Hampton v Commissioner of the Australian Federal Police
[2024] FCA 1079
•18 September 2024
FEDERAL COURT OF AUSTRALIA
Hampton v Commissioner of the Australian Federal Police [2024] FCA 1079
File number(s): SAD 130 of 2023 Judgment of: MCDONALD J Date of judgment: 18 September 2024 Catchwords: ADMINISTRATIVE LAW – application for judicial review – where search warrants issued pursuant to s 3E of the Crimes Act 1914 (Cth) – where applicant’s home searched by Australian Federal Police pursuant to warrants – where applicant was invited to, and did, participate in interview by Services Australia while search conducted –– whether decisions to apply for, issue and execute warrants were legally unreasonable – whether decisions to propose interview and ask questions in course of performing duties as employee of the Australian Public Service amenable to judicial review on ground of legal unreasonableness – whether decisions to invite applicant to participate in interview and to conduct interview were legally unreasonable – application dismissed
CRIMINAL LAW – search warrants – whether warrants invalid – where applicant claimed conditions in warrants did not meaningfully limit scope of search authorised by them – whether description of offence in warrants sufficient to adequately define object of search – application dismissed
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Crimes Act 1914 (Cth) ss 3, 3C, 3E, 3F, 3G, 3H, 3J
Criminal Code (Cth) s 135.1
Judiciary Act 1903 (Cth) s 39B
Public Service Act 1999 (Cth) ss 13, 15, 20, 25, 33, 65
Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 37, 38
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) ss 63, 64
Cases cited: Annetts v McCann (1990) 170 CLR 596
Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151
Australian Broadcasting Corporation v Kane (No 2) (2020) 377 ALR 711; [2020] FCA 133
Ayles v The Queen (2008) 232 CLR 410; [2008] HCA 6
Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523
Caratti v Commissioner of Australian Federal Police (No 2) [2016] FCA 1132
Caratti v Commissioner of Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177
Clough v Leahy (1904) 2 CLR 139
Davis v Commonwealth (1988) 166 CLR 79
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23; [2021] FCAFC 213
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214; [2023] HCA 10
Director of Consumer Affairs Victoria v The Good Guys Discount Warehouses (Australia) Pty Ltd (2016) 245 FCR 529; [2016] FCA 22
Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575; [2023] HCA 22
Dunesky v Elder (1994) 54 FCR 540
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7
Hartley v Commissioner of Australian Federal Police [2023] FCA 368
Hartley v Commissioner of Australian Federal Police [2023] FCAFC 197
L v South Australia (2017) 129 SASR 180; [2017] SASCFC 133
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32
Nicholls v Australian Federal Police (2009) 192 A Crim R 425; [2009] FCA 15
Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
Smethurst v Commissioner of Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14
Wilhelm v McKay (2007) 173 FCR 301; [2007] FCA 367
Williams v Commonwealth (2012) 248 CLR 156; [2012] HCA 23
Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301
Division: General Division Registry: South Australia National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 217 Date of last submission: 14 August 2024 Date of hearing: 31 July 2024 Counsel for the Applicant: The Applicant appeared in person Counsel for the First and Second Respondents: Mr P H d’Assumpcao Solicitor for the First and Second Respondents: Australian Government Solicitor Counsel for the Third Respondent: The Third Respondent filed a submitting appearance ORDERS
SAD 130 of 2023 BETWEEN: STACEY LEE HAMPTON
Applicant
AND: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
First Respondent
CHIEF EXECUTIVE OFFICER OF SERVICES AUSTRALIA
Second Respondent
KARIM SOETRATMA
Third Respondent
ORDER MADE BY:
MCDONALD J
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCDONALD J
INTRODUCTION
On 20 September 2023, an officer of the Australian Federal Police (AFP), Officer Bevan Moroney, executed two search warrants at the home of the applicant, Stacey Lee Hampton. The warrants had been issued pursuant to the Crimes Act 1914 (Cth) on 18 September 2023 by the third respondent, a South Australian Magistrate. Pursuant to one of those warrants, Ms Hampton’s home was searched by Officer Moroney and other officers of the AFP, as was a vehicle that was present at the premises, a black Mercedes Benz (Mercedes) owned by Ms Hampton. Pursuant to the other warrant, a white Porsche (Porsche), which was registered in Ms Hampton’s name but used by her mother, was searched.
While the search of Ms Hampton’s home was taking place, an investigator employed by Services Australia, Julie Parsons, also arrived at Ms Hampton’s home. Ms Parsons hand-delivered to Ms Hampton a letter inviting her to participate in an interview. After Ms Hampton agreed to be interviewed, Ms Parsons conducted an interview with her, together with another Services Australia investigator, Jason Otte.
By her second amended originating application for judicial review, Ms Hampton contends that the decisions of the Magistrate to issue each of the two warrants were invalid. She also contends that the decisions to apply for the issue of the two warrants were invalid, and that the decisions of Officer Moroney to execute the two warrants were invalid. Ms Hampton further contends that two decisions made by Ms Parsons were invalid or unlawful: the decision to request an interview by hand-delivering a document to Ms Hampton in her own home, and the decision to proceed to conduct the interview at Ms Hampton’s home on the morning when the search was conducted. Ms Hampton seeks relief in the Court’s original jurisdiction under both s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).
For the reasons that follow, I am not satisfied that any of the decisions which Ms Hampton challenges were unlawful or invalid. Accordingly, I consider that the application for judicial review should be dismissed.
Parties
Ms Hampton commenced these proceedings on 28 September 2023. She initially named the AFP as the first respondent and Services Australia as the second respondent, and identified Officer Moroney and Ms Parsons as the relevant decision-makers. Later, at the suggestion of the legal representatives of the first and second respondents, the Commissioner of the AFP and the Chief Executive Officer of Services Australia were substituted as appropriate parties responsible for decisions or actions taken on behalf of the AFP and Services Australia respectively.
At the hearing on 31 July 2024, on the oral application of Ms Hampton, I ordered that the Magistrate be joined as the third respondent to the proceedings. I considered that the Magistrate was a necessary party in circumstances where the relief sought by Ms Hampton included a writ of certiorari or an order quashing the decision of the Magistrate to issue the search warrants and declarations that the warrants were invalid: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 at 310 [43] (McHugh J), 325 [91] (Gummow J), 341 [153] (Kirby J), 347 [180] (Hayne J); Nicholls v Australian Federal Police (2009) 192 A Crim R 425; [2009] FCA 15 at 432 [40]. The Magistrate subsequently filed an appearance submitting to any order save as to costs.
Evidence relied upon
Ms Hampton relied upon affidavits affirmed by her on 28 September 2023, 14 December 2023 (certain paragraphs only) and 23 May 2024, and an affidavit of Ms Hampton’s mother, Leanne Stephens, affirmed on 20 May 2024. The affidavits on which Ms Hampton relied were written in a style that did not always distinguish clearly between evidence and submissions. To the extent that the affidavits include statements of conclusion or opinion, or assertions about the characterisation of the conduct of other persons or of the search warrants, as opposed to descriptions of events as Ms Hampton and Ms Stephens observed them, I have treated them as submissions.
The first and second respondents relied upon an affidavit of Rodger James Prince affirmed on 20 December 2023 and an affidavit of Brittany Michelle Farinola affirmed on 17 May 2024.
FACTS
The issue and execution of the warrants
The Magistrate was an “issuing officer” within the meaning of s 3C of the Crimes Act. Mr Prince deposed to the fact that, on 18 September 2023, four search warrants were issued by the Magistrate, namely:
(a)a search warrant for the search of the premises at Ms Hampton’s home address (Premises Warrant);
(b)a search warrant for the search of a conveyance, namely the Porsche (Conveyance Warrant);
(c)a search warrant for the search of a conveyance, namely the Mercedes; and
(d)a search warrant for the search of a person, namely Ms Hampton.
Mr Prince further deposed to the fact that the first two warrants – the Premises Warrant and the Conveyance Warrant – were executed by Officer Moroney on 20 September 2023.
The other two warrants were not executed. The evidence did not explain why Officer Moroney elected not to execute them. In accordance with s 3E(5)(e) and (5A) of the Crimes Act, any authority which they conferred has since expired. Because they were never executed, the issue of the other two warrants has not had any practical effect on Ms Hampton’s rights or interests, and Ms Hampton did not seek any relief in relation to them. These reasons are therefore directly concerned only with the two search warrants that were executed on 20 September 2023; that is, the Premises Warrant and the Conveyance Warrant.
The search warrant relating to Ms Hampton’s home
The Premises Warrant was entitled “Search Warrant for Search of a Premises” and was identified on its face as having been issued pursuant to s 3E of the Crimes Act. It was addressed to Officer Moroney. It recited that he was a constable within the meaning of the Crimes Act and the executing officer in relation to the warrant. The Premises Warrant identified Ms Hampton’s home address as the warrant premises, and included a brief description of the premises. That description indicated that the premises extended to, among other things, any “conveyance” on the premises.
The Premises Warrant recited that the Magistrate was satisfied by information on oath that there were reasonable grounds for suspecting that there was (or would be within the next 72 hours), at the address identified in the warrant, evidential material that satisfied each of three identified conditions. The conditions were set out as follows:
FIRST CONDITION
Things which are:
•Computer equipment and associated cables, including computers, printers, laptops, tablets, smartphones, SIM cards, computer hard drives;
•Electronic medium capable of storing data / information electronically; including flash media, compact discs, digital video discs, cryptocurrency and other electronic and digital media storage devices;
•Records relating to employment and/or self-employment, independent sole trader, business information, contracts, taxation documents, payslips and other employment and/or self-employment information; and/or
•Mobile telephones, including smartphones and personal digital assistants, telephone packaging and Subscriber Identity Module cards, telephone account statements, mobile memory cards.
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:
•Identity documentation, including birth certificates, birth extracts, change of name certificates, driver’s licences, passports;
•Financial records including bank account statements, bank documentation, loan documents, deposit books, passbooks, cheque butts, cheque requisition forms, cash receipt books, cash payment books, general ledgers, general journals, invoices, receipts, deposit and cheque books and records of transfer of monies;
•Cryptocurrency records including digital currency, digital funds and digital assets, cryptocurrency wallets, digital currency wallets, cold wallets, private keys and seed phrases;
•Computer access logs and records;
•Hand written and electronic notes;
•Diaries and diary notes;
•Telephone, mobile telephone and internet account records including statements;
•Records of communication including correspondence, reports, notes of conversations, electronic mail, letters and notes;
•Records of communication stored on WhatsApp, Messenger or other electronic messaging service;
•Records from electronic mapping services;
•Records from social media accounts; and
•Records stored in iCloud or other cloud storage service.
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:
•Fenix International;
•OnlyFans;
[several variants of Ms Hampton’s name]
•[a reference number used by Centrelink or Services Australia when corresponding with Ms Hampton];
[several email addresses, each apparently relating to Ms Hampton]
•[another number, the significance of which is not apparent from the evidence before the Court]; and
•Bank account [bank account number].
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 1 January 2021 and 31 May 2023, in the state of South Australia, Stacey Lee HAMPTON dishonestly caused a loss, by not declaring an accurate income thereby receiving payments for Parenting Payment Single and Carer Payment which she was not entitled to, to another person, namely Services Australia, which is a Commonwealth entity, knowing or believing that the loss would occur contrary to S135.1(5) of the Criminal Code 1995 (Cth). Penalty: 10 years imprisonment.
