Jacobsen & Anor v Rogers

[1994] HCATrans 278

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P32 of 1993

B e t w e e n -

JOHANNES JACOBSEN & TERENCE

LESTER DIBB

Appellants

and

PETER ROGERS

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

Jacobsen(2) 84 20/4/94

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 20 APRIL 1994, AT 10.28 AM

(Continued from 19/4/94)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Heenan.

MR HEENAN:  May it please Your Honours, might I respectfully

inquire of the Court whether the learned counsel

for the Commonwealth may reply on the Melbourne

Corporation point?

MASON CJ: There is no objection to that, Mr Heenan.

MR HEENAN:  Thank you, Your Honour. We have a series of

very short points in reply, Your Honours, and one
of more substance. Firstly, the learned Solicitor-

General for the State of Western Australia

submitted that as at 1914 there was no developed

doctrine of public interest immunity and,
consequently, it was unlikely that the Parliament

in 1914 when enacting the Crimes Act contemplated

that special State documents might be protected by

such a doctrine. As to that, Your Honours, we

simply observe that there was a rigorous doctrine

of State privilege, or Crown privilege, which

existed at that date.

Might we just mention, without going to the

authorities, Your Honours, the decision of the

House of Lords in Duncan v Cammell, Laird,

(1942) AC 624, which perhaps discussed that

doctrine at the heighth of its rigour; subsequently overruled by the House of Lords in Conway v Rimmer,

(1968) AC 910, which puts the doctrine in its

modern form, and which has been applied in a

consistent fashion by this Court in the

Commonwealth v Northern Land Council, 176 CLR 604,

the reference to which is in our written

submissions.

One point about that doctrine is that it would

exclude the production of sensitive documents in

curial proceedings, but might not perhaps be an

answer to the seizure of documents by a law

enforcement officer. This addresses the point

raised by the learned Solicitor-General for South

Australia that seizure of documents by a police

officer allows them, to some extent, to go out of

the supervision of the executive. As to that, Your

Honours, we make the observation that the law

enforcement officer executing a warrant under

section 10 is closely constrained in what he may do

with the information or the materials which he
possesses.

Section 60A of the Australian Federal Police Act composes very restrictive duties and obligations on the police officer in those circumstances. It is unnecessary for me to go to the details of that section, but serious offences

Jacobsen(2) 85 20/4/94

are committed if there is any misuse of the
information.

Another legislative provision to similar

effect is section 79 of the Crimes Act and, as is
contained in the written submissions of my learned
friend, Mr Rose, in his submissions in-chief, when
read with Public Service Regulation No 35, they are

an effective protection of that information. So,

in our respectful submission, Your Honours, there

is no real jeopardy for the interests of the Crown,

whether one looks at the position in 1914, or

according to contemporary standards.

BRENNAN J:  The Australian Federal Police Act does not apply

to State police, does it?

MR HEENAN:  That may be so, Your Honour.

BRENNAN J: State police can get a warrant under section 10.

MR HEENAN: That is true. In relation to these records, it

is likely that they would be clothed with

obligations under the Income Tax Assessment Act,

section 16, as to the secrecy provisions, and that

they might be deemed officers of the Taxation

Department.

BRENNAN J:  What is the provision which makes them deemed

officers?

MR HEENAN:  I am afraid I have not got the Income Tax

Assessment Act with me at the moment, Your Honour,

but there are provisions in the Income Tax

Assessment Act and the Taxation Administration Act

which affect any person who, in the course of his

duty, comes into possession or knowledge of

confidential information acquired by the Taxation

Department; an officer for the purposes of that Act

and clothed with the secrecy provisions. They

affect, for example, counsel retained on behalf of

the Federal Commissioner for Taxation and deem him
to be an officer with the same secrecy obligations,

but I acknowledge that, in relation to the Federal

Police Act, it may not apply to State officers.

There was a point made on behalf of the States

by the learned Solicitor-General for Western

Australia that the records if seized in this case may not be admissible on the ground that they were obtained under situations of confidentiality and that section 79 of the Judiciary Act may pick up section 19 of the Fisheries Act in any prosecution

and prevent their admissibility into evidence.

