Jacobsen & Anor v Rogers

•

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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)

19/4/94

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 19 APRIL 1994, AT 10.19 AM

MR E.M. HEENAN, QC:

May it please Your Honours, I appear

with my learned friend, MR H.D. SEYMOUR, for the
appellants in this case. (instructed by
M. Rozenes, QC, Director of Public Prosecutions
(Commonwealth))

MR K.H. PARKER, QC, Solicitor-General for the State of

Western Australia: May it please the Court, I
appear with my learned friend, MR R.E. COCK, for
the respondent, and with my learned friend,
MSC.A. WHEELER, for the Attorney-General for the
State of Western Australia intervening.
(instructed by the Crown Solicitor for Western
Australia)

MASON CJ: In supporting the respondent, Mr Solicitor?

MR PAR.KER:	Yes, Your Honour.
MASON CJ:	I was not altogether sure.
MR PAR.KER:	The Attorney is sure, if it please the Court.

MR D.J. ROSE, QC: If the Court pleases, I appear with my

learned friend, _MR E. WILLHEIM, for the
Commonwealth Attorney-General, intervening in
support of the appellant. (instructed by the
Australian Government Solicitor)

MR J.J. DOYLE, OC, Solicitor-General for the State of South

Australia: If the Court pleases, I appear with
MS G.L. EBBECK, for the Attorney-General for the
State of South Australia, intervening in support of
the respondent. (instructed by the Crown Solicitor
for South Australia)

MR K. MASON, QC, Solicitor-Gen~ral for the State of New

South Wales: If the C~urt pleases, I appear with
my learned friend, MR L.S. KATZ, for the

Attorney-General for New South Wales, intervening

in support of the respondent. (instructed by the
Crown Solicitor for New South Wales)

MR P.A. KEANE, QC, Solicitor-General for the State of

Queensland: If the Court pleases, I appear with my
learned friend, MR R.W. CAMPBELL, intervening on
behalf of the Attorney-General for the State of
Queensland in support of the respondent.
(instructed by the Crown Solicitor for Queensland)

MR D. GRAHAM, QC, Solicitor-General for the State of

Victoria: May it please the Court I appear with my
learned friend, MR G.T. PAGONE, for the intervening in support of the respondent.
(instructed by the Victorian Government Solicitor)

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MASON CJ: Mr Heenan, you do not seem to have much support.

MR HEENAN: It is the quality, Your Honours. Your Honours,

we submit that three strands of error pervade the

reasoning in the Full Court. The first is the
conclusions by the court that the application of
section 10 of the Commonwealth Crimes Act to
federal authorities and premises is unnecessary for
the effective - - -

MASON CJ:

Mr Heenan, we have just received an outline of

your submissions and so far we have not had an
opportunity to read those, so that will take us two
or three minutes.

MR HEENAN:

Certainly, Your Honour. Your Honours, the three

threads of error, as we call them, in the reasoning
of the Full Court are reduced to these: firstly,
that the application of section 10 of the

Crimes Act to federal authorities and premises is

unnecessary for the effect of enforcement of
federal criminal laws and hence, so the reasoning

goes, as it is unnecessary to apply section 10 to

the Crown in the right of the Commonwealth, it

follows that it does not apply to the Crown in the

right of any State either.

We say that that is one

error which permeates the reasons in the

Full Court.

The second, we respectfully submit, is

the conclusion that certain provisions of the
Crimes Act, in particular section 85ZQ, suggest
that the Act does not otherwise apply to the Crown
in the right of the Commonwealth and therefore does

not apply to any of the States.

We submit, with

respect, that this is an application of the

principle expressio unius est exclusio alterius

being applied without sufficient discrimination. Thirdly, we say the final thread of error in

the reasoning is that such is the sanctity of
certain confidential documents of State of which

Cabinet papers are the paradigm example that, on

the assumption that no other effective protection

of them is available, it is inconceivable that a police officer could use section 10 to seize any

State, or for that matter, Commonwealth documents.

Now, Your Honours, in order to appreciate why we make those submissions as to the existence of

error, we have sought to draw a series of

propositions from the recent decision of this Court

in Bropho, and we have set them out in summary form

in paragraph 1 of our outline with the page number

to the report in (1990) 171 CLR given. And, of
these, the first is the most important, that the
true quest for the interpretation of any Act of
Parliament is to determine the actual intention of

the legislature.

Bropho saw this Court turn its

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face against stringent and rigid approaches to the
task of construction, while retaining the
traditional presumption in an attenuated form.
It recognized that modern conditions could

alter the application of the assumption, or the
presumption, particularly in the case of government
operations which were in the commercial sphere and
so, by implication, those which were at a remove
from what might loosely be regarded as essential

functions of government. The Court also
acknowledged that there were many statutes which,
while not expressly purporting to bind the Crown,
obviously did so by their very purpose and
subject-matter, an instance among these the general
criminal law statutes and the various criminal
codes.
The Court also acknowledged that there may be

a legislative intent disclosed in any enactment
that some of its provisions might bind the Crown,
and others not, and in case where there was an
intention to bind the Crown demonstrated it might
not extend as far as the person of the sovereign,
or to certain other Crown instrumentalities or
officers. Again, it was a matter for construction
in the particular case; leaving the overall
position as we have said, that the concentration of
the Court is directed to all relevant
circumstances.
Now, in proposition two we have outlined some

observations dealing with what is meant by the
concept "binding the Crown" or applying the
provisions of section 10 of the Crimes Act to the
Crown. There is a spectrum of effects which any
legislation might have on the Crown, or for that
matter any citizen, ranging from a very intrusive

application to more peripheral influence. We would
say, in respect of section 10, that the extent to

which its application will affect a Crown, whether in the right of the Commonwealth or the States, is
occasional, and as Mr Justice French said at first
instance, "episodic". It is hardly a systematic
regular disruption of any operation of a State or
federal government.
The observations which we make are that it

would be contrary to constitutional principle for
the presumption to be applied to override words in
a statute which of their very effect are capable of
binding the Crown, and there is a proposition in
Bropho at page 15 to that extent. Section 10, as is clear, does not impinge on the actual person of
the sovereign. We submit that it does not detract
from traditional prerogative rights of the State,

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and that it does not, in any way, curtail the
freedom of action of a government.

DAWSON J: But, in one sense it does, does it not? It may

not matter, but if you are to draw the distinction
between Commonwealth and State, if the Act binds
the Crown in right of the Commonwealth then, of
course, the Commonwealth has control of the

situation. I mean, the policeman or whoever is
applying for the warrant is under the control of a
minister who ultimately may be a member of Cabinet,
and the operation is, in that sense, under the
control of the government which, of course, does
not occur with this data. That may not matter, but
it is a difference, and I had in mind that that is
one way, of course, with which one could control
anyone seeking access to Cabinet papers.

MR HEENAN: That is, of course, correct, Your Honour. But

that is an inescapable result of a federal system
where there are a group of governments operating
legislative powers concurrently. There will be
clashes of influence from time to time.

DAWSON J:

Do you say then that a State enactment, in

.similar .terms in relation to search and seizure,
would bind the Crown in right of the Commonwealth?