The Premises Warrant recited in detail what it authorised the executing officer or a constable assisting to do, and identified the particular provisions of the Crimes Act that provided that authority. The Premises Warrant then stated:
The offences to which this warrant relates are those specified above in the third condition.
Thus, the third condition served the dual functions of (a) identifying part of the content of the state of satisfaction that had been reached by the Magistrate, and (b) identifying the offence to which the Premises Warrant related.
The search warrant relating to the Porsche
Like the Premises Warrant, the Conveyance Warrant was addressed to Officer Moroney. It was in a form generally similar to the Premises Warrant, except that it made reference to a “conveyance” rather than to “premises”. The Porsche was identified on the face of the warrant as the conveyance to which it related.
The three conditions listed in the Conveyance Warrant were the same as the conditions listed in the Premises Warrant, which are reproduced at [13] above. The offence to which the Conveyance Warrant related was, similarly, identified as the offence described in the third condition.
The conduct of the search
The affidavits on which Ms Hampton relies include evidence about the conduct of the search, including as to some statements made by one or more AFP officers in the course of the search. Most of that evidence was expressed in quite general terms and the affidavits did not establish whether any of the officers described was Officer Moroney. The first and second respondents submitted that, even assuming that Ms Hampton’s evidence of what had occurred during the search were correct, it was of limited relevance to the issue of the validity of the decisions relating to the warrants, and did not establish any reviewable error in relation to any of the challenged decisions. Consistently with that general approach, most of Ms Hampton’s evidence as to what occurred during the search was not challenged or contradicted by the first and second respondents. I generally accept her evidence and that of Ms Stephens. However, that evidence is ultimately of little relevance to the grounds of judicial review having regard to the way the arguments were developed by Ms Hampton.
The interview between Ms Parsons and Ms Hampton
Some time in the morning of 20 September 2023, after the search by AFP officers had commenced, Ms Parsons arrived at Ms Hampton’s home.
The evidence did not reveal the precise basis for the legal authority relied upon by Ms Parsons to enter Ms Hampton’s property. She may have entered the premises under the authority of the Premises Warrant on the basis that she was assisting Officer Moroney in the search of the premises. Another possibility is that Ms Hampton consented to Ms Parsons’ entry on the understanding that Ms Hampton understood (based on what she had been told by officers of the AFP) that Ms Parsons was likely to be able to assist her to better understand the nature of the allegations and the purpose of the search. Ms Hampton’s submissions proceeded on the basis that Ms Parsons’ entry onto her property would not have occurred as it did but for the execution of the Premises Warrant and the fact that the search was occurring. I did not understand the first and second respondents to suggest otherwise.
While the search of Ms Hampton’s home was ongoing, Ms Parsons personally handed Ms Hampton a letter dated 20 September 2023. Given that Ms Parsons’ decision to provide Ms Hampton with this letter on the day of the search is one of the decisions which Ms Hampton contends was unlawful or invalid, it is appropriate to set out the substantive content of the main part of the letter. It reads as follows:
Offer to participate in a formal record of interview
I am writing to you about an investigation into your circumstances and to offer you the opportunity to participate in a formal record of interview.
We are responsible for detecting and investigating suspected fraudulent activity in respect of the payments and services delivered on behalf of the Australian Government. This includes investigating people who may have misrepresented or failed to advise of their true circumstances.
As a result of our investigation into this matter, we allege that you knowingly failed to advise of changes in your circumstances in order to gain a payment or payments that you were not entitled to.
We have reached a view that there are reasonable grounds for believing you have committed a criminal offence. If we maintain this view, the matter may be referred to the Commonwealth Director of Public Prosecutions for consideration of prosecution action.
Your formal record of interview
Before any further action is taken, we would like to provide you with the opportunity to respond to the allegation/s by participating in a formal record of interview. We are not exercising any legislative power to compel you to attend a formal interview, and you are under no obligation to comply. However, any information you provide will assist us in determining further actions.
Before you decide to participate in an interview, it is important for you to know that:
•the purpose of the interview is to provide you with the opportunity to respond to the allegation/s,
•the interview is voluntary and you have the right to decline.
•what you say in the interview may be used as evidence in a criminal prosecution and to determine your previous and/or ongoing eligibility for payments and services, and
•you have the right to seek independent legal advice before deciding to participate.
If you wish to participate in the interview, please call me on the number at the top of this letter. If you are outside the local area, or outside of Australia, you can call and reverse the charges.
If you do not contact us by 4 October 2023 we will finalise our investigation and if appropriate refer the matter to the Commonwealth Director of Public Prosecutions for consideration. We may also make a decision about your previous and/or ongoing eligibility for payments and services.
More information
There is more information about the interview, your rights and what can happen next on the following pages of this letter. It is important that you read this information before making your decision to participate in the interview.
If you have any questions or would like more information, please call me on the number at the top of this letter.
(Emphasis in original.)
The letter was signed off with Ms Parsons’ name and job title. As the penultimate paragraph of the letter indicates, there were two additional pages which set out further general information relevant to the interview and the investigation process. That information includes the following statement:
The interview is voluntary and you do not have to attend. You have the right to decline. If you agree to participate, you can change your mind or terminate the interview at any stage. You also have the right to have a support person present during the interview, such as a lawyer, adult friend or relative.
I infer that parts of the letter, including the last two pages, adopt a standard form commonly used for letters of this kind. The letter was evidently drafted on the basis that it would be received before any time was fixed for an interview, that a time and place for an interview would be fixed if the recipient indicated that she was prepared to participate, and that the interview would take place at a location to be nominated by the investigator and to which the recipient would need to travel. On the morning of 20 September 2023, the letter was handed to Ms Hampton in person and she indicated that she was prepared to participate in an interview, which then proceeded at her home on the same morning.
The interview commenced at around 9.26am. Ms Parsons generally conducted the interview and Mr Otte was present and asked questions from time to time. The interview was recorded. A copy of the transcript of the interview is annexed to Ms Farinola’s Affidavit. All parties agreed that the transcript accurately records what was said in the interview.
At the beginning of the interview, Ms Parsons informed Ms Hampton (among other things) that the interview was being recorded; that Ms Parsons was making inquiries into an allegation that Ms Hampton had been claiming payments from Centrelink without disclosing her true circumstances; that Ms Hampton was not obliged to say or do anything unless she wished to do so; and that whatever she did say or do may be used in evidence. Ms Hampton indicated and demonstrated that she understood the effect of the caution. She declined the opportunity to speak to a legal practitioner.
Shortly after the interview began, Ms Hampton’s mother, Ms Stephens, arrived at the premises. The interview and the recording were suspended for a short time. After that, Ms Stephens was present as a support person for Ms Hampton for the remainder of the interview. Once the interview re-commenced, Ms Parsons reminded Ms Hampton that she was not obliged to say or do anything unless she wished to do so, the effect of the caution was again summarised, and Ms Hampton again acknowledged that she understood it.
At the end of the interview, the following exchange was recorded:
Ms Parsons:Have the answers you’ve been — you’ve given during this interview — been made of your own free will?
Ms Hampton: Yes.
Ms Parsons:Has any threat, promise or inducement been made or held out to you, to give the answers to the questions I’ve asked during this interview?
Ms Hampton: No. You mean held under duress? Heh. No.
Ms Parsons asked Ms Hampton if she had any complaints in relation to the interview or her treatment by Ms Parsons or Mr Otte. Ms Hampton indicated that “[t]he interview was fine” but that she did have complaints about the execution of the search warrant. In particular, she said that the search warrant was invasive and that it was not necessary because, if Ms Parsons and Mr Otte had come without the AFP officers, Ms Hampton would have been co-operative. Ms Hampton expressed concern about the potential effect of the search on her children’s wellbeing. The interview concluded at 11.16am.
THE DECISIONS UNDER REVIEW AND GROUNDS OF JUDICIAL REVIEW
In her second amended originating application for judicial review, Ms Hampton identifies “two decisions” to which her application relates. They are described as follows:
(a) The search warrant(s) sought and obtained under s 3E of the Crimes Act 1914 (Cth) by the First Respondent, Commissioner of Australian Federal Police, executed by Agent Bevan Moroney of the Australian Federal Police; and
(b) The Request for a Formal Interview sought and obtained presumably under the Human Services (Centrelink) Act 1997 regulated under the Human Services (Centrelink) Regulations 2011, by the Second Respondent, Chief Executive Officer of Services Australia, executed by Agent Julie Parsons.
(Emphasis in original.)
Although the grounds of judicial review were organised around these two general topics – the search warrants and the interview – there was at times a lack of precision as to exactly what “decisions” were said to be invalid or unlawful. In relation to the search warrants, most of Ms Hampton’s submissions focussed upon what was stated on the face of the warrants. Ms Hampton confirmed that she challenged the decisions to apply for the warrants and to execute them, as well as the decision of the Magistrate to issue them.
The second amended originating application for judicial review, under the heading “Grounds relied on for judicial review”, set out five grounds on which it was contended that the search warrants, or decisions made in respect of them, were invalid:
a.Ground 1 – that, on its proper construction, s 3E of the Crimes Act 1914 (Cth) did not authorise the Respondents decision to obtain the warrant and execute it without it being an unlawful decision;
b.Ground 2 – that the three conditions of the search warrant’s did not provide a real and meaningful perimeter to the evidential matters the search warrant’s purportedly authorised to be search[ed] for and seized.
c. Ground 3 – That, because of the conclusively, vague and uncertain manner in which the suspected offence (allegation) was expressed in the third condition of the search warrants:
i. The Respondents failed to comply with the requirements of s 3E(5)(a) of the Crimes Act 1914 (Cth) to state properly and concisely the alleged offences to which the warrant relied on; and
ii. The search permitted by the search warrants exceeded what was justified by the material before the magistrate in seeking the search warrants.
d. Ground 4 – the Respondents decision to obtain the search warrants were legally unreasonable and an abuse of power and in doing so, obtained 3 search warrants without precise reason leaving the search open to abuse of power and without any limitations.
e.Ground 5 – the Respondents decision to seek, the search warrant was legally unreasonable and an abuse of power and parliament unlikely intended such a decision in this manner to be made, given the admissible evidence the Respondents hold and lack of consideration.
The second amended originating application for judicial review also sets out two grounds on which Ms Hampton contends that decisions made by Ms Parsons in relation to the interview were invalid or unlawful:
f. Ground 6 – The Second Respondents decision to hand deliver a formal request for an interview whilst 3 Commonwealth search warrants were being executed, was legally unreasonable and an abuse of power, not intended for the likelihood of fishing for evidence.
g. Ground 7 – The Respondents decision to request a formal interview during 3 extensive and significant search warrants being executed was unreasonable, no other person in that position would have made that decision and the agent, Julie Parsons, in executing the decision to persuade the Applicant to participate whilst the search warrants were being executed, was an abuse of power and one made in bad faith and misleading.