Without accepting those propositions, we make the observation that it has never been held that access

to documents under a search warrant is conditional

Jacobsen(2) 86 20/4/94

upon their strict admissibility in legal

proceedings.

The learned Solicitor-General for New South

Wales -

DEANE J:  But if that submission be right and section 79

catches up section 19 in relation to the alleged

conspiracy, is it not, in a context where

section 80 would presumably require that any trial

takes place in Western Australia, would not the

fact that the material could not be used in a trial

be extremely relevant if this case ultimately came

down to one of public interest immunity?

MR HEENAN:  Yes, it may, Your Honour.

DEANE J: Would it not be really almost the end of the

question?

MR HEENAN:	Your Honour, it might be the case that the material obtained by reason of a search, while not
constituting admissible evidence in itself, might disclose the existence of other evidence which
could be pursued by the authorities for use in the
prosecution.

DEANE J: But it would go beyond admissible in evidence,

would it not, in that if section 79 were applicable

it would pick up section 19 in terms of court

procedures.

MR HEENAN:	Yes.
DEANE J:	And section 19 goes to a prohibition of the use of

the information contained in the returns, which

means on all the assumptions about section 79 the

consequences would be very wide indeed.

MR HEENAN: Accepting that, Your Honour, it may nevertheless	be the case that the position postulated simply	throws up this same issue in a different guise,
namely, whether in the course of prosecuting for an
offence against some Commonwealth law, this
evidence is admissible, notwithstanding the
prohibition contained in section 19 and
notwithstanding that section 79 picks up
section 19. You may still have a section 109
conflict between section 19 on the one hand and the
statute which is authorizing the prosecution.

DEANE J:	I do not quite follow that.
MR HEENAN:	Your Honour, while accepting without necessarily

conceding that section 79 would pick up section 19

in these circumstances, one then examines the

situation which would arise during the course of a

Jacobsen(2) 87 20/4/94

trial if counsel for a federal authority

prosecuting sought to tender these documents in the

course of proceedings. He would, no doubt, be met

with the objection that section 19 renders them

inadmissible in court proceedings. The question

would be whether, notwithstanding section 19, that

prohibition was consistent with the Commonwealth

statute which authorized the prosecution. So we

would essentially have the question of the reach of

Commonwealth power vis-a-vis the States in a different guise.

DEANE J:  I understand the question you refer to. I must

confess I cannot put it in my mind in a practical

context for the purposes of this case.

MR HEENAN:  To take an extreme example, suppose there was a

prosecution under the Commonwealth Crimes Act for
treason and for some reason or other it was
necessary to adduce in evidence records of the

State Fisheries Department which were clothed with

the secrecy provisions of section 19. The point

comes where the records are called for to be

tendered and the objection is taken that section 19
clothes them with secrecy and that that provision

is picked up by section 79 of the Judiciary Act.

The question, in our respectful submission,

which the Court is left with is, notwithstanding

that section 19 is picked up in that fashion, is it

consistent with the Crimes Act which creates the

offence of treason and authorizes the prosecution?

DEANE J:  The question must surely be, does the Crimes Act

provision override section 79 of the Judiciary

Act - - -

MR HEENAN: That is putting it a different way, yes.

DEANE J:  - - - which would, I would have thought, need a

rather extraordinary Crimes Act provision.

MR HEENAN: That may be so, Your Honour. If it is, then we

are left with the position that this issue is

pertinent to the question of whether or not there

is a sufficient public interest immunity to

withhold access to the documents.

DEANE J:  Can I just ask one more question? You say you do

not concede that section 79 would pick up

section 19 in a trial in this case. Apart from the

argument as to the Crimes Act overriding section 79 of the Judiciary Act or the alternative way you put

it, I do not understand you to have advanced a

submission on that.

Jacobsen(2) 88 20/4/94

MR HEENAN: Well, I think our submission must be that it

will always be a question then of construction,

whether the offence-creating provision covers the

field to such an extent that it is inconsistent

with the State law limiting access.