MR HEENAN:

Your Honour, as to that my learned friend,

Mr Rose, may have more to say than I can offer on

the point. But we would say that by virtue of
section 62 of the Constitution, dealing with the
exclusive power of the Federal Parliament over
Commonwealth places, a State legislative provision
to a similar effect could not justify seizure by a
State of Commonwealth papers. That proposition
is - I am sorry, section 52(i) of the Constitution,
I think I said section 62.
This very point is discussed in passing in

Mr Renfree's work, "The Executive Power of the

Commonwealth of Australia" published by Legal Books

in 1984 at pages 80, 81 and following. The
practical evolution of the federal system between
the States and the Commonwealth has resulted in
legislation giving effect to the application of

State laws and Commonwealth places. So pursuant to
that legislation warrants could, presumably, take

effect. I say this subject to any observations of
my learned friend, Mr Rose. But that is the answer
which we would give to that proposition.
This unsymmetrical result is not any product

of section 10, or the application of the Bropho
presumption or its predecessors. It is the result
of a definite preference for exclusive power in
Commonwealth places imposed by the Constitution,

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which puts a slant on the position which does not,
in our respectful submission, reflect on our
argument.

BRENNAN J:

Mr Heenan, can I interrupt you for a moment to

take you back to your first proposition under
heading 2. I am not sure that I first of all
understand the proposition that:
It is contrary to constitutional principle for the presumption to be applied to override
words in a statute -

I mean, the whole problem of presumptions is to construe words, and I do not find the passage on page 15 which supports your proposition.

MR HEENAN:

Your Honour, we do not mean to convey by that

observation any suggestion that there is an express
provision in the Crimes Act indicating that the
Crown in any right is bound but, taking the words
of the statute as a whole, we say that they produce
that necessary effect or implication. If that is
what they do, then there is no life for the
presumption to produce a contrary effect. That is
what we intend to convey by the point.

BRENNAN J:

Is there any passage on page 15 which you

specifically wish to refer to in support of this
approach?

MR HEENAN: At page 15, about point 3, there is the

observation:
This notion of a prerogative to override the
provisions of a duly enacted statute was
rejected by Lord MacDermott and Lord Reid in
Madras -

and it proceeds from that. That is the source of

our proposition.

BRENNAN J:

I see. construction of the statute and what effect it has

So it is really a question of

on the prerogative?

MR HEENAN:

At page 15 they were speaking of prerogative

rights. We would say here the question is to
determine the scope of the application of the
statute. If it is effective, it would subject the
Crown, both in the right of the Commonwealth and in the right of the States, to certain occasional
obligations to which it would not otherwise be
subject.

BRENNAN J:

I do not wish to delay you, but it seems to me

that this might well be an important aspect of the

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case. If one is speaking about the effect of the
statute properly construed within the area of
power, if we are talking about the construction, then presumptions have a role to play. Now, you seem to conflate those ideas at the start of

paragraph 2. Which are we referring to?

MR HEENAN:	We are referring to construction and we see the service that can be provided by any presumption as
nothing more than an initial predisposition to a
certain conclusion which must always be made
subject to the text which is being construed and the evident purpose which it discloses.
BRENNAN J: Well I understand that now.	Thank you,

Mr Heenan.

McHUGH J: Well, I am afraid I do not, Mr Heenan, and so far

as anything appears on page 15, it seems to me it

is contrary to what is in your proposition. I
mean, one begins with a presumption that the Crown
is not bound by a legislative provision unless
there is some legislative supplementation,

modification or reversal of that presumption. I
just do not understand where you get this
proposition from.

HEENAN J:

Your Honour, we see the real significance of

Bropho as subordinating the importance of
presumptions and concentrating the task on
identifying the true intention of Parliament, and
that if that can be done without resort to
presumptions, so much the better; that there is, as
Your Honour has observed, a starting point with a
presumption which may be strong or weak according
to the case, that the Crown is not bound, but that
that presumption cannot displace other indications,
express or implied, in the statute itself as to its
true ambit; that is all we intend to convey.

TOOHEY J:

Why do you use the expression "constitutional
principle", Mr Heenan?

MR HEENAN: Well, we say that, in relation to the

application of section 10, the effect of giving the
presumption large force, and the application which
the Full Federal Court recognized, is to render, in
practical terms, certain illegal activity beyond
the reach of the law, simply because there is no
effective means by which it can be enforced. It
would be to create sanctuaries where the arm of the
executive could not reach, and where, because of
that lacuna, individuals were in practical terms,
though not in strict legal theory, immune to the

effect of the law. Now, that is why we say it is
contrary to principle, that it should be construed

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in such a way as to lead to a practical immunity
from enforcement of a criminal law.

DEANE J:

Does the problem not arise from the ambiguity of

the word "override"? I mean, if you substitute the
word "construe" for "override", the proposition
would be a denial of the starting point of Bropho.

MR HEENAN:

Yes, it would.

We would not suggest that.

DEANE J: Well then, "override" presumably means a

legislative intent derived from the statutory
provision as a whole, something like that.

MR HEENAN:

Yes, it does.

DEANE J: Because you will always have words capable of

applying to the Crown if the presumption is going
to do anything at all.

MR HEENAN:

Yes.

McHUGH J: That only means that that paragraph describes the

result, which means that it is of no use at all.

MR HEENAN:

It is not for me to say whether it is of use or

not. We offer it as a submission to avoid the
tendency to apply the submission automatically in
lieu of embarking on the task of construction.

BRENNAN J: Mr Heenan, would it be inaccurate if we, instead

of the word "not" before "contrary", substituted
the word "construe" for "override"?

MR HEENAN:	Yes, I think it would, Your Honour.
TOOHEY J:	You might have to ask yourself whether Bropho at

page 15 would then support that proposition.

MR HEENAN:

I would not suggest it did at page 15,

Your Honour.

McHUGH J:

I do not think this is one of your better points,

Mr Heenan.

MR HEENAN:

I had gained that impression, Your Honours.

Perhaps I should pass on. I have developed the
next series of propositions, and the third is that
we say that section 10 provides for the public
good, is a vital part of a statute designed for the
suppression of wrong and provides an aid for the
enforcement of the law. We make those observations
because of the particular views which are expressed
by Chief Justice Griffith in Sydney Harbour Trust
Commissioners v Ryan, which was cited with approval by the majority in Bropho at page 14, although in
circumstances which suggested that the presumption

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had hardened in the years which followed; and by
Justice Brennan as a single judgment at page 27.
Your Honours will see in the Chief Justice's
judgment in Ryan's case at pages 365 and 366 a
discussion of the circumstances set out in the old
law as to when this doctrine applies, and in the
last paragraph on page 365 is the passage:
It was said by Lord Coke in the Magdalen

College Cases that there are three kinds of
Statutes which always bind the King without

naming him. The second class mentioned
comprises Statutes for the suppression of

wrong. The King "is the fountain of justice
and common right, and the King being God's
lieutenant cannot do a wrong: solum Rex hoc
non potest facere, quod non potest injuste
agere .... And although a right was
remediless, yet the Act which provides a
necessary and profitable remedy for the
preservation of it, and to suppress wrong,
shall bind the King. " Accordingly, Plowden
(Comm 236b) says that the Statute of Merton,
Chapter 5, which enacts that usuries shall not run against any being within age, prevents the
King .from a_usurious doubling of rent against
an infant upon default in payment, "for
although the Statute is general yet the King
is bound by it because it is made for the
remedy of infants and for the public good."

The passages go on to discuss similar observations.
But if that decision is any guide to the scope of the application of the doctrine, we are in an area
where the doctrine does not traditionally apply,
except as it was inflated in subsequent decisions
leading to the Province of Bombay.
As already indicated, the section authorizes

what might otherwise be a trespass, but it does not
purport to impose any criminal liability on the

Crown, so we do not have the incongruous result that was discussed in Cain v Doyle and rejected,
nor does it create any special rights or duty
affecting or limiting the rights or powers of the
Crown, subject of course to the observation that
Justice Dawson made earlier in the course of
argument that there obviously is some impact on a

State Crown caused by this legislation. We do not
pretend that there is none, but it is minor, in our
submission.
Next, we make the observation that the section

is designed to effectuate the will of the Crown by
providing a means for the enforcement of its laws. achieving what the Crown through Parliament has

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already said should be achieved. To the extent
that Parliament has said, "Thou shalt not," or to
the extent that it has said, "Thou shalt", that is

the will of the Crown, and it is to be expected and
presumed that the Crown expects its formal will to
be obeyed, and this section, and its application,
does nothing more than carry that will into effect.
As already implicit in the submissions which I

have made so far, we say that by contrast with
cases such as Bradken and statutes such as the
Trade Practices Act, this is a statute which in the
sense that it binds the Crown or applies to the
Crown is well down the scale in comparison with
those other more intrusive examples.