The second amended originating application for judicial review, still under the heading “Grounds relied on for judicial review”, contains several further paragraphs which are generally in the nature of particulars of or submissions concerning the seven grounds set out above, but which appear to extend those grounds in some respects. The parties were content for me to treat the grounds and these additional paragraphs as delimiting the scope of the grounds in issue in the proceedings.
As can be seen, Ms Hampton’s originating application and submissions at times referred to the execution of three search warrants. However, the evidence before the Court was that only two of the warrants issued by the Magistrate were ultimately executed: the Premises Warrant and the Conveyance Warrant. Ms Hampton confirmed at the hearing that she accepted that only those two warrants had been executed and that her challenge was limited to them.
The Premises Warrant was relied upon by Officer Moroney to conduct the search of the Mercedes, which was at Ms Hampton’s home when the Premises Warrant was executed. The separate warrant specifically authorising the search of the Mercedes was not executed. I shall return to the issue of whether the search of the Mercedes was authorised by the Premises Warrant at [127]-[136] below.
Putting aside that discrete issue, Ms Hampton’s submissions and grounds of judicial review are addressed to the validity of the decisions to apply for, issue and execute the Premises Warrant and the Conveyance Warrant, and not to the separate issue of whether the search that was conducted exceeded the limits of the authority conferred by the warrants.
Ms Hampton has not been charged with any offence. I note that, if she were to be charged with an offence then it would be open to her to seek the exclusion of certain evidence at the trial of the offence on the ground that the gathering of that particular evidence in the course of the search was unlawful (including on the ground that it was not authorised by the warrants that were executed) or otherwise improper: Bunning v Cross (1978) 141 CLR 54; Evidence Act 1995 (Cth), s 138. It would also be open to Ms Hampton to contend that the record of the interview conducted with her, or evidence of particular questions and answers given in the course of the interview, should be excluded in the exercise of the trial judge’s discretion. Nothing in these reasons is intended to express any view about those kinds of questions.
DECISIONS RELATING TO THE ISSUE AND EXECUTION OF THE WARRANTS
Relevant statutory provisions: Crimes Act
Both the search warrants were issued by the Magistrate pursuant to s 3E of the Crimes Act, which is the first provision in Division 2 of Part IAA of the Act. Section 3E, so far as immediately relevant to the issues raised in the proceedings, provides:
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.
Note: For the issue of delayed notification search warrants, see Part IAAA.
(2)An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.
…
(5) If an issuing officer issues a warrant, the officer is to state in the warrant:
(a)the offence to which the warrant relates; and
(b)a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and
(c)the kinds of evidential material that are to be searched for under the warrant; and
(d)the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and
(e)the time at which the warrant expires (see subsection (5A)); and
(f)whether the warrant may be executed at any time or only during particular hours.
…
(6)The issuing officer is also to state, in a warrant in relation to premises:
(a)that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i)evidential material in relation to an offence to which the warrant relates; or
(ii)a thing relevant to another offence that is an indictable offence; or
(iii)evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and
(b)whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
…
Section 3C is an interpretation provision which supplies definitions of certain terms for the purposes of Part IAA. Relevantly for the present proceedings, “premises” is defined to include “a place and a conveyance”. The term “conveyance” is itself defined, in s 3(1) of the Crimes Act, to include “an aircraft, vehicle or vessel”. Thus, a search warrant issued under s 3E may relate to a “place” or (among other things) a “vehicle”.
Section 3F identifies what is authorised by a search warrant. Relevantly, s 3F(1) provides that a warrant that is in force in relation to premises authorises the executing officer or a constable assisting:
…
(c)to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d)to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii)evidential material in relation to another offence that is an indictable offence; …
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence;
…
Section 3G provides that, in executing a warrant, the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; that the executing officer and any constable assisting in executing the warrant may use such force as is necessary and reasonable against persons or things; and that other persons who have been authorised to assist in executing the warrant may use such force as is necessary and reasonable against things.
Section 3H(1) requires that the executing officer or a constable assisting make available to the occupier of premises, or another person who apparently represents the occupier, a copy of a warrant that is being executed in relation to the premises. Section 3H(3) provides that, if a person is searched under a warrant in relation to premises, the executing officer or a constable must show that person a copy of the warrant.
Section 3J of the Crimes Act is entitled “Specific powers available to constables executing warrant”. Section 3J(1) provides:
In executing a warrant in relation to premises, the executing officer or a constable assisting may:
(a)for a purpose incidental to the execution of the warrant; or
(b)if the occupier of the premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
Relevant statutory provision: Criminal Code
Each of the warrants identified s 135.1(5) of the Criminal Code (Cth) (being the Schedule to the Criminal Code Act 1995 (Cth)) as the legislative source of the offence to which they related. Section 135.1(5) provides:
(5) A person commits an offence if:
(a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and
(b) the first‑mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and
(c) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
“Commonwealth entity” is defined in the “Dictionary” (at the end of the Criminal Code) to mean “the Commonwealth” or “a Commonwealth authority”. “Commonwealth authority” is, in turn, defined as “a body established by or under a law of the Commonwealth”, excluding certain kinds of bodies that are not presently relevant.
Contentions relating to the sufficiency of the information on the face of the warrants
There is some overlap in the grounds of judicial review, and particular submissions advanced by Ms Hampton did not always correspond precisely with a particular ground. In what follows, I have attempted to address each of the arguments relied upon by Ms Hampton, without necessarily linking them to a particular ground of judicial review.
The second and third grounds of judicial review are interrelated. By the second ground of judicial review, Ms Hampton contends that the three conditions set out in each of the two search warrants that were executed did not impose a real and meaningful limit to the evidential material for which the warrants authorised the executing officer and those assisting him to search. She submits that the effect was that the warrants were, in substance, “general warrants”. As part of the third ground of review, Ms Hampton contends that the warrants did not comply with the requirements of s 3E(5)(a) of the Crimes Act because they failed adequately to state the alleged offence to which they related. The arguments overlap to a significant extent, because the main feature of the warrant that was relied upon as demonstrating a failure to impose real and meaningful limits on the search was the breadth of the description of the alleged offence.
Overview of relevant legal principles
The relevant principles regarding the requirement that a search warrant identify the offence or offences to which it relates were the subject of discussion by the High Court in Smethurst v Commissioner of Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14 (Smethurst). In that case, the Court held that the warrant under consideration was invalid on the grounds that the warrant did not state the offence to which it related with sufficient precision, and that it significantly misstated the offence in a way that did not reflect the elements of the offence created by s 79(3) of the Crimes Act.
Ms Hampton relied upon several passages in the judgment of the plurality, comprising Kiefel CJ, Bell and Keane JJ, to support her argument that the conditions stated in the warrant were too broad, and that their breadth resulted in the invalidity of the warrant. First, their Honours said (at 199 [22]):
The requirement that the offence to which a warrant relates be stated in the warrant has its origins in the common law’s refusal to countenance the issue of general warrants and its strictly confining any exception to the principle that a person’s home is inviolable. General warrants, as their name implies, contain no specification of the object of the search and purport to confer a free-ranging power of search.
(Citations omitted.)
The plurality in Smethurst described the “identification of the offence in question” as central to the scheme of authorisation of warrants provided for in Part IAA of the Crimes Act (at 200 [26]). The protective purpose to which the provisions of Part IAA were directed could only be achieved (at 201 [27]):
by the nature of the offence the object of the warrant being stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand.
(Citation omitted.)
Their Honours accepted that it was not necessary that a warrant state an offence with the same precision and specificity as is required for an indictment. Rather, the test is one of “sufficiency to indicate the areas of the search”. This reflects the requirement “that persons executing and affected by the warrant understand what is being sought” and “[i]f the object of the search is not identified the warrant becomes a general warrant” (at 201 [28]). The test is an objective one, which has regard to the content of the warrant itself and does not take into account any ancillary information that the person whose premises are to be searched may have about the alleged offence to which the warrant is intended to relate (at 201 [29]).
The plurality accepted that what is sufficient in a given case may vary with the nature of the offence (at 201 [30]). They referred to the statement of the offence approved in New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32 as an example of an offence that could be shortly described in a warrant. The description of the offence in that case was “Possession of Firearm, Firearms Act No 25/1989 Sect 5(a)”. Evidently, the requirement that the warrant identify the particular offence to which it related was not thought to mean it was necessary that the warrant identify, in any way, a particular firearm that was the subject of the offence. The plurality in Smethurst concluded their discussion of general principles by restating the test as follows (at 202 [30]):
On the other hand, when a statute provides for the commission of a somewhat indeterminate number of offences, a general reference to a section may not be sufficient. No verbal formula is possible, rather in each case it is necessary to apply the principle that the warrant should describe the nature of the offence so as to indicate the bounds of the search, and to assess the sufficiency of what is provided from the point of view of those reading it.
(Citations omitted.)
In Smethurst, Gageler J (at 227 [115]), Nettle J (at 236 [142]) and Gordon J (at 246 [166]) agreed with the reasons of Kiefel CJ, Bell and Keane JJ for holding that the search warrant purportedly executed in that case did not comply with s 3E(5) of the Crimes Act and was therefore invalid. The principles identified therefore reflect the position of at least a majority of the High Court.
I do not understand the reasons of Edelman J in Smethurst to involve any different approach to the principles to be applied. Justice Edelman also connected the minimum content of the statement of the relevant offence to the capacity of the warrant to fulfill its purposes (at 259 [204], 260 [206]). His Honour provided further guidance in relation to the requirement of s 3E(5) of the Crimes Act that the warrant state the offence to which it relates, including the following (at 260-1 [207], 261-2 [209]-[210]):
In light of the purpose of s 3E(5), a warrant must have both sufficient content and sufficient clarity as to (i) the offence(s), (ii) the place or person, and (iii) the kinds of material sought, in order to “ensur[e] the proper identification of the object of the search”. Necessarily, since a search warrant will often precede a charge, the minimum degree of content is less than the particulars that would be required in an indictment. Nevertheless, it has been repeatedly stated for decades that the detail in the warrant must be of sufficient content and clarity to give reasonable guidance to the executing officer and those assisting in the execution of the warrant to decide if the things to be seized are within the scope of the warrant and to enable the person whose premises are subjected to the search to understand the basis for the search.
…
When the statement in a warrant is interpreted, in some circumstances it will have sufficient content even if it provides only the section and subject matter of the offence. For instance, in Brewer v Castles [(1984) 1 FCR 55 at 56], the statement of one relevant offence was “[s]ection 86(1)(e) of the Crimes Act 1914 (Cth), to wit, conspiracy to defraud the Commonwealth”. That statement was described by Pincus J in Beneficial Finance Corporation v Commissioner of Australian Federal Police [(1991) 31 FCR 523 at 525] as a “good example” of one of the wide statements of the nature of an offence in a warrant which have “survived attack”. Indeed, provided that the correct offence can be identified as a matter of interpretation, a description can be valid even if an incorrect section number in the relevant statute is specified.
In other circumstances, however, such as where the terms of an offence are expressed at a high level of generality and capable of application to a wide variety of circumstances, the mere reference to the section and subject matter of the offence will not be sufficient. For instance, in a search warrant for a many-storied building of a multinational company it would not be sufficient to state only that the offence is a contravention of the open-textured s 184 of the Corporations Act 2001 (Cth), “Good faith, use of position and use of information”.