DEANE J:	Thank you.
MR HEENAN:	The learned Solicitor-General for New South

Wales made the submission that section 76 of the

Crimes Act meant that any State officer, including

a senior State officer, who had the custody of

records the subject of a search warrant under

section 10, who prevented or obstructed a search by

a police officer armed with that warrant could be

charged with an offence and be subject to criminal

liability under section 76. This was submitted in

the course of a series of submissions dealing with
the presumption against federal statutes imposing

criminal liability on the Crown in the right of the

State. In our respectful submission, Your Honour,

that example does not constitute a Cain v Doyle

situation. There would be no occasion in that

situation where there was criminal liability
imposed on the Crown in the right of the State.

The offender would be the individual who obstructed

or prevented the execution of the law, who would

~ot be clothed with any defence by virtue of his

office.

Your Honours, the more substantial proposition

which we wish to make in reply addresses the issue

advanced by the learned Solicitor-General for

Western Australia in paragraph 16 of his written

outline, that considerations of comity suggest that

Commonwealth statutes ought not be regarded as

extending to the State or State instrumentalities,

and the learned solicitor developed that submission

in a variety of ways. Perhaps one expression of

the view - perhaps it is near its high water mark - is in the judgment of acting Chief Justice Gibbs in Bradken's case at page 120 and 121. The passage is

very brief. If I may just allude to it quickly.

It follows a quotation by the decision of the

United States Supreme Court in the

United States v Hoar, which was referred to in the

written submissions against us, and at page 122

His Honour Justice Gibbs said:

Exactly the same reason exists for presuming

that a statute··of the Commonwealth is not

intended to bind the Crown in right of a

State. Although, within limits that it is now

unnecessary to discuss, the Commonwealth can

legislate so as to bind a State, the States

are neither subjects of the Commonwealth nor

subordinate to it. It is a consequence of our

Jacobsen(2) 89 20/4/94

federal system that "two governments of the

Crown are established within the same

territory, neither superior to the other"

(Federal Commissioner of Taxation v Official

Liquidator of E.G. Farley Ltd, per Dixon J.)

Legislation of the Commonwealth may have a

very different effect when applied to the

government of a State from that which it has

in its application to ordinary citizens. It

seems only prudent to require that laws of the

Parliament should not be held to bind the

States when the Parliament itself has not

directed its attention to the question whether

they should do so.

That seems to be the thread which is running

through all the written submissions and oral
submissions made by the States against us and, in

our respectful submission, it is also evident in

the passage in Uther's case, (1947) 74 CLR 508,

which the learned Solicitor-General for New South

Wales presumed was the reference intended by

Justice McHugh in his observations during the

course of argument. The reference was to the

judgment of His Honour Mr Justice Dixon, who of

course was dissenting in that case. Perhaps the

passages in mind are those at pages 529 and 530.

At page 529 is the passage:

A federal system is necessarily a dual

system. In a dual political system you do not

expect to find either government legislating

for the other. But supremacy, where it

exists, belongs to the Commonwealth, not to

the States. The affirmative grant of

legislative power to the Parliament over the
subjects of bankruptcy and insolvency may
authorize the enactment of laws excluding or
reducing the priority of the Crown in right of
the States in bankruptcy and it has been held

that the taxation power extends to giving the

Commonwealth a right to be paid taxes before

the States are paid.

Then, His Honour goes on, and over the

page, 530, at the top is the passage:

The legislative power of the States is in

every material respect of an opposite
description. It is not paramount but, in case
of a conflict with a valid Federal law,

subordinate -

and the reference to subordinate in the face of a

valid Commonwealth law, of course, is consistent

with section 109, but does not fit easily with the

passage in Bradken quoted from Justice Gibbs.

Jacobsen(2) 90 20/4/94

It is not granted by the Constitution. It is not specific, but consists in the undefined residue of legislative power which remains

after full effect is given to the provisions

of the Constitution establishing the

Commonwealth and arming it with the authority

of a central government of enumerated powers.