DAWSON J:

Does it not go further than that? It is really

serving a Crown function, it is garnering the
evidence for use in a possible Crown prosecution.

MR HEENAN: Well, it is certainly is in relation to the

Commonwealth Crown, and in relation to the State
Crowns, if they are subject to it, we say it is a very minor interference. That observation shows
that there is not an exact parallel between the
influence of the statute on the Crown in the right
of the Commonwealth, and in the right of the

States. So it cannot be so readily assumed that it
ought not apply to the Crown in the right of the
Commonwealth as Their Honours below concluded.
Next, we set out a series of propositions why we say that, to the extent that the Bropho
presumption applies, is is rebutted by this

statute. The first proposition we make is that the
law enforcement is a primary obligation of the
Crown, and that by virtue of section 3A of the
Crimes Act the section applies throughout the whole of the Commonwealth, its territories, and beyond,
and we cite Kidman's case as an example of the
justification for a political entity such as the

policies by criminal sanctions. Commonwealth to enforce its laws and achieve its The next observation we make is that the scope
for the application of the section is as broad and
diverse as the scope of federal criminal law;
ranging from treason through fraud to a whole host
of other more minor offences, and this is the one
provision or, at least, the dominant provision
which is designed to facilitate the enforcement of
that wide panorama of regulatory offences.
The next observation we make is that no person

is immune from the reach of the federal criminal
law and we refer to the ASIO case, Av Hayden
(1984) 156 CLR 532, the relevant passages are at

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580 and 581, but it is not necessary for me to take
Your Honours to them.
The next proposition we make is that if there

is any law of the Commonwealth - it need not be all
of the laws, just any - which binds officers of the
Crown in the right of the State, the legislative intention must be to submit them and their premises
and individual officers to the coercive power of

search in appropriate circumstances. We say that
because, if these individuals are to be bound by
the federal law, it is inconceivable that it should
not have been intended that there would be
facilitative provisions authorizing the enforcement
of that law and, so long as there is any law which
has that reach, section 10 has a role and purpose
to achieve in enforcing that law.
The next proposition is really in the same

territory, that it would be contrary to the evident
intention of federal criminal laws and
constitutional principle, by that we mean that
nobody should be immune from the federal criminal
law to read down the section so as to insulate
State departments, instrumentalities or premises
from search for evidence against a State employee
who may have committed a federal offence.
The next proposition is that, as in this case

where one is dealing with the application of the
taxation laws, federal legislation has
extraordinary wide and pervasive applications and
it is to be assumed that the reach of the federal
law, in its enforcement provisions, should march in
parallel with the intended scope of the offences
for, otherwise, the provisions would be toothless.
We refer to a Canadian case,

Re: Attorne~General of Canada v Belanger, (1988)
42 CCC (3d) 82, not so much for its expressions of

principle or any great incite into the solution
which the Court is called upon to find on this
appeal, but as an example of what occurs in another
jurisdiction which is evidently thought to be
unremarkable. The situation there was that a
provincial police officer relied on a federal power
to issue a search warrant to obtain evidence
suspected of assisting in the prosecution of a
federal offence and authorizing the seizure of
documents in a federal office; a provincial
officer, federal law, federal offence, and it was
considered entirely unremarkable, and the only
significance of the case from our purpose is to
demonstrate that in a federal situation it is
appropriate that where there is a division of power
that there be a cooperative attitude to the
application of the laws.

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DAWSON J: Can I just test what you said before further? If

there is no Commonwealth place involved, and there
is State law in similar terms it would apply, would
it not, to a federal officer, for instance in a van
carrying federal documents, if a State sought to
invoke the powers of search and seizure?

MR HEENAN:

There was an early doctrine that Commonwealth

officers or agents were immune from State laws, but
that has since been discarded.

DAWSON J:

So that your answer would be, in that situation,

absent any of the problems arising from the
Commonwealth places in whole it would be
reciprocal.

MR HEENAN:

Yes.

The next observation is a matter of

practicality and convenience, that the effect of
the - - -

DEANE J:

Mr Heenan, your heading 2 is defined meaning of

binding the Crown, but you do not seem to address

that question. Must that not really be the
starting point? For example, one sees in some of the comments "binding the Crown" treated as if it
was the same as applying to premises owned by the

Crown. Now, in what sense does that bind the
Crown? Let me take an extreme case. As I
understand it, most of the residential property in the Australian Capital Territory is still owned by

the Crown, but is let to the occupants of it. Does
the section bind the Crown, if it enables private
premises in the Australian Capital Territory to be
entered and searched, or does "bind the Crown" mean
something different here?

MR HEENAN:

Your Honour, the trouble with the phrase and why we selected it as a topic for submissions was that

over the years it appears to have an
undifferentiated use, as Your Honour has observed

in this question, and the earlier cases of which

Sydney Harbour Trust Commissioners v Ryan that we

looked at a moment ago is an example, acknowledges

that in many instances what is meant by "binding the Crown" does not call forth this presumption.

DEANE J:

I think I have probably been a little vague.

The

point I am trying to direct your attention to is
the distinction between a section which says, for
example, "a person shall deliver documents" which
obviously binds the Crown if the person is the
sovereign, or somebody acting in the employ of the
sovereign. But the notion of binding the Crown has
very little meaning for me, if what is involved is
authority judicially granted, or granted by a
magistrate of a justice of the peace, to search

premises. Now, what I am really asking you is, in

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what sense do you use the phrase "binding the
Crown" in that context?

MR HEENAN:

Your Honour, we feel constrained to address the

phrase in circumstances where it has its most ample
and loose effect, because that is evidently what

the Full Federal Court has done. Any influence
whatever upon the Crown, or Crown rights, seems to
be regarded by the Full Federal Court as calling

for the application of the presumption. The
purpose of our submissions is to attempt to achieve
what is implicit in Your Honour's question, that it
is not every influence which calls forth the
application of the presumption, and it is only
those degrees of influence which make a real inroad
on the operation of the Crown, historically in the
exercise of its prerogative; in modern times by
subjecting it to civil liabilities or duties that
calls forth the application of the presumption.
To address Your Honour's postulated example

about the application of section 10 to leasehold property of which the Crown is the proprietor in the Australian Capital Territory, we would say
that, in a real sense, that does not bind the Crown
within the scope of this doctrine, but it
nevertheless has some remote influence, or have
effect, but not enough.

DAWSON J:

Why are we really concerned with binding the

Crown at all? Say you have some man in some
premises which are occupied by a State department
who is holding documents which constitute evidence
of the commission of a federal crime, and that man
is forced to disgorge the documents, and all that
is said is that the trespass would otherwise be
committed in going through this process, it will
not be a trespass. Where is the Crown involved,
except in the most indirect sense?

MR HEENAN:

On my learned friend for the respondent's list

of authorities is Entick v Carrington, and no doubt
Your Honours will be urged by my learned friend that a compulsory entry, search and seizure is an
intrusion, and to the extent that it would
otherwise be actionable, impairs a right, and hence
the rights which that proprietor would otherwise
have are affected or bound in the sense that civil
remedies are excluded. All that is true, but it is of a different order of intrusion to the historical
example of where this doctrine has been applied.