(Most citations omitted.)
The relevant principles were also helpfully summarised by Abraham J in Australian Broadcasting Corporation v Kane (No 2) (2020) 377 ALR 711; [2020] FCA 133 (Kane (No 2)) at 730-2 [75]-[81] (decided prior to Smethurst) and in Hartley v Commissioner of Australian Federal Police [2023] FCA 368 (Hartley) at [15]-[23] (taking into account what was said in Smethurst). The latter decision was affirmed by the Full Court of the Federal Court in Hartley v Commissioner of Australian Federal Police [2023] FCAFC 197.
I acknowledge that the assessment must necessarily be case specific, and the precision required in a warrant will vary from case to case: Kane (No 2) at 740 [124]. In particular, the precision required will vary according to the nature of the offence or offences to which the warrant relates: Smethurst at 201-2 [30] (Kiefel CJ, Bell and Keane JJ), 261-2 [209]-[210] (Edelman J).
Nevertheless, the extended analysis of the particular warrants under consideration in Caratti v Commissioner of Australian Federal Police (No 2) [2016] FCA 1132 (Caratti (No 2)) provides some practical guidance as to the application of the test. In that case, Wigney J articulated the test as being “whether, viewed broadly and not perversely or with undue technicality, the general nature of the offences is sufficiently disclosed so as to indicate the authorised area of search”: at [131]. His Honour applied that standard to the descriptions of several different offences.
In relation to the first offence identified in the warrants considered in Caratti (No 2), Wigney J identified a number of problems with the description of the offence (at [123]-[130]) but held that, although the offence was poorly described and the description did not perfectly reflect the statutory elements of the offence, when read fairly and without overzealous technicality, the description “was sufficient to enable an occupier to discern a search perimeter relevant to the offence” (at [133]). His Honour referred to the following features of the description of the offence as demonstrating that that standard was met:
The description of the offence identified the accused (Mr Caratti), the relevant offence provision (s 134.2(1) of the Criminal Code), the date (or date range) that the offence was alleged to be committed (2008) and the gist of the conduct said to constitute the offence (that the offence involved the dishonest non-payment of an amount of income tax by Starbrake resulting or arising from a deceptive reclassification by Mr Caratti of royalty income received by Starbrake).
Similarly, Wigney J concluded that the description of the second offence identified in the warrants considered in Caratti (No 2) was legally adequate, even though it was poorly drafted and did not accurately reflect the elements of the alleged offence. Some of the reasons for that conclusion which have relevance to the present case are apparent from the following passage (at [140]):
[W]hile the second Starbrake offence was poorly drafted and lacked the clarity and particularity that would be necessary if it was to be included in an indictment, read fairly and in context, and without overzealous technicality, it was adequate to define an area of search relevant to the offence. It identified the accused (Mr Caratti), the relevant offence provision (s 135.1(3) of the Criminal Code), the date the offence was allegedly committed (2008) and the basic factual allegation: relevantly, that with the dishonest intention of causing loss to the ATO, Mr Caratti failed to pass on to the ATO GST that was properly payable by Starbrake.
In relation to the third offence identified in the warrants considered in Caratti (No 2), the description of the offence referred to the applicant having “falsified costs”. One of the complaints made was that the description did not contain any particulars of the costs that were falsified. Justice Wigney rejected that argument, holding (at [145]) that “the gist or substance of the key factual allegations that underlay the offence were sufficiently apparent to identify the object or area of the search”. In relation to the fourth and fifth offences identified in the warrants considered in Caratti (No 2), Wigney J’s reasons (at [152]-[153], [158]-[159], [161]-[162]) make clear that, although the warrants were not invalid, the level of particularity in the descriptions of the offences was very close to the borderline of what would suffice to satisfy the requirement that the warrants define a meaningful or intelligible search perimeter.
An appeal to the Full Court against the decision of Wigney J in Caratti (No 2) was dismissed: Caratti v Commissioner of Australian Federal Police (2017) 257 FCR 166; [2017] FCAFC 177 (Caratti FCAFC).
An example of a case in which a warrant was held invalid for want of specificity in the description of the offence is Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151. In that case, Lockhart J held (at 154) that the description, “the commission of offences against Section 70 of the Crimes Act 1914, a law of the Commonwealth”, failed adequately to specify the particular offence or offences alleged. Section 70 of the Crimes Act contained two subsections, each creating an offence that could be committed in multiple different ways. The warrant did not identify, in any way, the nature of the conduct constituting the offence. This was an example of a statutory provision that “provide[d] for the commission of a somewhat indeterminate number of offences”: cf Smethurst at 202 [30].
Analysis of the structure and content of the conditions in the search warrants
The structure of each of the two warrants under consideration in the present case was similar to that described by Edelman J in Smethurst at 262 [213] as “containing three overlapping but cumulatively necessary conditions”; see also at 194-5 [5]-[8] (Kiefel CJ, Bell and Keane JJ).
This kind of warrant was described by Wigney J in Caratti (No 2) in the following terms (at [46]):
A three condition warrant is a warrant drafted in such a way that the “evidential material” to be searched for and seized is defined by way of three conditions, each of which must be met. The first condition is usually that the evidential material comprises “things” which are items of a particular description, such as a type of document or other item, such as a computer, mobile phone or hard-drive. The second condition is ordinarily that the “things” relate to particular persons or companies. The third and perhaps most important condition is that there are reasonable grounds for suspecting that the “things” will afford evidence as to the commission of particular offences specified in the warrant.
“Three condition” warrants in essentially the same form have been in use for more than three decades: see, eg, Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 (Beneficial Finance) at 529-30; Dunesky v Elder (1994) 54 FCR 540 at 556; Caratti (No 2) at [240].
The structure of “three condition” warrants is logically sound, but it can make them difficult to construe and understand, especially for people who are not accustomed to reading complex legal instruments. The provisions of the Crimes Act add a further layer of complexity for a person trying to understand the effect of such warrants because, while a warrant only authorises a search for evidential material that meets all three of the stated conditions, it also authorises the seizure of additional evidential material that may be found at the premises in the course of the search: Crimes Act, s 3F(1)(d).
The two warrants executed in this case undoubtedly required intellectual effort to interpret. However, they were not unintelligible.
Properly understood, the three conditions in each of the warrants were cumulative in the sense that, for evidential material to be within the object of the search authorised by the warrant, it must meet at least one of the descriptions under each of the three conditions. Each of the conditions imposed an identifiable limit on the object of the search that intersected with the limits imposed by the other two conditions to define the class of evidential material which could be searched for.
The effect of the first condition was to limit the objects of the search to particular kinds of “things”. It is evident that the categories of things were broad. The breadth of the categories reflects the wide range of ways in which information, and particularly information relating to a person’s income and financial affairs, may be stored. The way the categories were described was made more complex by the fact that three of the first four dot-points identified kinds of devices on which information could be stored, while the last twelve dot-points identified particular kinds of records that could be located on devices. Nevertheless, the categories as described are not inherently vague or uncertain.
If the first condition, by itself, had constituted the full description of the objects of the search, so that there was no requirement that the things have any connection with particular entities or with the suspected commission of a particular offence, then there would be evident force in the proposition that the warrant was a “general warrant” in the sense discussed in Smethurst. But the first condition did not stand alone; the class of things which could be searched for was further limited by each of the second and third conditions. The first condition must be read together with the other two conditions, and when so read it is not impermissibly wide or oppressive: Caratti (No 2) at [52].
The effect of the second condition was to limit the objects of the search to things of the kind described in the first condition which “related to” any one or more of the persons, email addresses or numbers listed in the second condition. Several of the items listed in the second condition are just variations on Ms Hampton’s name. While the number of items is obviously not itself determinative, I note that there are considerably fewer items listed in the second condition in these warrants than was the case in relation to the warrants the validity of which has been upheld in other cases: see, eg, Beneficial Finance at 529; Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301 at 186 [28]; Caratti (No 2) at [51].
The effect of the third condition was to further limit the objects of the search to things in respect of which there were “reasonable grounds for suspecting that they will afford evidence as to the commission of” the offence specified in the third condition. The breadth of the first and second conditions was such that it was the third condition that did “most of the work in terms of properly defining and confining the scope of the search and seizure pursuant to the warrant”: Caratti (No 2) at [54], [67], [244]; Hartley at [14]. Attention must therefore be given to the description of the offence in the third condition.
Sufficiency of the description of the offence to which the warrants related
Section 135.1(5) of the Criminal Code is a provision that creates an offence that may be committed in different ways involving a wide potential range of types of conduct. Accordingly, the principles explained in Smethurst establish that a mere general reference to s 135.1(5) on the face of a warrant, or a bare repetition of the terms of the section as a description of the offence, would be insufficient to identify an offence with sufficient specificity to serve the purposes of a search warrant under Part IAA of the Crimes Act. However, the warrants under consideration in this case did not merely contain a generic reference to s 135.1(5) or a repetition of the words of the section.
In addition to identifying Ms Hampton as the suspected offender and s 135.1(5) of the Criminal Code as the provision creating the relevant offence, the statement of the offence in the third condition in each of the warrants in this case identified:
(a)the range of dates between which the offending conduct was alleged or suspected to have been committed;
(b)the fault element of dishonesty that is essential to the offence created by s 135.1(5);
(c)which of the two alternative physical “result of conduct” elements in s 135.1(5) was alleged (ie, causing a loss, or causing a risk of loss);
(d)the manner in which the loss was alleged to have been caused, namely, “by not declaring an accurate income thereby receiving payments for Parenting Payment Single and Carer Payment which [Ms Hampton] was not entitled to”;
(e)that the person to whom the loss was caused is a “Commonwealth entity”;
(f)the “Commonwealth entity” to whom the loss was said to have been caused, namely Services Australia; and
(g)which of the two alternative fault elements was alleged (ie, knowing or believing that the loss would occur, or that there was a substantial risk of the loss occurring).
The “loss” might, perhaps, have been more accurately described as constituted by the making of payments under the Social Security Act 1991 (Cth), rather than their receipt by Ms Hampton. However, when the description of the offence is read as a whole, it is clear that the relevant loss was the loss of funds resulting from the making of the payments to Ms Hampton to which she was said not to be entitled. There was no ambiguity in that regard that prevented the identification of the offence to which the warrant related. The correct offence could be identified as a matter of interpretation.
Ms Hampton submitted that the warrants did not state an offence known to the law, because they did not state “the prescribed act or omission of the accused, which [led] to the loss or damage to the Commonwealth entity” and because they did not state “the way it was suspected that the income by the accused was said to be inaccurate”. In the alternative, she submitted that, if the warrants did state an offence known to the law, they failed to do so with sufficient particularity. The submissions advanced by Ms Hampton were in some respects similar to the submission advanced by the applicant in Caratti (No 2) (recorded at [135]), that the description of the first offence lacked sufficient particularity because it did not describe the transaction which led to the alleged collection of GST that should have been passed on to the Australian Taxation Office.