Now, we all know, of course, that Justice Dixon's

dissenting judgment in Uther's case was

subsequently vindicated when the decision as to the
priority of the Crown debts in Uther's case was

overruled by the decision of this Court in The

Commonwealth v The Cigamatic, (1962) 108 CLR 372,

and although, when the case was overruled, its

reversal may not directly have affected those

passages in the judgment of Sir Owen Dixon -

perhaps, indeed, it gave them vindication - the
judgment of Sir Owen Dixon in Cigamatic, at

pages 377 and 378, vindicate the paramountcy of the

Commonwealth legislative power. At page 377, the

learned Chief Justice said:

There can be no doubt as to the nature or the

source of the right of the Commonwealth in an
administration of assets to be paid in
preference to subjects of the Crown if there
is a competition among debts of equal degree.

It springs from the nature of the Commonwealth

as a government of the Queen. Therefore to

treat those rights as subject to destruction

or modification or qualification by the

legislature of a State must mean that under

the Constitution there resides in a State or

States a legislative power to control legal

rights and duties between the Commonwealth and

its people.

Then there follows a discussion of Uther's case, and, at page 378, the learned Chief Justice said:

It is, I think, a question which cannot be

regarded as simply governed by the

applicability of the principles upon which

Melbourne Corporation v The Commonwealth

depended. In truth it imports a principle

which if true would apply generally with

respect to the legal rights of the

Commonwealth in relation to its subjects. I

do not speak of legal rights which are the

immediate product of federal statute and so

protected bys 109 of the Constitution. But

because it imports such a principle I think we

ought not to give effect to the view taken in

Uther's case.

Jacobsen(2) 91 20/4/94

Your Honours, in our respectful submission,

the result in Cigamatic and those principles
demonstrate that, in an appropriate case, the
legislative provisions and the prerogative rights
of the Commonwealth are paramount and this, if it

is so, renders the attitude towards a protection of

State governments or instrumentalities from the

reach of federal law, something which, with

respect, we would term an oddity.

Now, if one adopts the stance that the

executive or administrative functions of a State

should be protected from the coercive force of

Commonwealth laws, which seems to be implicit in

the approach taken by Chief Justice Black in the

case under appeal in his judgment at page 8 of the.

appeal book and by Justice Sheppard at pages 153 to

156, being the result of the comity and

co-operation between the State and the Commonwealth

which the learned Chief Justice of the Federal

Court referred to at page 10, and which is the

foundation of the submissions put by my learned

friend, the Solicitor-General for

Western Australia, one develops the approach that

federal law should not apply to the State, or State

instrumentalities in the absence of the clearest

legislative attention to the contrary. Be would

venture to suggest, with all respect, that that is

a wrong starting point.

If it truly is the position, as emerge~ from

Cigamatic, that it is part of the federal compact that the States and the Commonwealth should

co-operate in enforcing one system of laws, even

though these may stern from two or more sources,

this should mean that there will be occasions when

the States are bound by Commonwealth law. Now, if

this is so we suggest, with respect, that there

should be a readiness to accept the binding

application of Commonwealth laws on State agencies

in areas of constitutional competence, and that the

preferred starting point for analysis and

construction is to recognise this possibility.

Now, the starting point adopted by

Their Honours in the Full Federal Court and
implicit in the submissions of my learned friend,
the Solicitor-General for Western Australia, is
reminiscent of the discarded notion of the immunity

of State instrumentalities.

Now, Your Honours, finally on this point,

might we develop the observation -

BRENNAN J:  But how do you say that? I mean it is

reminiscent only in the sense of saying the way in

Jacobsen(2) 92 20/4/94

which you approach a question of construction is to

adopt a certain starting point.

MR HEENAN: Exactly, Your Honour.

BRENNAN J:  Why is that reminiscent of that which turns on a

question of power?

MR HEENAN:  Because, in our respectful submission, it shows

a predisposition to treat federal laws as not

applying to the States, and to weigh that in the

balance against such implications as might be drawn

from their purpose and implication.

BRENNAN J:  What is the error in saying there is a dual

polity and although one legislature has the power
to bind the other, the assumption is that in a dual

polity one does not seek to do so?

MR HEENAN:  Because in the end that is a forecast of the

disposition of one government or another. It may

well seek to do so.

BRENNAN J: And if it does it can express it. But absent an

expression, the presumption is the other way.

MR HEENAN:  In our respectful submission, putting the

presumption the other way is to cast the scales in

favour of a limited scope for federal power.