DAWSON J: But you have created a liability on the part of

the Crown of some sort or another.

MR HEENAN:

Yes.

Your Honours, we are at page 4 dealing

with the considerations that we urge rebut the

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presumption, and we are at the second proposition
on the page, practical matters that there would be
hindering of effective and rapid investigation if
access to documents was dependent upon
administrative co-operation. Taking that sentiment
further, we say that the internal administrative
arrangements which the Full Court assumed would be
sufficient to procure access for federal police
officers to federal places or offices are
impractical.
Let us perhaps take an example: supposing the

Taxation Department, for some reason or another, desired to execute a warrant on a defence
establishment because there was thought to be some
taxation evasion going on, and the officer in
command of the establishment conscientiously
believed that it would be unacceptable for such an
individual or group of individuals to have access
to the base or that personnel. What is the scope
for resolving such a conscientious difference in
those circumstances? Does one hop up the ladder of
authority from one superior to another hoping that
eventually the twin superiors will agree one way or
the other? If they cannot agree, does one go to
the-ministerial level? If the ministers cannot
agree, do they vote on it in Cabinet? If the do,
is that an acceptable resolution to the situation?
In our respectful submission, these are

considerations which destroy the assumption by the
learned judges in the Full Federal Court that
internal administration arrangements within the
federal public service or the federal government

would be sufficient to ensure access to desired
documents.
The next proposition is related to that but a

little different. We say that the enforcement of
offences in the federal sphere is the
responsibility of independent authorities, of which
my client is perhaps one conspicuous example. It

is not acceptable, we suggest, that these
independent authorities should be beholden to the
executive government for access to evidence, the
more so when, as is unfortunately sometimes the
case, officers of the executive government are
themselves under investigation.
By way of comparison, we submit, with respect, that the legislative policy is comparable with that
underlying the power to issue a subpoena, and we
submit that Parliament clearly intends that
documents held by Commonwealth or State governments
and their emanations should generally - when I say
"generally" I mean subject to public interest
immunities - be subject to the power of subpoena.

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We refer to a decision of the Supreme Court of
Queensland, Re Commissioner of Water Resources v
Leighton Contractors, (1991) 1 Qd R 549 - also reported in the Australian Law Reports - which was a case of a subpoena being issued in aid of a
commercial arbitration. There were objections to
the issue of the subpoena and they were overridden.
We say that that case is an example,

admittedly at a different level, but nevertheless
an example of the application of the law
enforcement process, or the administration of
justice perhaps would be a better phrase, dealing
with arbitrations and that it is to be assumed and
intended that that policy would be rendered
efficacious by the issue of subpoenas for the

compulsory production of documents. One could
dilate this example by speaking of the power of
this Court or the Federal Court or, for that
matter, State courts to issue writs of subpoena
duces tecum to require the production of documents
reposing within federal or State government offices
for the administration of justice in the cause
before that court. That is such a commonplace that
it does not really call for comment.
Finally in this regard we say that in the

absence of a statutory power such as this
section 10, there would be no ability of any
federal officer to insist that a State officer
provide access to evidence on State premises needed
for the federal criminal law.
Can I turn to our next area of submissions dealing with those provisions in the Crimes Act
itself and other legislation which might
conceivably give some guide on the expressio unius
principle.
Now, Part IC of the Act, the new part dealing

with the investigation of Commonwealth offences,
plainly applies to the Commonwealth, and that was
accepted by His Honour Mr Justice Sheppard at
page 135 of the appeal book, it is clear that these
regimes do apply.
The next section which, I must apologize, is

the subject of an unfortunate typographical error
in the written submissions, it is Part VIIA, it
should be Part VIIC, deals with pardons, quashed
convictions, and spent convictions, and it contains
the significant section 85ZQ, which I invite

Your Honours to address. The section provides
that:
This Part -

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Part VIIC -
binds the Crown in right of the Commonwealth, and of Norfolk Island.
of each of the States, of the Australian

And so, the argument in the Full Federal Court
which found acceptance was that were this Act
generally to apply to the Crown this section would
be unnecessary. It must, therefore, have a
purpose; the implication is that the other
provisions in the Act do not apply to the Crown.

BRENNAN J: But that really raises this whole problem about

the notion of binding the Crown. How that has any
application to the question of the construction of

a gift of power, I do not understand. The question
surely is, "What power has been reposed, in what
repository, and what are the limits on the power so
reposed?"

MR HEENAN:

Because no duty, obligation or liability is

imposed by section 10.

BRENNAN J:

Yes, and it may be that a .question then arises

as to whether, if the power is generally reposed in
a particular repository, there is any inconsistency
between the authorizing law of the Commonwealth and
some law of the State, and that has to be resolved
under section 109.

MR HEENAN:

Yes, well, with all respect, we entirely embrace

those sentiments which Your Honour has voiced.
Now, just a few words about Part VIIC and
section 85ZQ, that part of the Act, as a whole, is
designed to deal with removing from attention or
termed, spent convictions. So that, generally speaking, the scheme is that convictions at a
significance for sentencing purposes, for are

certain level of heinousness, or a certain age,
shall be disregarded when people are being
sentenced for other designated Commonwealth
offences.
So, it is sweeping away an administrative

practice which is otherwise followed in State
courts exercising federal jurisdiction in criminal
matters. So, it is to be expected that there would
be express application of this new provision to the
States in order to quell any doubts on the matter.
And the next observation we make is that the
historical origin of this part of the Act is to be
found in the Australian Law Reform Commission
Report No 37, which dealt, as a discrete subject,
with spent convictions and recommended a regime for

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dealing with them in Commonwealth law. So, it had
an origin which, at that point, was not directly
associated with the Crimes Act.
So we would say, in our respectful submission,

that section 85ZQ is equivocal on the question of
the application of the Crimes Act generally and, in
particular section 10, to the Crown in the right of
the Commonwealth or any of the States, and that no
safe conclusion can be drawn from that, and that is
why we say that the application of the expressio
unius principle by the Full Court was, in this
sense, insufficiently discriminating.

TOOHEY J:

Mr Heenan, could I take you back for a moment to

Part IC and your precis refers to the comment by
Mr Justice Sheppard on page 135, which His Honour
says:
because of the nature of its requirements,
must be binding on the Crown, at least in
right of the Commonwealth.

What is meant in the context at Part IC by the

words "binding on the Crown"? I ask that because
the section or the part itself is concerned with
the investigation of various offences.

MR HEENAN:

I think the best answer which I can proffer to

Your Honour's question is to attempt to elaborate
on the answer I gave to Justice Deane earlier, that
the Full Court seems to have used the phrase "bind
the Crown" in an undifferentiated sense, that any
influence or impact whatever upon the interests of the Crown in the right of the Commonwealth or, for
that matter, the State, will call forth the
principle behind the application of the

presumption. So it does not matter how tenuous the
effect of the statutory provision may be, the
principle is enlivened.

Now, we would say that that is an erroneous

application, but to the extent that Part IC singles
out procedures to be followed in the investigation
of Commonwealth offences, then it imposes
obligations on Commonwealth servants and agents, it
gives certain rights to people who are under
investigation to insist that a particular
procedural regime be followed and it qualifies what
the law enforcement officers of the federal Crown
might otherwise do, and it is in that sense that it
perhaps reduces the scope of activity of
Commonwealth officers that it was regarded as
binding the Crown.

TOOHEY J:

Do you mean Commonwealth officers who are

investigating or who are being investigated?

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MR HEENAN: Well, the answer I proffered contemplated those

who were investigating, but it would apply as much
to those under investigation.