In connection with these submissions, in her written submissions Ms Hampton referred to two authorities, R v Hayman [2003] NSWCCA 138 and Sanchet v Director of Public Prosecutions [2006] NSWCCA 14. Neither of those cases was concerned with the question of the validity of a search warrant. Both were appeals against sentences imposed for offences including offences against s 135.1(5) of the Criminal Code. In the reasons of the New South Wales Court of Criminal Appeal in each case, a description was given of the particular acts or omissions in which the offenders had engaged, which amounted to the commission of the elements of the offence. Neither case provides any guidance as to the level of specificity required in describing offences for the purposes of search warrants.
I do not accept Ms Hampton’s submissions. The authorities in relation to search warrants have consistently emphasised that the degree of specificity required to identify the offence for the purposes of a search warrant is not as great as that required for a charge of a criminal offence: Smethurst at 201 [28] (Kiefel CJ, Bell and Keane JJ); Caratti (No 2) at [114], [117], [131], [136], [144]; Caratti FCAFC at 211 [112], 212-3 [117]-[118]. It has been acknowledged that one of the reasons for not insisting on that level of specificity is that “to attempt it would be irrational, bearing in mind the stage of the investigation at which a search warrant may issue”: Beneficial Finance at 533 (Burchett J), quoted in New South Wales v Corbett at 630-1 [99]; Caratti FCAFC at 181 [37].
A suspicion that a person has committed an offence of the kind created by s 135.1(5) of the Criminal Code may arise because, for example, there are grounds for believing that the person has been conducting a business of a certain kind, or receiving income from activities conducted in association with certain other persons, and a check of records kept by Services Australia suggests that information about that income or those activities has not been provided to Services Australia. Such a suspicion may arise even though the precise nature of the transactions involved, or the precise level of income, may not yet be known to the investigators. It would potentially frustrate the purpose of the issue of search warrants to require that they contain a description of particular alleged conduct, as opposed to the general nature of the conduct which is suspected to have been engaged in and to have constituted the commission of the offence. That would mean that, even where there did exist reasonable grounds for suspecting that an offence against s 135.1(5) had been committed, and that there was evidential material in relation to that offence at particular premises, a warrant could not be issued for the search of those premises if the issuing officer was unable to describe the particular conduct by which the offence was committed. That would seem to be an example of insisting on a level of specificity going beyond what is necessary to fulfil the purpose of a search warrant.
In New South Wales v Corbett, the High Court upheld the validity of a New South Wales search warrant in which the offence was described at a significantly greater level of generality. The description of the offence in the warrants in the present case is also far more specific and informative than the statement referred to by Pincus J in Beneficial Finance at 525 as an example of a wide statement of the nature of an offence which had survived attack. In Caratti (No 2) (affirmed on appeal in Caratti FCAFC) this Court upheld the validity of warrants that contained descriptions of several offences, some of which were described with a level of particularity comparable to that found in the warrants under consideration in these proceedings, and some of which were described with far less particularity.
The authorities are inconsistent with the proposition that, in order for a warrant to be valid, it must necessarily identify particular conduct that is alleged to have constituted the offence, as opposed to a general description of the kind of conduct by which the offence is alleged to have been committed. Although Smethurst emphasised the need for the description of the offence to enable the executing officer and those affected by the warrant to understand the object of the search and the limits to its scope, there was no suggestion that these earlier authorities, which applied essentially the same test, were incorrectly decided.
In my view, having regard to the standard described in the authorities referred to above, and the way that standard has previously been understood and applied, the description of the offence which appeared in each of the warrants was relatively specific and adequately identified the nature of the offence in a manner that allowed a reader of the warrant to identify the general nature of the criminal conduct alleged; that is, “the basic factual allegation”: Caratti (No 2) at [140]. The manner in which the offence was alleged to have been committed was stated with sufficient clarity to enable a person in the position of Ms Hampton to understand the basis for the search. The description of the offence provided reasonable guidance sufficient to enable those executing the warrants to decide whether particular things found in the course of the search were within the scope of the warrants.
Ms Hampton submitted that the search warrants did not state the nature or source of the income that it was suspected she had earned but about which Centrelink had not been informed. Ms Hampton submitted that she had later learned that the suspected offence related to the receipt of income from a website featuring content provided by Ms Hampton, but that the warrants did not make any reference to a “website” or “content”. This left her unable to identify, from the face of the warrants, the particular income that was the subject of the suspected offence. Ms Hampton submitted that even a reference to income from a “website” or “content” would have sufficed to define the limits of the search, while not confining the search too narrowly.
It is true that the search warrants did not state the precise nature or source of the income to which they referred but, having regard to the established principles, and the way they have been applied in the authorities to which I have referred, I do not consider that the validity of the warrants depended upon them doing so.
I also note that the second condition in each of the warrants did in fact identify, as the second item in the list, the name of a business that operated a particular website or online platform bearing the same name as the business. Ms Hampton accepted that it was a company that operated a website but submitted, “They do more than that though. No. It’s a big company … They operate on many, many limbs.” While the scope of the search was not necessarily limited to income from that company or a website operated by it (because the objects of the search only had to “relate to” at least one of the items in the second condition, not all of them), that reference, when read together with the description of the offence in the third condition, was capable of providing some indication of at least one possible source of income that it was suspected Ms Hampton had received. But, as I have said, I do not think the capacity to draw that link by inference was necessary to the validity of the warrants.
Ms Hampton also pointed to the fact that the date range used to describe the offence in the warrants covered a substantial period of time; some 17 months. The length of the period chosen to describe the offence does not itself lead to the conclusion that the offence was too broadly described, such that the warrants were invalid on the ground that they failed adequately to define the area of search. Even descriptions of offences found in indictments are frequently described as occurring within a range of dates; sometimes a very wide range of dates. In an indictment, the function of particulars as to dates is “to provide fairness to [the defendant], not to define the elements of the offence”: Ayles v The Queen (2008) 232 CLR 410; [2008] HCA 6 at 414 [7] (Gleeson CJ). To insist that the offence be described by a reference to a specific date, or a date range of less than 17 months, would be to impose a requirement of particularity exceeding that which is applicable to a charge of an offence.
The date range which it is appropriate to specify in the description of an offence in a search warrant will generally depend upon the information before the issuing officer. If that information provides a sufficient basis to suspect that conduct was committed over a specified period of time, or at various points in time within an identifiable date range, then it will normally be open to the issuing officer to describe the offence as having occurred between specified dates: cf Caratti FCAFC at 213 [119]. The evidence before the Court does not establish that the date range identified in the description of the offence was not justified by the information before the Magistrate. Although the period of 17 months identified in the description of the offence in each of the search warrants was substantial, the limits of that period were stated precisely by reference to exact dates. They adequately served the purpose of framing and confining the area of the search by reference to date.
Ms Hampton pointed to the questions asked by Ms Parsons during the interview as demonstrating that the investigators already had more specific information as to the particular conduct that was suspected to constitute the commission of an offence against s 135.1(5) of the Criminal Code. She submitted that it would have been possible for the warrants to include more specific detail about the nature of the conduct, and that this would have more clearly defined the limits of the search.
I accept that the nature of the questioning in the interview does suggest that Ms Parsons, at least, had more specific information as to particular conduct that she suspected may have amounted to the commission of an offence. I am prepared to infer that much of that information was also known to Officer Moroney when he applied for the warrants. I also accept that if that additional information had been included in the description of the offence in the third condition stated in the warrants, that would have more tightly limited the objects of the search. However, a warrant is not required to include all information about the suspected offence that is known to the investigators. The identification of the particulars of the offence in a warrant involves striking a balance between the extent of the intrusion into the rights of the person whose premises are to be searched, on the one hand, and the public interest in law enforcement agencies investigating and obtaining evidential material relevant to the commission of criminal offences, on the other: Smethurst at 200 [24]-[25]; Caratti FCAFC at 176 [21]-[22].
One of the reasons why the function of issuing warrants is conferred on Magistrates (or other issuing officers) is that they are able to exercise an independent judgement about the way in which that balance should be struck, having regard to the information put before them. It should be emphasised that, even though it is common practice for those seeking a warrant to present the issuing officer with a draft warrant in the terms of the warrant that is sought, an issuing officer is not bound merely to elect between issuing a warrant in that precise form and refusing to issue a warrant at all. Among other things, a Magistrate who is asked to issue a warrant may consider, having regard to the information before them, that the description of the offence on the face of the warrant should be more specifically or narrowly stated (and the objects of the search correspondingly more confined) than that proposed by the investigator seeking the warrant.
The fact that, in a particular case, it would have been possible to issue a warrant containing a more specific description of particular conduct by which the offence was suspected to have been committed does not mean that the statement of the offence had to be that specific in order for the warrant to be valid. Providing the warrant meets the minimum legal requirements identified in Smethurst and the other authorities to which I have referred, it is within the authority of the issuing officer to determine the degree of additional detail that should be included.
Ms Hampton also relied upon certain aspects of the way the search was conducted in support of her submission that the warrants were too broad and effectively amounted to “general warrants”. In particular, she referred to her evidence that she observed officers searching through files that contained the private medical and NDIS records of her children, and reading those records, and taking photographs of personal items belonging to Ms Hampton. I understood her to submit that those records and items could not possibly provide evidence of the alleged offence and that the fact that they were searched showed that the warrants were hopelessly broad or, alternatively, so difficult to understand that those executing them could not comprehend the limits of the search. Ms Hampton also pointed to her evidence and the evidence of Ms Stephens that, after Ms Stephens arrived at Ms Hampton’s home, a search was conducted of Ms Stephens’ handbag, which she had brought with her and which contained her personal belongings, including private documents relating to Ms Stephens.
One answer to these submissions is that the breadth of the search authorised by a warrant must be determined by interpreting the terms of the warrant, not what was done by those purportedly acting pursuant to it. What was actually done in the course of the search may or may not have been authorised by the warrant, properly interpreted, but what later happened in fact cannot be relevant to the construction of the warrant or to the question of whether the conditions in the warrant were so broad that the warrant was not authorised by s 3E of the Crimes Act: Williams v Keelty at 211 [157]; Caratti (No 2) at [249]. As noted above, Ms Hampton’s grounds of judicial review in this Court were not addressed to the question of whether, assuming the warrants were validly sought, issued and executed, the seizures which occurred were authorised.
A second answer is that these submissions appear to confuse the object of the search – what the officers were authorised to search for – with the conduct of the search. The Premises Warrant clearly did not authorise those executing it or assisting in its execution to search for medical records relating to Ms Hampton’s children, but it did authorise a search of the whole of the premises, including amongst files or documents apparently relating to Ms Hampton’s children. Likewise, the Premises Warrant did not authorise a search for personal belongings of Ms Stephens, but it may have authorised a search of her personal belongings if they were on the premises. The Premises Warrant authorised officers to peruse any documents they might come across on the premises for the purpose of assessing whether those documents satisfied the second and third conditions in the warrant.
Finally, although it was not the subject of any ground of judicial review, I mention one further matter that might be thought relevant to the accuracy and adequacy of the description of the offences in the warrants. The description of the offence indicated that the “person” to whom a loss was caused was “Services Australia”, and stated that Services Australia was a “Commonwealth entity”. The Court was informed that Services Australia (in its current form) was established by the Governor-General as an Executive Agency pursuant to s 65 of the Public Service Act 1999 (Cth) by an order made on 5 December 2019, which took effect from 1 February 2020.