BRENNAN J:	I understand the way you put it.
MR HEENAN:	On this point, we suggest that the real problem

is to reconcile the paramountcy of federal

legislation, which is given by section 109, with

the need to respect certain States' values as have

been enshrined in their legislation. For example,

the secrecy provisions in section 19 is the issue

identified by Your Honour Justice Brennan earlier

in the course of argument.

In our respectful submission, that exercise is

only difficult or controversial if one perceives an

inclination to preserve the States from the effect

of the paramount federal laws. In our respectful

submission, in essence, this is what is behind the
submissions of the respondent and the various

States who have intervened in this case. The protection of State legislation and State agencies

in a federal system from the reach of federal laws
may well be a desirable factor in the
considerations of the federal system if one

considers the position to be as put by

Justice Gibbs in Bradken's case and refers to

Justice Dixon's observation in Uther.

Jacobsen(2) 93 20/4/94

But, in our respectful submission, that has

very little to do with the history, origins or

purposes of the rule of construction which exempts the Crown from the application of a statute unless

it is clearly intended to be bound. To contend

that that presumption has that effect, we suggest
with respect, is to depart altogether from the

policies which established that rule of

construction and to recognize a new and local

interest for the rule, namely, the interests of the

States in the federation where valid federal law

would otherwise have paramountcy.

As we suggested a moment ago, that inclination

is not a neutral one. It favours the States at the

expense of the Commonwealth, and the reason must be

to preserve them as far as possible from the

destructive effect of section 109. Now, in our

respectful submission, that may be a principle

which emerges from the Constitution and the

independent position of the States, but it is not a

rationale for the rule of construction examined in

the Province of Bombay or in Bropho, and if the

rule is used for that purpose then the risk is that

this rule inherited from a unitary legislative

system becomes a constitutional polemic in a

federation.

McHUGH J: But, I must say it has occurred to me from the

beginning of this case, from the first time I read

the judgments, that the real issue in this case was

not the application of Bropho so much as whether

the Commonwealth statute was intended to bind the

State Crown, and although the Full Court reasoning

throws all its weight on Bropho, it seemed to me

that that proposition which is found at page 529 in

Uther is the starting point, and that it may be

that when you read it with Bradken that it requires

a very clear implication from the federal

legislation that intends to bind the State before

you can reach that conclusion.

MR HEENAN:  Our essential submission, Your Honours, is that

as a starting point that is not a neutral position.

McHUGH J: Well, it certainly is not a neutral proposition,

because if it is a presumption, it certainly cannot

be neutral.

MR HEENAN:  Those are submissions in reply, Your Honours.

DEANE J: Before you escape, Mr Heenan, can I just try and

clear my own mind on one aspect? Can I take the

section 10 of the Crimes Act. We are obviously in

section l0(l)(b) territory here, are we not?

MR HEENAN:  Yes, Your Honour.

Jacobsen(2) 94 20/4/94

DEANE J: Well now, assuming in your favour that section 10

does bind the States, to use the phraseology that

has been used, if the section 79 argument be

corr~ct, and if "afford evidence" is evidence in

criminal proceedings - and I understand you say it

is not - but, if it is evidence in criminal
proceedings, in the context of section 80 of the

Constitution this case would fall outside l0(l)(b),

would it not?

MR HEENAN:  I am not exactly sure what Your Honour intends

to convey by the reference to section 80 of the

Constitution.

DEANE J: Well, section 80 requires that this conspiracy

trial take place in Western Australia - - -

MR HEENAN:  Yes.

DEANE J: - - - which means, if section 79 - - -

MR HEENAN:	Is picked up; section 19 gets picked up.
DEANE J:	- - - means the evidence would not be admissible

in Western Australia, section l0(l)(b) is, on that

narrow construction, inapplicable.

MR HEENAN:	We would be in a very awkward position.
McHUGH J:	I do not know that you should answer that. The

question that Justice Deane has just asked you is a
question I was going to ask you when he was asking

you questions earlier, but it occurred to me that

the words "afford evidence" has never been

interpreted to mean "afford legally admissible

evidence".

MR HEENAN: That is our position.