TOOHEY J:

I just have difficulty in understanding what is

meant by saying that Part IC binds the Crown,
unless it means no more than saying that where
investigations are being conducted under Part IC,
an officer of the Commonwealth is not immune from
the operation of those sections.

MR HEENAN:

That may be all it means, Your Honour.

McHUGH J: But one problem may be this, that in the

Full Court the Chief Justice took the view that
section 10 could not apply to Crown premises or

property. Mr Justice Lee, I think, simply referred
to premises and Mr Justice Sheppard stated not
binding that the Crown in right of the State, but
an alternative view is that the Crown is not bound
in respect of its things; things which it possesses
which is on any place. For example, there may be a
distinction between a case of a search warrant
seeking cabinet papers or some other high level
policy documents and a search warrant seeking the
proceeds of yesterday's bank robbery which are
believed to be in the briefcase of a treasury
clerk. There may be no legislative intention to
prevent a search warrant being executed against the
clerk simply because he happens to be on Crown

property. Do you make any submission about that?
I suppose you do not; you are an all or
nothing - - -

MR HEENAN:

Our position, Your Honour, is that had the Crown

wished to protect its interest in its things, as
Your Honour has called them, yet allow its law
enforcement officers to chase its delinquent clerk,
it would have been easy enough to make that
distinction. But no harm can come to the
Commonwealth if one of its officers seize some of

its property. There is no change in the ownership
of the property, nor significantly reduced access
to the property. It is not as if the property of
the Crown is imperilled by the execution of one of
these warrants, just a different servant of the
same Crown takes charge of it temporarily. There
is no reason to be solicitous about the property.

McHUGH J: But it need not necessarily be a Commonwealth

police officer? Section 10: anybody can apply for
a warrant.

MR HEENAN: That is true, Your Honour, but it is

McHUGH J:

I mean it seems to me that it is a very large proposition to assert that anybody can walk off the

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street and if they can persuade a justice of the
peace to issue a warrant to authorize any named
constable to seize high level government policy
papers, that is authorized by the statute.

MR HEENAN: That example calls into attention different

considerations, namely the special interest that a
government will have in confidential papers.

McHUGH J:	I appreciate that, but - - -
MR HEENAN:	We would like to put that to one side for the

moment.

McHUGH J:	I know you would, but I am not sure that you can.
MR HEENAN:	Let us try at least, Your Honour, and if we fail

we fail. But assuming that one can do that, and
Your Honour's question is directed not to some
particularly sensitive piece of Commonwealth
property but just a file in the Social Securities
Department or a piece of furniture in the

Administrative Affairs Department. How is the
interest of the Crown, we ask rhetorically,
jeopardized by allowing a policeman, even a State
policeman, to take that into his possession
temporarily?

McHUGH J:

I must say, notwithstanding statements in earlier

authorities, I am not sure in this context whether

or not you cannot divide up the two. It just seems
to me unrealistic to think that there may be one
rule for the Commonwealth's own servants and
properties and another rule for State property. It
is probably part of my prejudice but I find it
difficult to believe that Parliament could have
intended people to walk into State government
offices and seize papers, unless they say so in
express terms.

MR HEENAN:

Very well, Your Honour. power to be exercised is not unsupervised; it is

The opportunity for the

subject to magisterial oversight.
Your Honours, the next provision that we draw

attention to and which did not come to notice in
the Full Federal Court, is the provisions of the
Commonwealth Electoral Act 1992, section 390A(l).
Perhaps that is an odd place to find a statutory
provision bearing on the application of the Crimes
Act but, nevertheless, this is simply a provision
which excludes sensitive electoral papers from the
scope of search under a warrant issued under
section 10 of the Crimes Act and, again, by
application of the expressio unius principle, we
say that this operates on the plain assumption
that, were it not for this provision, a police

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officer, exercising power under section 10 of the
Crimes Act, could have access to Commonwealth
Electoral Department records, and it points in
diametrically the opposite direction to
section 85ZQ.

BRENNAN J: What do you say about the application of a

warrant under section 10 to the taxation return
covered by a confidentiality provision of the
Income Tax Assessment Act?

MR HEENAN:

The learned counsel for the Commonwealth may

have something to say on this subject but there was
a submission made by the Solicitor-General for the
Commonwealth to the Full Federal Court on that very
point that, at an administrative or departmental
level, there existed a difference of opinion as to
whether federal police could execute such a warrant
against taxation records.

BRENNAN J:

The problem here, for judicial resolution, is

whether or not the power under section 10
authorizes the issue or a warrant for the seizure
of records which are covered by the confidentiality
provisions of a State law.

MR HEENAN:

To the extent that section 10 is a power by a

paramount legislature, in the sense of section 109
of the Constitution, it is a legislative provision
which overrides the confidentiality provisions in
the State law.

BRENNAN J: It reads one part ahead, does it not.

MR HEENAN:

I am sorry, Your Honour.

BRENNAN J: Assuming that it does, there may be power which

can take advantage of section 109. The first
question is; does it, as a matter of construction?

MR HEENAN:

We obviously say that it does, Your Honour.

BRENNAN J: Yes, obviously you do, but is that not the

nature of the problem here?

MR HEENAN:

It is one facet of the problem, certainly,

Your Honour.

DAWSON J:

I thought you said you could have varying degrees

of binding the Crown, and it may be that the Act
binds the Crown up to the point where declared
confidentiality is an obstacle.

MR HEENAN:

We would put it on the footing that

confidentiality, whether as a result of an express
provision such as section 19 in the Fisheries Act,
or occurring by virtue of the documents themselves,

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19/4/94

such as Cabinet documents, are each matters which
might give rise to a public interest immunity which
would deny access, and that that immunity should be
examined in each particular case giving such weight
as is thought appropriate to the policy behind the
provision, express or implied.
In answer to Justice Brennan's question as to

the scope of the power, we would say that the power
is plenary, subject to the influence of the public
interest immunity, and that that - - -

BRENNAN J:	It is also subject to the influence of legal professional privilege.
MR HEENAN:	Indeed.
BRENNAN J:	Then what is it that exempts the power from a

limitation imposed by a State law creating a
privilege from production?

MR HEENAN:

It has to be the amplitude of the power

conferred which, I am afraid, is a tortologist
answer to Your Honour's question. The difficulty
with examining the scope of the power is that the
power has a tendency to expand and contract
according to the situation which will give rise to
difficulty of application and uncertainty in

administration. We respectfully submit that it is
far more efficient and preferable to regard the
power as ample to avoid controversy over its scope,
and to deal with problems at a practical level by
the application of such doctrines of immunity
whether public interest or legal professional or
such other as might be recognized from time to time
in the particular circumstances that it arises,
because that way one avoids the risk that the power
will be unduly truncated by imaginary or rare
difficulties.
The next series of provisions in the Act which

might bear on the scope of its application is Part

VII, and the sections referred to by Mr Justice Lee
sections 77 to 85D, these being the special
espionage, official secrets and securities offences
and their investigation. Here, obviously, one is
in a subject-matter which calls for particular
discretion and supervision, and the regime is to
subject compulsory search and seizure in an
investigation in this area to ministerial
oversight, require a report to Parliament, and to
establish a definite procedure by which the search
power can be exercised.
Section 82 deals with the particular search

warrants there contemplated and we would
respectfully submit that this is a more extensive