It might be doubted whether an Executive Agency like Services Australia is a “body” within the meaning of the Criminal Code or, at least, whether it is a body that is capable of suffering a “loss”. It is an administrative unit of a department of the Commonwealth public service that does not have a separate existence as a legal entity, distinct from the Commonwealth itself. It may be that the Commonwealth, rather than Services Australia, is the relevant “Commonwealth entity” capable of suffering a loss as a result of the making of social security payments to which the recipient was not entitled. It is unnecessary to decide whether that is so, because there is authority which establishes that the misidentification of the “Commonwealth entity” does not necessarily invalidate a search warrant: Caratti FCAFC at 186 [50]. Further, in the circumstances of this case, even if it were technically inaccurate, the reference to Services Australia would, if anything, have served to make clearer the nature of the alleged loss and the way in which it was alleged to have been caused than would a bare reference to the Commonwealth.
For these reasons, in my view, each of the warrants contained a legally adequate description of the offence to which it related.
The contention that the search permitted by the warrants exceeded what was justified by the material before the Magistrate
The second contention made by Ms Hampton in the third ground of judicial review is that the search permitted by the warrants exceeded what was justified by the material that was before the Magistrate.
Some of the basic principles governing the assessment of the sufficiency of material to justify the issue of a search warrant under s 3E of the Crimes Act were summarised by Wigney J in Caratti (No 2) at [165]-[166], by reference to the earlier judgment of this Court in Williams v Keelty. That summary included the following:
The requirement of “reasonable grounds for a suspicion” imports an objective test, though a decision concerning whether grounds are reasonable invariably involves a value or normative judgment about which there may be legitimate differences of opinion: Williams v Keelty at 213 [166]. An issuing officer’s finding that there were “reasonable grounds” for entertaining the relevant suspicion is only impeachable if the finding was one which could not lawfully be reached on the information before the issuing officer: Williams v Keelty at 213 [166], 214-215 [172].
An applicant who challenges an issuing officer’s decision to issue a warrant bears the onus of proving that the information before the issuing officer was not capable of establishing reasonable grounds for entertaining the relevant suspicion: Williams v Keelty at 225 [236]; Wong v Commissioner, Australian Federal Police [2014] FCA 443 at [4]. That is a “difficult and exacting task”: Wong at [4]. A court is not entitled to substitute its own opinion on whether there were reasonable grounds for the opinion of the issuing officer: Williams v Keelty at 213 [166]. The applicant must establish that there was an absence of “foundational facts” from which the issuing officer might entertain the relevant suspicion on reasonable grounds: Wong at [4]; Williams v Keelty at 213-215 [168]-[173].
In the present case, there is no evidence before the Court as to the particular information that was actually before the Magistrate. Ms Hampton properly recognised that that limited her capacity to advance an argument based upon the insufficiency of the information to support the issue of the warrants.
To the extent that Ms Hampton’s contention relates to the Magistrate’s satisfaction that there were reasonable grounds to suspect that there was relevant “evidential material” of the kind identified in the warrants at her home, or in the Porsche, there is nothing inherently improbable in the proposition that the Magistrate could have been so satisfied on the basis of material put before him. Each of the Premises Warrant and the Conveyance Warrant recited on its face that the Magistrate was so satisfied by evidence given on oath. The offence to which the warrants related was one which Ms Hampton herself was suspected of having committed. The premises the subject of the Premises Warrant were Ms Hampton’s own home and it was clearly on the cards that evidential material relating to the conduct of businesses by her or the earning of income by her would be found there.
The connection between Ms Hampton and the Porsche was somewhat more remote. It was used by Ms Hampton’s mother, Ms Stephens. However, as Ms Hampton acknowledged, the Porsche was registered in Ms Hampton’s name. In those circumstances, it is not implausible that there was material before the Magistrate that was capable of supporting a suspicion that evidential material belonging to Ms Hampton and relating to the suspected offence would be found in it. Indeed, the fact that the Porsche was registered in Ms Hampton’s name would likely suffice to enable a Magistrate reasonably to reach that conclusion.
In Davis FCAFC, the Full Court of this Court considered the performance by departmental officers of the task of assessing whether or not requests for the exercise of the Minister’s personal non-compellable power to grant a visa under s 351 of the Migration Act 1958 (Cth) should be brought to the Minister’s attention for consideration. The task was required to be performed by reference to guidelines issued by the Minister to officers of the Department. The function of assessing cases against the guidelines was not itself a statutory power, but it had an obvious connection to the power conferred on the Minister by s 351.
The Full Court unanimously held that a decision not to draw a particular case to the attention of the Minister was subject to judicial review on the ground of unreasonableness. The reasons of the judges constituting the Court for reaching that conclusion differed in their emphasis. Some of the particular features of the assessment function which can be seen to have contributed to that conclusion included the following:
(a)the assessment conducted by the departmental officers was incidental to, and made in furtherance of the execution of, or the consideration of the statutory discretion conferred on the Minister by s 351 of the Migration Act (at 29 [14] (Kenny J), 45-6 [80]-[81] (Griffiths J), 89 [302] (Charlesworth J));
(b)the assessment required the application by the departmental officers of judicially ascertainable standards, capable of being identified from the content of the guidelines (at 34-5 [38]-[39] (Kenny J), 90 [307] (Charlesworth J));
(c)the interception of a request for ministerial intervention in a manner that did not involve a reasonable application of the guidelines would amount to a purported exercise of the Minister’s discretion not to consider the request (at 81-2 [259]-[261], [264]-[268] (Charlesworth J; Griffiths and Besanko JJ agreeing)); and
(d)the assessment had the potential adversely to affect the legal rights or interests of the applicants in having the Minister consider their case and decide whether to grant them a visa (at 36 [43]-[44] (Kenny J), 37 [51] (Besanko J), 46-7 [84]-[85] (Griffiths J; Besanko J agreeing)).
None of the judges in Davis FCAFC based their conclusion on the broad proposition that every exercise of capacity or personal faculty by an officer of the Department was subject to review on the ground of legal unreasonableness, and none stated that the exercise of the capacity or liberty to ask questions was generally subject to review on that ground. Justice Griffiths recorded that the Solicitor-General for the Commonwealth, who appeared for the Minister, acknowledged that the Minister did not make any “general claim to the effect that it is impossible to review any exercises of non-statutory power on any grounds”, and submitted that the relevant question was “what kinds of powers and on what grounds”: Davis FCAFC at 41 [63].
The High Court allowed an appeal against the decision in Davis FCAFC on the basis that the conduct of the departmental officers was limited by the Migration Act, that s 351 conferred the power or liberty to consider a request for ministerial intervention, and that the effect of the guidelines and the assessments was that the Minister had purported to entrust the Minister’s personal power or liberty to departmental officials: Davis HCA at 227-8 [38], 231 [61] (Kiefel CJ, Gageler and Gleeson JJ), 238 [101] (Gordon J), 254 [194] (Edelman J); 273 [318] (Jagot J). It was therefore unnecessary for the majority to resolve the issue of whether the assessment of requests for ministerial intervention by officers of the Department was subject to judicial review on the ground of legal unreasonableness. Justice Steward, in dissent, held that the assessments did not involve the exercise of a power that was amenable to judicial review.
These more recent decisions may suggest a trend towards acceptance of the proposition that the exercise of non-statutory, non-prerogative powers by officers of the executive government may be subject to review on grounds that include legal unreasonableness. However, the cases in which that proposition has been accepted have involved the performance of functions bearing a close connection to the exercise (or non-exercise) of powers capable of affecting legal rights and interests. Those developments do not necessarily translate into the proposition that review on the ground of legal unreasonableness is available where what is involved is the exercise of the personal faculties of officers or employees of the executive government to make inquiries or ask questions of a member of the public. I turn now to consider the state of the law in relation to powers of those kinds.
In Clough v Leahy (1904) 2 CLR 139, after observing that “the power of inquiry is not a prerogative right”, Griffith CJ said (at 156-7):
The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them? …
We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice. That is the general principle. The liberty of another can only be interfered with according to law, but, subject to that limitation, every person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic. And it seems impossible, from this point of view, to draw a line beyond which an inquiry will be necessarily unlawful.
It is not unlawful for me to make the most impertinent inquiry into my neighbour’s affairs. It is very undesirable, but it is not unlawful. It cannot be suggested that the Crown would do such a thing, but, if it did, it would be no more unlawful for the Crown to make such an inquiry than for an individual. If I make impertinent inquiries as to my neighbour’s private affairs, I may bring down upon myself the censure of right-thinking people. If the Crown makes an inquiry into the affairs of private persons, the advisers of the Crown may incur the censure of public opinion. They may also incur the censure of Parliament. Any and every person is equally free to form an opinion as to the propriety of the inquiry, but it would be a strange thing if Courts of Justice were to assert the right to inquire into the propriety of executive action—whether it was a thing which, according to rules of action commonly received in the civilization in which we live, ought to be done. That is a question which a Court of Justice has no right to inquire into. It is for a Court of Justice to inquire whether the law has been transgressed.
(Emphasis added.)
Justices Barton and O’Connor agreed with the judgment of Griffith CJ.
Clough v Leahy was decided prior to the development of modern Australian administrative law. It was decided before it had become generally accepted that statutory powers were subject to an implied condition that they be exercised reasonably, so that the exercise of such powers was reviewable on the ground of legal unreasonableness. The proposition that “it seems impossible … to draw a line beyond which an inquiry will be necessarily unlawful” should no doubt be considered in that light. Nevertheless, that proposition is not just a general denial of the availability of judicial review on grounds such as reasonableness; it was expressly linked to recognition that the capacity or liberty of the Crown to make inquiries was of the same essential kind as, and subject to no greater legal limits than, the liberty of individuals to make inquiries. The statement of the law in Clough v Leahy, in relation to the “power of inquiry, of asking questions”, remains authoritative.
In Davis HCA, Edelman J pointed out (at 243 [133]) that the Court in Clough v Leahy had treated the liberty of the Commonwealth Executive to hold a Royal Commission of inquiry without coercive powers as a liberty in common with the liberty of a natural person to make any inquiry. “But,” his Honour said, “an inquiry takes on a different complexion when it is undertaken by the Executive rather than a natural person.” He described the assimilation of the capacity to issue a Royal Commission of inquiry and the capacity of a natural person to make inquiries as a “contrived assumption” (at 244 [134]). These passages may suggest a willingness to reconsider whether, and if so in what circumstances, the exercise of the liberty to make inquiries may be subject to legal limits that are enforceable through an application for judicial review. However, Clough v Leahy has not been overruled, and the other judges in the majority in Davis HCA did not address these issues.
The first and second respondents also relied upon the statement of Moshinsky J in Director of Consumer Affairs Victoria v The Good Guys Discount Warehouses (Australia) Pty Ltd (2016) 245 FCR 529; [2016] FCA 22 at 557 [104], that:
As a general proposition, the power of inquiry, of asking questions, is a power which every individual has, and what is lawful to an individual is also lawful to the Crown: Clough v Leahy (1904) 2 CLR 139 at 156-157; applied in Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2014) 227 FCR 1 at [273] per Middleton J (affirmed on appeal: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95).