McHUGH J:  It is sufficient that it may lead to a train of inquiry or - - -

DEANE J:  I accepted that was the position, and I said,

"Assume, contrary to your submission, that the

narrower - - -"

MR HEENAN:	Yes, well then we are in an awkward position.
DEANE J:	- - - which obtains some support in at least one

judgment, in Baker v Campbell.

MR HEENAN:  Yes.

DEANE J: Well now, if that narrow construction of l0(l)(b)

is rejected and one reads "afford evidence" in a

wider sense of an inquiry sense or what have you,

does not a particular problem arise in this case,

Jacobsen(2) 95 20/4/94

and that is that the combined effect of section 68
and section 79 of the Judiciary Act are, on the

approach that has been put against you in relation

to section 79, that the Commonwealth recognizes and

accepts for its criminal proceedings he State laws

in relation to preservation of confidentiality in

terms of legal proceedings. Well now, if that be

so, and it involves section 79 - which is why I

keep coming back to it - does not a very particular

question arise here and that is, in the context of

what was said in Baker v Campbell, does

section l0(l)(b) apply to documents which are said

to be susceptible of privilege on public interest

immunity grounds and in respect of which the laws regulating whether they are to be privileged

in criminal proceedings? It is a long series of

questions and it may be proved to be quite

irrelevant, but it just seems to me it is possible

that, on one approach, it could prove to be

important at the end of the day.

MR HEENAN:  The initial difficulty we have - what is

obviously a real problem, Your Honour - is that it

can hardly be conceived that the draftsmen and

legislators who passed section 10 would have

expected to deal with a problem at that level of

sophistication and complexity at the point where

warrants were issued.

DEANE J: Is that so? I would have thought in 1914, the

operative working of the Judiciary Act would have

been very much in the forefront of any
parliamentary draftsman dealing with criminal

procedure.

MR HEENAN:  Undoubtedly that is so, Your Honour, but, as to

the unforeseeable and unpredictable reach of State

laws giving secrecy or other preservation to

certain State documents, that would almost

certainly have been beyond the ken of the draftsman

at the time. An approach such as that contemplated

produces a situation of extraordinary complexity

and uncertainty at the point where there is either

an application for the warrant or the execution of the warrant, and leaves a situation where there is really no prospect that problems of that

sophistication could be adequately dealt with.

DEANE J: Yes, I see the great force in that.

MR HEENAN:  So the preferable course, we would say - and I

concede, in view of the observations made by

Justice Brennan earlier in the argument in this

case, that the passages in Baker v Campbell are
against this proposition - is for serious questions

of that nature to be agitated in some kind of

Jacobsen(2) 96 20/4/94

judicial challenge to the enforcement of the

warrant upholding, if it needs to be upheld, a

public interest claim.

DEANE J:  Can I just raise one further point in relation to

this, which is relevant to the chain of reasoning.

Assume, for example, that there was a section l0AB of the Crimes Act, which said that information returned to the Western Australian Fisheries

Department will not be admissible in any criminal

proceedings under the Act. The question would then

arise whether l0(l)(b) caught up those proceedings

that this Act expressly says are not to be

admissible in any criminal proceedings. Now, the

problem is if the answer to that is that it would

not, whether the position is any different in a

situation where section 79 and section 68 of the

Judiciary Act combined to have that effect,

assuming against you that they do. That is the

question. I am not suggesting the answer.

MR HEENAN: Section l0AB of the Crimes Act, which

Your Honour postulates, in our respectful

submission, would be a very considerable

attenuation of the power granted by section 10 and,

in the approach taken by Justice Brennan, the

question would become not one of construction but

one of power, and it would receive an answer

hostile to our interests, which did not depend on a

matter of construction.

DEANE J: Thank you, Mr Heenan.

BRENNAN J: Could I ask you one further question?

MR HEENAN:	Yes, Your Honour.
BRENNAN J:	Which really takes the questions that

Justice Deane has been asking you a little further.

Looking at section l0(l)(b) and construing it

broadly, how is it that the documents to which the

search warrants relate in this case answer the

description of l0(l)(b), having regard to the
operation at the time when the warrant is issued of

section 19 of the Fisheries Act?