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power than given by section 10 because it overrides
what might otherwise be considerations of high
public interest immunity which might be sufficient
to stop a warrant under section 10, and it is
coupled with special safeguards, and to that extent
it cuts down the scope of section 10 but we would
say that that is all that it does.
Our respectful submission is that none of those signposts is conclusive. Some of them, as is
illustrated, point in contrary directions, but this
possibility is well accepted and digested by Bropho
and, in the end, the focus must be on section 10,
with such aid as these other provisions might
guide, but they are not, in our respectful
submission, determinative.
Moving on, Your Honours, to our fifth topic,

the tests which apply to the presumption against
binding the Crown in statutes in 1914. It is
clear, in our respectful submission, that the

doctrine existed. My learned friend, the
Solicitor-General for Western Australia, has in his
outline and in his list of authorities many cases
which demonstrate the existence of the presumption
but, nevertheless, we say it is far less stringent
than it ultimately became in the Province of Bombay
case.
This is all discussed in Bropho at the pages mentioned. In Roberts v Ahern, the night soil
case, it was an application of State laws to the
servants of the executive, and in R v Sutton, the
case where the question at issue was the
application of Commonwealth customs laws to State
instrumentalities or agencies, the formulation was
that in a federation the application of the
doctrine only applied to the enacting Crown and not

the Crown in the right of the States. We have
already looked at Ryan's case as to the scope of

areas which were beyond the ordinary application of
the doctrine.
All we say in relation to these tests is that in 1914 at least, the strength of the presumption
was far less than it became later in the Province

of Bombay. We would suggest, with respect, that it
was not dissimilar to the test as now adopted by
this Court in Bropho and accordingly the approach
taken by Chief Justice Black in this regard, which
to some extent was concessional, is correct,
subject of course to Your Honour Justice Brennan's
remarks in Bropho about what is really meant by
"binding the Crown" in this context. If it is, as
this course of argument has suggested, simply a
question as defining the scope of power, then this
question does not arise.

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19/4/94

The next or sixth area of submissions which we

make deals with the question of whether, when the
application applies, it applies without

differentiation to the Crown in the right of the
Commonwealth and each of the States simultaneously.

McHUGH J:

I appreciate what is said in some of the cases, but somewhere in the books there is a statement of

Sir Owen Dixon where he says that in a federal

system you do not expect one government to be

legislating to affect another government.

Has that

not got some application here? Is that not some

sort of presumption that one starts with?

MR HEENAN:

Yes.

McHUGH J:

You do?

MR HEENAN:

Yes, but if there is a capacity for the federal

government to bind the State governments or their
instrumentalities or agents, and if they do so,
then obviously that must be recognized. So again,
one comes back to the question of what is the true
purpose and the intent of the legislation and to
commence with a prospect in mind that a State
government is not bound will dilute, in our
respectful submission, or might dilute, the
importance of the task of construction.
If everything is equivocal after the exercise

of construction has been attempted, then obviously
the presumption can take effect. But all we intend

to convey by this course of observations is that in
this case we say that this statute binds the Crown
in the right of the Commonwealth and in the right
of the States.

McHUGH J:

I know.

Perhaps I have been influenced by what

Sir Owen Dixon said in that particular case, but I
always have this instinctive reaction that a
Commonwealth statute is not intended to bind the
Crown in right of a State unless there is some

reasonably clear indication of that State. You can
call it a presumption or a prejudice or an
instinctive reaction or what you like - - -

MR HEENAN: That may well be so, Your Honour, but take, as

here, a case where the statutory question is
designed to allow the implementation of a federal
criminal law and where one, for the sake of the
argument, must postulate that in some respects, at
least, the federal criminal law applies to State
officers. One need only contemplate a situation
where a State government instrumentality is making
submissions to the Commonwealth Treasury for
financial assistance, and in the process - perhaps
an unlikely hypothesis - was perpetrating some

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19/4/94

fraud, it would be inconceivable that such an
imposition on the Conunonwealth would not attract
criminal liability by any malefactor.
Now, we are in a situation where one

postulates a federal law which does apply to the
State. That has to be the starting point. And
this question only gets asked: in such a
circumstance does the section 10 power apply to the
State body? In our respectful submission that is a
very different question than the general
observations by Sir Owen Dixon and the elucidation
of principle undertaken by Acting

Chief Justice Gibbs in Bradken's case. One does
not get to ask the question about the application
of section 10 unless one has a federal law which
does apply.
Now, to the extent, if any, that the doctrine

that both Crowns must be bound simultaneously or
not at all has life, and it certainly does
according to the decision of this Court in Bradken,
all we say is that that is a doctrine whose past
foundations, namely the indivisibility of the Crown
and now in a very fragmented and fretted state, and
that it is not a justification for the doctrine
which is any longer seriously advanced either by
the judges or by the conunentators, but that the
doctrine has a position in the law by force of
precedent and tradition. That would seem to be the
situation which presently exists because of Bradken
and the Commonwealth v Rhind, just to give one
other example.

MCHUGH J: But does not your submission mean, in effect,

that the power to issue a search warrant under
section 10 is greater than the power of the Federal
Court to issue a subpoena for the same document?

MR HEENAN:

I am not conscious that it involves that

proposition, Your Honour; it may.

McHUGH J: Well it may be a claim for Crown privilege in

respect of documents and public interest inununity
and so on.

MR HEENAN: Well, in the same way that Baker v Campbell

vindicated legal professional privilege in a non-curial situation in response to a search warrant, we would suggest that the public interest
inununity is capable of vindicating such public
interest that a State might have in its documents.
It would be curious if it were otherwise, if an
important public right which was held by the State
for the benefit of all its citizens had less
recognition than a document which existed for the
private rights of an individual.

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DAWSON J: But how would the State invoke that? You would

say section 10 overrides it.

MR HEENAN:

We would submit that, in the same way that a

magistrate issuing a search warrant in
circumstances where there is a potential for legal
professional privilege to exist, needs address that
question - - -

DAWSON J:

By which you are saying section 10 does not override legal professional privilege?

MR HEENAN:

No, we say it does not.

I am sorry,

Your Honour. I think I may be at cross-purposes.
We say the power of section 10, by virtue of the
decision of this Court in Baker v Campbell, must
yield to legal professional privilege.

DAWSON J: And, just as a matter of construction, and in the

same way, it would yield to public interest
immunity as a matter of construction?

MR HEENAN:

Yes.

DAWSON J: Yes.

MR HEENAN:

Yes, I am sorry if I misunderstood,

Your Honours.

TOOHEY J:

Mr Heenan, I am still having trouble with the

notion of binding the Crown and perhaps this is a
question more appropriately directed to the

respondent, but what happened here was that an

order was made restraining the respondents from

executing the warrant.

Now that meant that they

could not go upon the premises, presumably; a

fortiori, they could not cease documents.

What if

a State officer was in possession of documents,

personal documents, which he was holding on State

premises - the premises of a State office? What is

the argument against you so far as section 10 is

concerned? In other words, is the sanctity
attaching to the documents, to the premises, or is

it attaching to both?

MR HEENAN:

Your Honour, this question resembles very much

an earlier question asked by Justice McHugh, that
the scope of the influence on the State will vary,
according to what is the subject-matter of the
search. If it is State property, one can conceive
a greater interest in the State. If it is no more
than allowing access to property which is illegally
obtained and wrongfully sequestered in State
premises, there is very little justification for
the State to maintain an exclusive attitude towards
its premises.

Jacobsen(2)

19/4/94

TOOHEY J: Well, that gives section 10 a meaning that

expands or contracts, depending upon the nature of
the documents, whether they are personal or
official; if they are official, what level of
officialdom they rank.

MR HEENAN:

Only if one concedes that the State has a

sufficient interest to preclude a search to an item
of its own property on its own premises.

TOOHEY J: It also, perhaps, blurs a distinction between the

seizure of documents and access to documents. It
may be that section 10 operates, or does not
operate to preclude seizure, but other laws operate

to preclude access to documents in certain

circumstances. Now, all these questions seem to me
to make it very difficult to say what is meant by
binding the Crown.