In L v South Australia, the Full Court of the Supreme Court of South Australia considered whether certain actions of a unit of the South Australian public service, established within the Department of Education and Child Development to investigate and report on care concerns in relation to care provided by foster carers, were amenable to judicial review. Chief Justice Kourakis (with whom Parker and Doyle JJ agreed), after quoting part of the passage from the judgment of Griffith CJ in Clough v Leahy which I have set out above, said (at 206 [103]):
The Chief Justice then observed, however, that the power to compel an answer could only be found in statute. So too for the Minister through the Chief Executive and for the other officers of the Department in the instant cases. The inquiries and subsequent assessment and reports they make are simply the exercise of human faculties which are not only not denied to the executive government, but are also critical to its efficient operation. Moreover, no questioning of legal validity in effect, purpose or method is raised by the making of those enquiries. Such enquiries may be a good or poor use of resources, but the efficiency and standards of the officers of the Department and the Minister is accountable only to Parliament and, in the case of an abuse of those resources or administration, subject to investigation by ICAC or the Ombudsman.
(Citations omitted; emphasis added.)
The first two questions stated for the consideration of the Full Court of the Supreme Court in L v South Australia asked whether reports prepared by the unit were amenable to declaratory relief or to certiorari, on grounds that included unreasonableness. The Court answered those questions in the negative on the ground that the reports were not made in the exercise of any statutory or prerogative power or function and did not affect any legal right, power, privilege or interest of the plaintiffs. Rather, the reports were, the Court held, “the product of the exercise of the personal faculties of public servants albeit performed in the course of their employment as officers of the Department”: L v South Australia at 184 [6]. As I read L v South Australia, it was these features of the function of making the reports, and of the inquiries and investigations that informed them, that led the Full Court to conclude that they were not amenable to declaratory or other relief on grounds that included legal unreasonableness.
L v South Australia was a decision about state executive power. However, Kourakis CJ was interpreting and applying principles articulated in Clough v Leahy, which concerned the executive government of the Commonwealth, and there is nothing in his Honour’s reasons that suggests any intention to draw a distinction between the principles applicable to Commonwealth and state executive power.
Nature of the capacity or liberty to decide to conduct an interview
It may be that the terminology of “capacities of the Crown” is not especially helpful when the issue that is raised concerns the lawfulness of conduct by an individual officer or employee of the Commonwealth which itself has no immediate legal consequence. Stated more directly, the issue that arises in relation to this aspect of the case is whether the concept of legal unreasonableness operates as a limit on the lawfulness of the exercise by an individual of their personal faculty of asking questions, by reason of the fact that the exercise of those faculties takes place in the course of performing their duties as an employee or officer of the Commonwealth, or in pursuit of the public purposes of the Commonwealth. More particularly, in the present case, the question is whether the legal authority of Ms Parsons, first to hand-deliver a letter to Ms Hampton, and secondly to decide to proceed to conduct an interview with her by asking her questions, was confined by reference to the concept of legal unreasonableness.
The decision to conduct an interview with Ms Hampton was not an exercise of “power” in the sense of a decision that effected a change in legal relations. Nor was the decision to hand-deliver the letter requesting an interview to Ms Hampton on the morning of the search. Nor did the actual conduct of the interview, which involved Ms Parsons (and occasionally Mr Otte) asking questions of and eliciting answers from Ms Hampton, constitute an exercise of power in that sense. Whether described as the exercise of a “capacity” or a “liberty”, the conduct of the interview simply involved, in the language used by Kourakis CJ in L v South Australia, the exercise of the “human faculties” of the investigators.
By this I certainly do not mean to suggest that the interview conducted by Ms Parsons was no different in a practical sense from a conversation between private individuals. Ms Parsons was undoubtedly acting in her official capacity as an employee of Services Australia and in pursuit of the public ends of the Commonwealth. The interview was explicitly identified in the letter as being directed to informing a potential decision to be made by the Commonwealth Director of Public Prosecutions as to whether Ms Hampton should be charged with a criminal offence.
There is no doubt the conduct of persons “hits different” when they are acting in an official capacity, especially if their actions relate to the investigation of criminal conduct: cf Davis HCA at 243 [132] (Edelman J), citing L Zines, “The inherent executive power of the Commonwealth” (2005) 16 Public Law Review 279 at 283-4; GG Winterton, Parliament, the Executive and the Governor-General (Melbourne University Press, 1983); JG Allen, Non-Statutory Executive Powers and Judicial Review (Cambridge University Press, 2022), p 43. I accept that members of the public will commonly respond differently to questions asked by a government investigator, acting in an official capacity, than to questions from another ordinary member of the public. Some members of the public may also feel a sense of pressure or obligation to participate in an official interview, even if there is no legal obligation to do so. I accept that Ms Hampton was conscious of the official nature of the interview in which she was invited to participate, and I accept that the interview would have seemed to her to be quite different from a conversation with any ordinary person.
However, the issue is not whether the exercise of the personal faculties of an official to ask questions in the circumstances of a particular case can be said to be similar or different from a conversation between private individuals. It is whether there is a relevant limit on the exercise of those personal faculties with the consequence that their exercise in particular circumstances, or in a particular way, is unlawful.
The authorities to which I have referred above – and in particular the italicised portions of the passages quoted from Clough v Leahy and L v South Australia – do not suggest that the question of whether there are legal limits on an official’s exercise of the capacity to ask questions depends upon whether it occurs in a formal setting or in pursuit of an investigative function. The issue was discussed in Clough v Leahy in the context of an official inquiry relating to possible criminal conduct, and in L v South Australia in the context of making inquiries for the purposes of preparing a report recording findings about the conduct of foster parents for the consideration of the Chief Executive of a department. In describing the “capacity” of the executive government to ask questions by reference to “what is lawful to an individual”, the Courts in those cases were not drawing a distinction between conversations that might occur between individuals and consensual conversations in which the circumstances or the official role of the investigator may influence a person’s willingness to participate or the answers they might provide.
Clough v Leahy and L v South Australia appear to me to support the view that, at least as a general proposition, where what is involved is the exercise of a capacity or liberty to make inquiries or ask questions, the concept of legal unreasonableness does not apply as a limit on the legal authority of officers or employees of the executive to exercise their human faculties in that way in pursuit of the interests of the executive. As the law currently stands, the decision to invite Ms Hampton to participate in an interview and the decision to proceed with the interview by commencing and continuing to ask her questions are not reviewable on the ground of legal unreasonableness.
In any event, for the reasons explained at [180]-[201] below, even assuming that the standard of legal unreasonableness did apply, neither of those decisions should be characterised as legally unreasonable.
The concept of legal unreasonableness
I have briefly outlined the principles relating to legal unreasonableness as they relate to the exercise of powers granted by statute at [101]-[105] above. The fact that the capacity or liberty to ask questions is not granted by statute means that there are conceptual difficulties with the usual explanation of legal unreasonableness as a limitation which is implied or presumed as a matter of statutory construction, and with the proposition that the limits of reasonableness in relation to a particular power are ultimately to be determined as a matter of statutory construction: see generally the discussion in AR Sapienza, Judicial Review of Non-Statutory Executive Action (Federation Press, 2020) at 156-60. Nevertheless, the core concept of unreasonableness as concerned with (at least) requiring rationality and intelligible justification for decisions is capable of application to the exercise of the personal capacities or liberties of officers of the executive. For the purpose of considering Ms Hampton’s submissions regarding the decisions in relation to the interview, I shall assume the application of a concept of legal unreasonableness in relation to “outcome”, of the general kind articulated in Li at 367 [76], without resolving large questions about the source or precise boundaries of the concept.
Application of the legal unreasonableness standard to the decisions regarding the interview
There were evident and intelligible justifications for Ms Parsons’ decision to conduct an interview with Ms Hampton. As the letter that Ms Parsons handed to Ms Hampton made clear, members of the Fraud Investigation Branch of Services Australia had formed a preliminary view that there were reasonable grounds for believing that Ms Hampton had knowingly failed to advise Services Australia of changes in her circumstances, and that she had done so with a view to obtaining a payment to which she was not entitled.
As the letter indicated, one purpose of conducting the interview was to provide Ms Hampton with an opportunity to respond to those allegations. That was a rational and intelligible reason for conducting an interview with her. Ms Hampton was a person who was likely to have information relevant to the allegations. It was on the cards that interviewing her would result in the investigators receiving further information that might either support or undermine the investigators’ preliminary view.
Moreover, a Magistrate had recently determined that he was satisfied, by evidence on oath presented to him, that there were reasonable grounds for suspecting that evidential material to be found at Ms Hampton’s house would afford evidence as to the commission of an offence by Ms Hampton against s 135.1(5) of the Criminal Code. In those circumstances, it could hardly be unreasonable for Ms Parsons to ask Ms Hampton whether she was prepared to participate in an interview about a possible offence or offences of that kind, or to ask her questions the answers to which might afford evidence, one way or the other, about Ms Hampton’s income and her communication with Centrelink. There was no evidence to suggest that there had been – or that Ms Parsons was aware of – any significant change in circumstances since the issue of the search warrants which would undermine the basis for the suspicion that had led to the issue of the warrant.
In identifying the justification for conducting the interview in this way, I do not mean to imply that the lawfulness of the exercise of Ms Parsons’ capacity or liberty to conduct an interview or ask questions was conditioned upon her holding any particular state of mind, such as a reasonable suspicion that a criminal offence had been committed; merely that the circumstances known to Ms Parsons in the present case provided an evident and intelligible justification for the decision to interview Ms Hampton.
Nor were the circumstances in which the interview occurred such as to make it unreasonable for Ms Parsons to proceed with the interview. The occasion of the search presented a convenient opportunity to conduct an interview when Ms Parsons and Ms Hampton were present at the same location. Ms Hampton had repeatedly confirmed that she was prepared to be interviewed at that time. She confirmed that she understood that she was under no obligation to participate in the interview.
While it is true that Ms Hampton referred to the fact that she was on medication, and had taken certain medications that morning, she also made it clear that they were medications that she took every day, and had been taking for years. Ms Hampton also expressly informed Ms Parsons that she was not so affected by her medication that she considered that she was unable to proceed with the interview.
Ms Hampton relied upon the following passages in the transcript of the interview as demonstrating that Ms Parsons’ decision to proceed with the interview was unreasonable:
Ms Parsons:… I totally understand why you’re on it. And I guess where I am going is, um do you feel fit to conduct this interview?
Ms Hampton: Yeah, its – look, if I feel --
Ms Parsons:You know, are you under the influence of --
Ms Hampton: No, no. I’m fine. Like, I should be fine. I’ll be right. Yeah.
Ms Parsons:Yeah. Okay. If at any point you feel that you’re not, just let me know.
Ms Hampton: Yeah, that’s – that’s what I mean, I – that’s why I cautioned you earlier. I said, look, I’ll do my best.
In my view, Ms Parsons’ approach was not unreasonable. On the contrary, she displayed empathy for Ms Hampton and repeatedly expressed a willingness to stop the interview at any time. Having been made aware that Ms Hampton had taken medication that morning, Ms Parsons made appropriate inquiries as to how it was affecting her, and Ms Hampton’s responses provided an evident and intelligible basis for Ms Parsons to conclude that it was appropriate to proceed with the interview if and for so long as Ms Hampton remained willing to do so.