MR HEENAN:  Because they allow the police officers to use

the material in conjunction with other material to

identify whether there has been a non-disclosure of

income. And presumably having made that

identification, it pursues the police officers and

allows the police officers to pursue inquiries with

a narrower focus directed to individuals, who by

then have become identified, which may lead on to

other admissible evidence in support of a

prosecution.

Jacobsen(2) 97 20/4/94

BRENNAN J:  How is that consistent with section 19, which

precludes the use of any information in these

returns for any purpose of that kind? If a police

officer was given possession of these documents

MR HEENAN:  Because section 19 would not have been picked up by section 79 during the investigative process.

BRENNAN J:  I am not suggesting it does. My proposition has

got nothing to do with section 79, it is merely a

question of a construction of section lO(l)(b).

How is it that if the documents in question, if

given to a police officer voluntarily but in breach

of section 19, could not be used except in breach

of section 19, that these documents answer the

description of lO(l)(b)?

MR HEENAN:  Because section 19 is overridden in the

situation that this appeal deals with by a valid

federal law.

BRENNAN J: But it is not overridden unless the documents

answer the description in lO(l)(b).

MR HEENAN:  It depends on the point which one wishes to make

use of the documents. If the point at which they

are to be used is the point at which they are

introduced into evidence, which has been the

assumption behind many of the submissions and

answers which have been given in this case so far,

then section 79 considerations and so on apply.

Your Honour has taken it to a much earlier stage

and has asked the question whether any use can be

made of them at all. In those circumstances, we

would say that use can be made in order to lead on

to further inquiries.

Admittedly, that is not consistent with

section 19 but it is consistent with the

enforcement, or the investigation, of the offence

created by the federal law - in this case the

Taxation Administration Act - and the exercise of

the powers by the federal police officer. The

exercise of those powers towards the enforcement of

a federal law cannot be reconciled with section 19.

BRENNAN J:  I take it then that lO(l)(b) is to be construed

as "will afford evidence irrespective of any

provision of a State law"?

MR HEENAN:	Yes.
BRENNAN J:	As a matter of fact and not as a matter of law.

MR HEENAN: That is the whole implication of this provision

when read in conjunction with any substantive law

Jacobsen(2) 98 20/4/94

creating an offence and with legislation such as

the Federal Police Act imposing obligations on
federal law enforcement officers to investigate and

prosecute breaches or suspected breaches of federal

laws.

BRENNAN J: Yes.

MR HEENAN:  May it please Your Honour.

MASON CJ:  Thank you, Mr Heenan. Mr Rose.

MR ROSE:  If the Court pleases, before I turn briefly to the

Melbourne Corporation principle, I mention that I undertook yesterday to provide Your Honour

Justice Deane with any cases we might find on the question whether section 10 extended to searches of

persons on the premises, and that was in the

context of my submission that section 10 is needed for the effective search of Commonwealth premises,

contrary to what His Honour Chief Justice Black had

said. May I hand up two cases.

The first, if the Court pleases, is a decision of Chief Justice Blackburn of the ACT Supreme Court

in 1985. If Your Honours will turn to page 345, in

the middle of the page, in the large paragraph

beginning, "In my opinion", the second sentence:

The police officer was acting in the execution

of her duty, in the execution of a search
warrant which entitled her and the other

police officers to take all reasonable steps

to search the premises, and that included

searching the persons of those persons on the
premises.

That, if the Court pleases, is the good news. The bad news is contained in the second case, in which

the Privy Council, in the case of King v Reg - not
the King v the Queen, it was Herman King v Reg - if

the Court will look at the bottom of page 311, and

over the page to 312 - I will not detain

Your Honours by reading the passage, but

Your Honours will see there the expression of the

Privy Council's view that a power to search

premises did not extend to searching persons on the
premises, and in the case of our section 10 and its

relationship to section 82, we would, with respect, concede that the special provision in section 82(4)

on searching females, really must carry

considerable weight'·in support of the application

of the Privy Council view here, notwithstanding

what Chief Justice Blackburn said in 1985.