MR HEENAN:

Your Honour, there is no doubt validity in the

various distinctions which have been, but if I may
say so, with respect, from the prospect of a policy

of ·law enforcement and giving facilities to law

enforcement officers, this is an unrewarding and

undesirable dissection. It is not likely to

produce results of significant benefit, either to

the law enforcement officers and the authority whom
they represent, or the authority whose property is

being subjected to search.

The intrusions differ

in degree in the instances which Your Honour has
cited, but really only in degree, and the

inconvenience or disruption caused by those

intrusions are unlikely to be great. If they are
great, to the extent that they menace important

functions of State, then questions of public

interest immunity may well be agitated, but not

unless - - -

TOOHEY J: Certainly the problems that I have raised are not

the sort to be destructive of your argument. They

are really aimed at wondering whether all these
questions are quite separate from the question of
the proper construction of section 10 but, in some
way, go to what happens post seizure, as it were.

MR HEENAN:	Indeed, Your Honour, but taking all those matters into consideration, our preferred position
is that there is an ample power which does not
differentiate between the degree of intrusion,
subject only to questions of public interest
immunity.
TOOHEY J:	But does your argument carry with it any relevant

limitation on the operation of section 10 so far as
the issue of a search warrant and the immediate
implementation of that warrant are concerned?

Jacobsen(2)

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MR HEENAN: This is the problem which concerned

Justice Sheppard; the absence of any formal
structures for the enforcement of those prevailing
considerations as might be the subject of public
interest immunity. All one can say is that there
is an obligation on law enforcement officers to
exercise their powers reasonably. Should they fail

to do so, they may be supervised. My learned
friend for the Commonwealth may have some
submissions to make in this regard. But exactly
the same considerations apply in relation to legal

professional privilege. The situation is in no
material sense dissimilar, yet the protection of
the interest which Baker v Campbell affords has
evidently been regarded by the court as sufficient
to overcome those administrative problems.

TOOHEY J: Thank you.

MR HEENAN:	Your Honours, I was dealing with this question of the simultaneous application of the presumption
to the Crown in the right of the Commonwealth and
all the States. All we say in the end about that matter is that if the position finally arrived at
in Bradken remains, then it is hardly less a rigid
and inflexible presumption than the one that was
discarded in Bropho but, for reasons that I have
attempted to give already, it does not directly
arise in this case.

We come to the question of the special

sensitivity of documents in Cabinet papers and, if
I may say so, Your Honours, I have largely said in
answer to a series of questions the propositions
which are implicit in there. His Honour
Justice Sheppard concluded that there was no
demonstrated scope to vindicate public interest
immunity in the case of non-curial proceedings, and
that seems to have been one reason which inclined
His Honour to reach the conclusion he did in order
to give effective protection to this category of
documents.

We would say, however, that in relation to

public interest immunity, there is a very highly
developed doctrine, particularly in the United
Kingdom which recognizes this as a species of
privilege effective in non-curial proceedings and
that the position in this country is not

dissimilar. We refer to the passages in McNicol.
Can I simply postulate the situation that

essentially the problem is no different within a
State. If one takes the comparable provisions in

the State Criminal Codes, the West Australian
Criminal Code, to section 10 which is our
section 711 - we have handed up copies of this to

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Your Honours - I shall not go through it in any
detail, but it is enough to say that it is a
comprehensive power allowing State police officers
to search variously for evidence or things bearing
on the commission of an offence, which is in some
respects different, but for present purposes
comparable with section 10.
There is nothing on the face of the section

nor, we would say, implicitly in the power which it
confers, to prevent a State police officer seizing
State cabinet papers. There may be circumstances
in which it is necessary to seize State cabinet
papers. A minister or a former minister might be
under investigation, or it may be that the State
cabinet papers would only be subject to search and
seizure if the occasion was sufficiently
exceptional to overcome the degree of privilege and
public interest immunity which would otherwise
attach to them, and that that judgment should be
left to some court which is supervising the
exercise of the power, or whose remedies can be
attracted by anybody who is aggrieved by an attempt
to exercise the power.
If one looks at section 10 it is in no

material sense dissimilar from section 711. So
the problem endures without thinking of the
position of section 10 applying to State

governments. The sanctity of those papers is, by
virtue of section 711, already subject to

violation. The mere potential for that has not
apparently been regarded as an obstacle or a source

of difficulty. It is sufficient if the problem be

dealt with as and when it occurs. So a lot of the
sense of disquiet which is implicit in
Justice Sheppard's reasoning about the potential
for section 10 to lay access to cabinet papers, we
would say, loses its force when it is recognized
that in this sense section 10 is not dissimilar to
many laws of similar effect which have existed for

a long time in the States. That brings us to the question of State
immunity which we will leave to the learned
Solicitor for the Commonwealth.

BRENNAN J: Mr Heenan, looking at section l0(l)(b): why

does one not construe l0(l)(b) to exclude from the
scope of a search warrant any document which, if
tendered to the court in the prosecution of the
offence in question, would be rejected, either by
reason of public interest immunity or legal
professional privilege or State law?

MR HEENAN:

Because it would throw an impossible burden on

the officers executing the warrant. Because it

Jacobsen(2)

19/4/94

would not be reasonably practicable to identify the
issues which might arise at that point.

BRENNAN J: That was the argument that was unsuccessful, was

it not, in Baker v Campbell? How would the
officers determine the question of legal
professional privilege or, for that matter,
material which might, in some cases - I am going to
go on to another subject there - - -

MR HEENAN: Well, Your Honours, I obviously accept that, but

the explanation which we proffer is that in such
circumstances one assumes that the objection be
vindicated by the person who has the interest and
that there will be the opportunity for the interest

to be identified and protected. Now, whether one
calls it a protection of the interest or the
identification of the limitation of the power, in
practical terms may not matter, although I accept
that it is an important juristic difference, but so
long as the interest is protected and the law
recognizes a scope for that protection, that would
satisfy, in our respectful submission, the demands
of Baker v Campbell and the interests of the State
in its papers on an occasion such as this.

TOOHEY J: There is another problem too, I think, with

section 10. It is not in terms identifying
objective criteria because it speaks of "reasonable
grounds of suspecting" and in relation to
paragraph (b), "reasonable grounds for believing
that it will afford evidence".

MR HEENAN:

May I attempt to answer that by making another

observation. If these warrants in pursuit of
taxation offences are executed, then the taxation
officers who receive the material which the warrant
produces and the police officers who execute the
warrants are bound by compendious obligations of
secrecy by virtue of the Income Tax Assessment Act,
the Federal Police Act, public service regulations

closely circumscribed and it can be used for no and the like. So dissemination of the material is
purpose other than the enforcement of the taxation
laws.
So the person who has an interest in

maintaining the secrecy of the documents has that
interest protected except to the extent of the
enforcement of the taxation laws while they are in
the hands of the police or the taxation
authorities. If the prosecution advances to the
point where some or all of the documents are
offered in evidence in a court, then the court will
undoubtedly enforce public interest immunity if it
exists.

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19/4/94

TOOHEY J: My point was a rather different one.

It was that

the validity of the warrant is not necessarily
determined by an ex post facto assessment of
admissibility, because what brings paragraph (b)
into operation is the existence of reasonable
grounds for believing that the document or thing
will afford evidence.

McHUGH J: And in addition, provisions such as paragraph (b)

have never been limited to legally/lead any
admissible evidence.

MR HEENAN:

Yes.

May it please Your Honours, those are are

submissions in support of the appeal.