Ms Hampton’s evidence was to the effect that she found the search and the interview traumatic. I accept that she was experiencing a high level of stress. I also accept that her personal circumstances, including the close proximity of the search to the anniversary of the death of her children’s father, the presence of her children at the home when the search began, and the medical conditions with which she was living likely contributed to her heightened stress. I accept that Ms Hampton believes that the conduct of the interview on the same morning and at the same place as the search, at her own home, made it more stressful for her.
However, there were countervailing considerations as well. Had the interview been conducted on a separate occasion, after the search had been conducted, Ms Hampton would have been exposed to two distinct stressful episodes rather than one, and might have suffered additional stress due to the anticipation of an upcoming interview. The conduct of an interview at a place with which Ms Hampton was unfamiliar might also have caused her greater stress. Moreover, considerations of Ms Hampton’s wellbeing were not the only considerations that could properly bear on the decision whether to proceed with the interview: Ms Parsons was entitled to take into account the object of gathering evidence and information about Ms Hampton’s actions and the suspected offence she was investigating, and to make a judgement about how that could be done most effectively and efficiently. It was not unreasonable for Ms Parsons to propose to proceed with the interview, particularly since Ms Hampton had expressed a willingness to proceed.
It is apparent from the transcript of the interview that Ms Hampton generally had a good understanding of the questions she was being asked throughout the interview. She was able to respond sensibly and often helpfully to the questions. Near the beginning of the interview, she expressly stated, in response to a direct question, that she understood the nature of the allegation “that from the 20 May 2021 to today, you have been claiming payments from Centrelink without disclosing your true circumstance”.
Ms Hampton submitted that it was unreasonable and an abuse of power for Ms Parsons to seek to interview her only after the two search warrants had been executed and only after a search of her home had been underway for some time. I do not accept this submission. Investigators are not required to deploy the investigative tools at their disposal in any particular order, and there were obvious intelligible reasons why they might decide to defer the conduct of an interview until after search warrants had been obtained and executed, rather than providing Ms Hampton with advance notice of the investigation.
In her written submissions, Ms Hampton was also critical of the order in which the questions were asked in the interview. In particular, she contended that it was improper for Ms Parsons to state the nature of the allegation against her in general terms and to ask whether Ms Hampton understood the allegation before asking her whether she would like to have a friend or legal representative present. I do not accept that that criticism is valid. It was reasonable for Ms Parsons to ensure that Ms Hampton understood the general nature of the allegation at the outset so that she could make an informed decision about those matters. Nothing said by Ms Parsons suggested that Ms Hampton was required to respond to the allegation before she was informed of her rights, and Ms Hampton did not in fact do so.
While it may be accepted that there were present some circumstances which could rationally have led Ms Parsons to decide not to interview Ms Hampton at the time and place that she did, those considerations were clearly not such as to make the decision to interview her at that time and place legally unreasonable, and there were rational countervailing considerations.
In her affidavit affirmed on 23 May 2024, Ms Hampton deposed to the fact that she:
like any normal person, was under the impression that [she] did not have a choice and, to avoid any further traumatic events being implicated for her family, undertaking the interview with the officers straight away was the only choice.
I accept that Ms Hampton may have felt a degree of pressure to participate in the interview, including because she thought it would provide a means for her to better understand the allegations against her, and possibly also because she thought it may provide an opportunity for her to explain the true position from her perspective. The fact that her home was being searched no doubt served to bring home to Ms Hampton the seriousness with which the allegations were regarded by the investigators, and likely added to the pressure she felt.
I also accept Ms Hampton’s uncontradicted evidence that, before the interview began, Ms Parsons told her that she had flown from Sydney in order to conduct the interview, and that Ms Parsons’ preference was to conduct the interview immediately at Ms Hampton’s home. I accept that those comments subjectively added a further layer of pressure, in that Ms Hampton may well have felt that she would create inconvenience if she declined to be interviewed on 20 September 2023 but then later accepted the invitation to participate in an interview.
I note that the question of the lawfulness of Ms Parsons’ conduct is not the same as the question, which could potentially be raised in a criminal trial, as to whether answers given by Ms Hampton were “involuntary” in the sense relevant to the exclusion of confessional evidence: McDermott v The King (1948) 76 CLR 501. Judicial review proceedings are not the proper forum to determine issues of that kind.
I do not accept that Ms Hampton believed she “did not have a choice” in any sense that could be potentially relevant to the lawfulness of Ms Parsons’ conduct. That is, while I accept that Ms Hampton may have felt at the time that participating in the interview was the best course available to her, such that she was compelled by her own reasoning or feelings to participate in the interview and answer questions, I do not accept that she was under any misconception as to her legal right to decline to participate in the interview.
The terms of the letter (set out at [21] and [22] above) made it clear that Ms Hampton was not required to participate and Ms Parsons explained that to her in clear terms at the beginning of the interview. Ms Hampton demonstrated by her answers that she understood her legal position. Ms Hampton also unambiguously agreed at the end of the interview that the answers she had given had been made of her own free will and not as the result of duress. I do not accept that Ms Hampton’s decision to participate in the interview can be characterised as anything other than voluntary.
In any event, the reasonableness of Ms Parsons’ conduct must be assessed objectively. I find that Ms Parsons must have believed, on reasonable grounds, that Ms Hampton had voluntarily agreed to participate in the interview and understood that she could stop the interview at any time. It was reasonable for Ms Parsons to make inquiries early in the interview to establish that Ms Hampton understood her rights in that respect and it was reasonable for her to accept Ms Hampton’s answers at face value. There is nothing in the evidence before the Court to suggest that Ms Parsons knew or ought to have known that Ms Hampton had been, or felt that she had been, coerced into answering questions. Ms Parsons’ decision to proceed with the interview was not legally unreasonable for that reason. That conclusion is reinforced by Ms Hampton’s own acknowledgment at the conclusion of the interview that she had been subjected to no threat, promise or inducement to answer the questions (set out at [27] above).
The decision of Ms Parsons to invite Ms Hampton to participate in an interview, and to do so at Ms Hampton’s home on the morning of search, was not legally unreasonable.
Further, I do not consider that the decisions relating to the interview can properly be characterised as involving any “abuse of power”. Ms Hampton submitted that the Magistrate would not have issued the warrants had he appreciated that Ms Parsons would attempt to use the occasion of the search to request and conduct an interview with Ms Hampton in her own home. But the possible use of other powers or capacities available to investigators at or around the time of the search was not a matter to which the Magistrate was bound to have regard. If Ms Parsons was lawfully at the premises, and was otherwise legally authorised to invite Ms Hampton to participate in an interview and (once she agreed) to conduct an interview, the question of whether that conduct was lawful is not dependent on whether the Magistrate foresaw or intended that that should occur.
The second amended originating application for judicial review also asserts that the decision to conduct a formal interview on the day of the execution of the search warrants was invalid on the grounds of a breach of the rules of natural justice and failing to take relevant considerations into account. These contentions were not developed by Ms Hampton in her oral submissions. Both face insuperable difficulties.
As to the allegation of a denial of natural justice, the decision of Ms Parsons to invite Ms Hampton to participate in an interview was not a decision to which the rules of natural justice or procedural fairness applied. The decision involved no exercise of a power conferred by statute, and no other source of any obligation to afford natural justice in connection with it was identified. The decision did not itself affect any relevant right or interest of Ms Hampton: cf Annetts v McCann (1990) 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ); Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575; [2023] HCA 22 at 584 [33] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). In any case, it is difficult to understand what the content of a requirement to afford natural justice would be in relation to a decision to propose an interview by hand-delivering a letter which itself made clear that Ms Hampton was being invited, but was not required, to participate in an interview.
As to the allegation of failing to take relevant considerations into account, the identification of any relevant considerations, in the sense of considerations which a decision-maker is required by law to take into account, is ordinarily to be determined as a matter of statutory construction: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). Again, the decision in question involved no exercise of any statutory power, and no other source of any mandatory consideration was identified. Further, Ms Parsons was not required to provide reasons for her decision to invite Ms Hampton to participate in an interview, and it is not possible to know what considerations Ms Parsons in fact took into account.
There is no support in the evidence for any allegation of bad faith against Ms Parsons. Appropriately, no allegation of “bad faith” was pursued by Ms Hampton in oral submissions.
For these reasons, I reject Ms Hampton’s arguments regarding grounds 6 and 7.
RELIEF
In her second amended originating application for judicial review, Ms Hampton seeks various forms of relief including (but not limited to) a writ of certiorari to quash the search warrants; various declarations as to the unlawfulness of particular conduct by Officer Moroney and Ms Parsons; and various injunctions to reverse the consequences of the torts of trespass to goods and conversion that were said to have been committed by the seizure of Ms Hampton’s property and the creation of copies, including by requiring the destruction of seized material.
Given the conclusions I have reached about the validity of the decisions relating to the issue and execution of the search warrants and the conduct of the interview, it is unnecessary to consider in detail what relief might have been appropriate had Ms Hampton established that the warrant was invalid or that particular aspects of the conduct of Officer Moroney or Ms Parsons were unlawful.
However, I make the following brief observations.
First, had Ms Hampton established that the search warrants (or the decisions of the Magistrate to issue the warrants) were invalid, it would have been appropriate to make an order in the nature of certiorari quashing the invalid warrant or warrants: Smethurst at 206 [45].
Secondly, if the search warrants were invalid, it would follow that the entry into Ms Hampton’s home and the search of her home were not authorised by s 3F(1) of the Crimes Act. However, the reasoning and conclusions of the majority in Smethurst suggest that it is doubtful whether it would have been appropriate to grant any of the injunctions sought by Ms Hampton.
Thirdly, it is doubtful whether the Court would have the power to quash the decisions made by Ms Parsons in relation to the conduct of the interview, whether by an order made pursuant to the ADJR Act or by a writ of certiorari.
As to the ADJR Act, in order for a decision to be reviewable under ss 5 or 6 of the ADJR Act it must be a decision “made under an enactment”, or conduct relating to such a decision. That is, the decision must itself confer, alter or otherwise affect legal rights or obligations, and the decision must derive its legal force from an enactment: cf Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7. Ms Hampton did not identify any statutory provision which provided the authority for employees of Services Australia to request that a person participate in an interview, or to conduct an interview with a person who, having received such a request, agreed to participate in an interview: see [143]-[150] above.
As to certiorari, the function of a writ of certiorari is “to quash the legal effect or the legal consequences of the decision or order under review”: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580; see also Hot Holdings v Creasy (1996) 185 CLR 149 at 159. A decision to request an interview with a person does not affect directly the legal position of the person who is the subject of the request. The making of such a request does not itself have any immediate legal consequence. Similarly, the conduct of the interview with Ms Hampton – that is, the asking of questions and the recording of the questions and her answers – did not have any relevant legal consequence and did not itself affect Ms Hampton’s legal position. In those circumstances, it appears to me that certiorari would not issue to quash the legal effect of either of the challenged decisions relating to the interview.
It is unnecessary to consider whether any declaratory or other relief might have been appropriate had I found that either of the decisions relating to the interview was legally unreasonable.
CONCLUSION
The application for judicial review is dismissed.
I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald. Associate:
Dated: 18 September 2024
0