an untrue representation, in that he forwarded to DAS an invoice for air charter travel between Perth-Kalgoorlie Western Australia-Perth to the value of $1118. In doing so Mr Crane received the benefit of an air charter flight between Perth-Ravensthorpe-Perth.B. On the 4 June 1995 Arthur Winston Crane imposed upon the Commonwealth by an untrue representation, in that he forwarded to DAS an invoice for air charter travel between Perth-Mullewa, Western Australia-Perth to the value of $1248. In doing so Mr Crane received the benefit of an air charter flight between Perth-Ravensthorpe-Perth.C. On the 14 July 1996 Arthur Winston Crane imposed upon the Commonwealth by an untrue representation, in that he forwarded to DAS an invoice for air charter travel between Perth-Albany, Western Australia-Perth to the value of $1521. In doing so Mr Crane received the benefit of an air charter flight between Perth-Ravensthorpe-Perth.2.That between 28 December 1994 and 14 July 1996, person or persons unknown from R.P.M. Management Pty Ltd trading as AD-Astral Aviation were knowingly concerned in the commission of an offence by Arthur Winston Crane, to wit imposing upon the Commonwealth contrary to Section 29B of the Crimes Act 1914.3.That between the 14 July 1996 and the 3 October 1998 Arthur Winston Crane imposed upon the Commonwealth contrary to Section 29B of the Crimes Act 1914 by an untrue representation in that he forwarded to DAS and DoFA invoices showing air charter flights between Perth and places in rural Western Australia with the view to obtaining a benefit namely payment for charter flights between Perth-Ravensthorpe, Western Australia-Perth.4.That between the 14 July 1996 and the 3 October 1998, person or persons unknown from R.P.M. Management Pty Ltd trading as AD-Astral Aviation were knowingly concerned in the commission of an offence by Arthur Winston Crane, to wit imposing upon the Commonwealth contrary to Section 29B of the Crimes Act 1914.”A third warrant issued on 17 December 1998 in Canberra was directed to premises described as:“The Parliamentary Office of Senator Arthur Winston Crane located at the Senate Wing, Ground Floor, Suite 117, Parliament House, Canberra, Australian Capital Territory.”The issuing officer was Phillip Raymond Thompson, a Stipendiary Magistrate. The terms of the warrant were virtually identical to those of the two warrants issued in Western Australia.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J
As senior counsel for the third respondent said, there are few occasions when any person comes to the court simply seeking to vindicate a privilege of parliament where it is not incidental to some pending cause before the court. Counsel characterised this application, insofar as it related to parliamentary privilege, as an attempt to enforce through the court a claim for privilege, a course not done or permitted in the past. Counsel submitted that if the claim is to be advanced or vindicated then it should be done by the parliament and in the parliament. Counsel for the President of the Senate had no instructions on the question whether the court was an appropriate forum for the ventilation of the privilege issue, but submitted that that was really for the court to decide. No submission was made on behalf of the Senate on the question whether parliamentary privilege under s 16 of the Act could be invoked in relation to the search and seizure of documents pursuant to a search warrant. As is apparent, I agree with the thrust of the submission made by counsel for the third respondent. Where documents the subject of a claim of privilege on the part of a House of Parliament are tendered in a court in the context of a prosecution or other proceeding the court may have to decide the question for itself, applying the provisions of s 16. But the subject documents, being seized in aid of a lawful administrative investigation, the claim for privilege in respect of them does not arise under s 16 and does not otherwise fall for determination by the court in this litigation. Conclusion For the above reasons, the application will be dismissed. I will make an order that the applicant pay the third respondent’s costs of the application, but will allow liberty to apply to vary that order within fourteen days. In respect of the documents which were retained in the custody of the Court and which I have examined, I will direct that they be delivered to the Clerk of the Senate to be dealt with in accordance with the directions of the President of the Senate. As to that order I will also allow the parties, within fourteen days, to make submissions to vary its terms if an alternative disposition can be agreed.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

What all this amounted to was the contention that all of the charter travel taken at the expense of the Commonwealth between December 1994 and December 1995 was within Senator Crane’s entitlement. The question is, assuming that the entitlement could be made out, is Senator Crane able to seek a declaration to that effect and thus in a practical although not legal sense, pre-empt the ongoing police investigation.A Declaration of Innocence Senator Crane’s desire to obtain a declaration from this Court of his entitlement to receive the charter allowances under investigation is understandable. It is a fact of public life today that the making of an accusation or the initiation of an investigation is enough in the minds of some to seal the fate and reputation of the person under investigation. The general question which must be answered in the circumstances of this particular case is whether this Court can and should accede to an application for declaratory relief on an issue of fact where there are no pending proceedings but an investigative process into those issues has been initiated. Courts from time to time grant declaratory relief and other remedies by way of judicial review in relation to matters which are or could be the subject of criminal proceedings. Applications for such relief usually face a substantial threshold the extent of which depends upon whether they concern matters involving past or future conduct and according to whether there are proceedings arising out of the conduct in question, pending in a criminal court:“… the civil courts are reluctant to grant declaratory relief when this involves determining whether particular conduct amounts to a crime because the grant of a declaration could result in conflict between the civil and criminal courts, with the civil courts usurping the proper role of the criminal courts.” – De Smith Woolf and Jowell - Judicial Review of Administrative Action (5th Edition, Sweet & Maxwell, 1995)Nevertheless, as Aronson and Dyer say in Judicial Review of Administrative Action (LBC 1996) at 886: “However, the generalised judicial expressions of reluctance to use the declaration in the area of criminal law ought to be read and applied in context. One should always ask questions such as: Who is bringing these proceedings; the accuser, the accused or a stranger? Are the criminal courts presently seised of the matter? Are they better equipped to deal with it? Would it be efficient to hear this case?”See also Young, Declaratory Orders (2nd Edition, Butterworths (1984) pars 1701-1709 et ff) and Zamir & Woolf, The Declaratory Judgment (Sweet & Maxwell, 1993) pars 4162-4181. The categories of case in which declarations may be sought in a civil court concerning conduct which could attract the sanctions of the criminal law include the following:1.A declaration is sought in relation to past conduct and proceedings are instituted in a criminal court while the civil application is pending. 2.A declaration is sought in relation to past conduct while prior proceedings are pending in connection with that conduct in a court exercising criminal jurisdiction. 3.A declaration is sought in relation to past conduct and there is no conflict with either prior or subsequently instituted criminal proceedings. 4.A declaration is sought to determine whether a proposed course of conduct will contravene the criminal law. Each of these categories can be subdivided into categories where the question upon which the declaration is sought is a question of law or fact or mixed law and fact.