In fact, I am instructed that section 10 is

administered on that basis, that it does not extend

Jacobsen(2) 99 20/4/94

to searches of persons but, with respect

Your Honours, that does not affect my main point

that section 10 is essential if force is to be used

against persons on Commonwealth premises in order
to gain access to the premises or rooms - rooms,

and so on, are dealt with in section l0(l)(a) - or

access to containers or to seize items that have

been found there without searching persons.

So, in the kind of troublesome case I

mentioned yesterday where the police might enter

the room, and see some item of evidence on a table

in the room and then someone there grabs the item
with a view to throwing it in the fire or whatever,

the way the provisions work in that sort of

situation is that the section 10 in authorizing

access by force, or seizure by force, is not

regarded as directly authorizing the police to use

force to achieve access or seizure; the way it

works is that if someone seeks to obstruct access

or seizure section 76 on obstruction of police

officers in the execution of their duty is taken to

apply. That enables the police to arrest the

person, and then searches can follow incidental to

that arrest. In my respectful submission that

seems to be a satisfactory interpretation of the

provision, though there may be particular issues

that may arise in due course if they did fall to be

considered.

Another reason why section 10 is needed for

Commonwealth premises is to authorize the police to

take away and detain whatever they get there. Mere

permission from Commonwealth authorities as

occupier of the building would not authorize the

police, for example, to take away a private stamp collection that I might have in my office drawer. So, section 10 is used in relation to Commonwealth

premises for purposes such as that. That is

really all that I propose to say to support my

proposition in relation to Chief Justice Black's

commencing remark that section 10 does not apply to

the Commonwealth and, to some extent, therefore

rebutted the general presumption that section 10

did not apply to the Crown.

If I might turn now to the Melbourne

Corporation principle. My learned friend

Ms Wheeler, and other State interveners, tried, in my respectful submission, to dilute the principle; to change it from a principle that is limited to

interference with the capacity of a State to

function as such, or the structural integrity of a

State. They sought to extend it to interferences

merely with the exercise of particular State

functions, or the administration of particular

State laws.

Jacobsen(2) 100 20/4/94

The principle, in my submission, in relation to non-discriminatory laws is a very narrow one.

In very many circumstances it does not prevent

Commonwealth interference with the administration

of State laws and, in particular here, it does not

protect State records from the intermittent,

limited, and supervised intrusion by the

Commonwealth for its law enforcement purposes.

The Western Australian argument, with respect,

seems to be that if the fishers' allegedly false

statements to the Commonwealth were discovered,
they might then proceed to give the same false
information to the State or not give any

information at all. But the Commonwealth law here

does not in any way interfere with the State's

ability to enact laws to enable it to require

whatever information it needs of fisheries

administration. In terms of the decided cases,

there seems, in my submission, to be an analogy

between a State's general and obvious need to

collect and retain confidential information and its

general need for revenue. But a State's need for

revenue does not mean that a Commonwealth law

cannot interfere with particular aspects of a

State's earning capacity, for example, from

hydro-electric power generation, as in the

Tasmanian Dam case or from large tracts of State

forests, as in Richardson v Forestry Commission,

which we listed in our outline.

Some reference was made by my learned friends for the States to the possibility of the

Commonwealth seizing large volumes of essential

records, for example, States' lands titles

registers, or the like. In my submission, those

possibilities, as regards to the use of section 10,

would be met by the general and basic requirement
that a search must be conducted reasonably, and as
with seizures of comparable kinds of corporation

records, the Commonwealth would be expected to

arrange for copies to be left with the States so

that it could continue with its administration

where they were needed.

So for those reasons, in my respectful

submission, the responses made on behalf of the

States to the argument that the Melbourne

Corporation principle, in the context of the

operation of section 10 with the attendant

principles governing and limiting its exercise -

that there is really no infringement of the

Melbourne Corporation principle. If the Court

pleases.

Jacobsen(2) 101 20/4/94

MASON CJ: Yes, thank you, Mr Rose. The Court will consider

its decision in this matter and will adjourn in
order to reconstitute for the hearing of the next

case.

AT 11.23 AM THE MATTER WAS ADJOURNED SINE DIE

Jacobsen(2) 102 20/4/94