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

MR ROSE:

If the Court pleases. Your Honours will have seen

from the outline that we adopt generally the
submissions put by my friend, Mr Heenan, on the
construction issue, but there are some comments
which I would wish to make in addition to what he
has put.
Our position is that if there is any

presumption here in terms of provisions binding the
Crown, any such presumptions are adequately
rebutted by the nature of the subject-matter
involved; rebutted both in relation to the State
and the Commonwealth. We see the search warrant provision as ancillary to the enforcement of the
main offence provisions which, of course, can apply
to State officials just as much to anyone else and
that the search warrant provisions are intended by
the Parliament to apply in the enforcement of those
offence provisions.
In relation to the Commonwealth, it is

interesting that His Honour the Chief Justice in
the court below said that the Commonwealth did not

need to have search warrants to search Commonwealth

premises. I think, with respect to His Honour,
there are problems with that proposition: first,
for example, there is the question of the need to
use force against people on the premises to get

evidence that they may be holding. If police
entered the premises and found someone there
suspected of having evidence in his pockets or
wherever, there may be a need to use force to
compel the person to hand it over. With a search
warrant that can be done; without a search warrant
it would be an assault. There may be some measures
open to the Commonwealth officers involved. If the
person's superiors are there and in a position to
give orders, they could presumably give directions
that he comply but then they would be enforceable
only in due course by disciplinary provisions or

Jacobsen(2)

19/4/94

whatever remedies may exist in relation to trespass
to premises, if he had been ordered out.

DEANE J:

Mr Rose, is there authority for the proposition

that a warrant under section 10 authorizes the

search of a person on the premises? I mean, one
notes, for example, the contrast between section 10
and the espionage search warrant which expressly
authorizes such search and obtains a safeguard in
relation to search of a female.

MR ROSE:

I am not aware of any direct authority,

Your Honour, but I think the general principles in
relation to search warrants do mean that search
warrants extend to the use of whatever force is
reasonably necessary on the premises to obtain
evidence that is suspected of being there, be it on
the person, in the pockets of somebody or in a
drawer or wherever.

DEANE J:

I would be grateful, at some time, for a reference

to the best places establishing - - -

MR ROSE:

Yes.

DEANE J: As I say, I would be inclined to read the contrast

between section 10 and a section in the same Act
authorizing search of an individual pursuant to a
search warrant as not favouring your approach as a
matter of statutory construction.

MR ROSE:

As a matter of the language, perhaps

DEANE J: Yes.

MR ROSE:

- - - with respect, Your Honour, but if one takes

into account the purpose of the provision, one can
envisage all sorts of situations where it really
would be, I would respectfully submit, contrary to
the intention of section 10, that if somebody on

the premises should be able freely to, not
withstanding the search warrant, throw an
incriminating document in an open fireplace - there
are not many these days but, of course, in 1914
there would be plenty of open fireplaces around in
Commonwealth premises - or go somewhere and dispose
of it by some other means, and if the proposition
is that the police constable could not frustrate that activity, then our submission is otherwise,
but we will see what authority we can find on the
issue.

DAWSON J:

Does the Commonwealth Places Act extend the

search and seizure provisions of the State to
Commonwealth places in relation to crimes that are

extended to it?

Jacobsen(2)

19/4/94

MR ROSE:

It applies the provisions of all State laws,

Your Honour, subject to certain exceptions, and
those exceptions preserve whatever implied
constitutional immunities the Commonwealth may
have, and it also, of course, preserves the effect
of any Commonwealth laws that would override the
State provisions as such, because of section 109.

DAWSON J: The effect would seem to be that it does extend

those procedures in relation to crimes which are
extended.

MR ROSE: It would, Your Honour, yes, but subject, as I say,

to whatever implied immunity there may be. The
Commonwealth Places Act, of course, as has already, I think, been mentioned, only applies to whatever are places acquired by the Commonwealth within the meaning of section 52(i) of the Constitution, and
just how far that extends beyond places that are
owned.

DAWSON J:

And you would not contend that the State

procedures do not extend in relation to State .....
for instance a van which had been manned by
Commonwealth personnel or whatever?

MR ROSE: Subject only to this, Your Honour, that I think

the extent of the Commonwealth's immunity under the
so-calleQ Bogul Cigamatic principle is, perhaps,
thought uncertain. If that is limited to
provisions binding the Commonwealth in the narrow
sense that has been mentioned this morning, then it
may be there is no room for the operation of that
principle of immunity. But, maybe there is. There is the Federal Court decision in Manfal v The Trade
Practices Commission, in which His Honour
Justice French, I think it was, discussed that
principle and said it applied to the prerogatives,
revenues and property of the Commonwealth, and
thought that the principle gave an implied immunity

to the Commonwealth in respect of the use of its
property. But, again, whether that extends to the
sort of situation Your Honour has postulated in the
case of evidence in a Commonwealth van, would be
very much a matter for argument.

DAWSON J: And, of course, under the Commonwealth Places

Act, the authority would really be a Commonwealth
authority.

MR ROSE:

It would be a Commonwealth authority, Your Honour,

because the application of the State provisions
really applies them as Commonwealth laws, with the
exceptions that I have mentioned. It does not
apply any provisions that would be invalid for some
reason other than section 52(i) of the

Constitution. So that means, it does not apply the

Jacobsen(2)

19/4/94

State provisions that would be invalid because of
section 109, or because of any other express
provisions of the Constitution, or because of any
implied immunities that the Commonwealth may have,
whatever they may be.
His Honour the Chief Justice in the Full Federal Court suggested that the question of
the application of section 10 to Commonwealth
premises, that there is no need for it to apply
because permission can be obtained, also encounters
certain practical difficulties, in my respectful
submission.
If the suggestion is that the police can

obtain permission from the person in charge of the
building or wherever, it might encounter the
problem if permission is withheld or delayed because that person is the very person under
suspicion. Theoretically, that difficulty could be
avoided by having a standing general permission,
either from each minister or from the
Governor-General in Council. In my submission, it
is not reasonable to suppose that Parliament in
1914 intended to exclude the Crown in right of the
Commonwealth, intended to exclude Commonwealth
departments on the basis that a standing general
approval would be immediately granted by the
Governor~General in Council.
In my respectful submission, it is more likely that Parliament intended to confer a general power,
at least in relation to the Commonwealth
departments, and envisaged that special
difficulties would be solved either
administratively or by legislation if necessary.
The question in 1914 and, indeed, until the
Commonwealth set up its own peace officer force in
1925, was that the enforcement of those
Commonwealth laws was left to State police.

If I can turn now to our written outline. In our submission, we accept that the so-called
Melbourne Corporation principle applies to

section 10. So that it would be invalid; it would
not have a valid application to the extent that any
application of it would do those things which are
mentioned in the various formulations of that
principle.

DEANE J: Is not the real argument, in so far as the

Commonwealth is concerned, that it simply could not
be assumed or really contemplated that it was
intended to create a situation where there would be
immunity from ordinary criminal processes by reason
by executive fiat?

Jacobsen(2)

19/4/94

MR ROSE:	Yes, Your Honour, yes.
DEANE J:	In other words, if it be dependent on permission

from the executive in the case of the Commonwealth,
the responsible minister can, by direction and
denial of permission, frustrate the ordinary
processes of the criminal law.

MR ROSE: Indeed, Your Honour, even postulating a standing

general approval by the Governor-General in
Council, would be legally the possibility that that
might be revoked in relation to special cases where
the Executive Government finds itself in some
embarrassment.

McHUGH J: That is the political question, is it not? Is it

any different from the Attorney-General refusing to
prosecute somebody even though there is evidence of
offence?

MR ROSE: There are established principles, Your Honour, in

relation to the exercise of the prosecutorial
discretion and, in our submission, stands apart
from this problem.

. McHUGH J:	-There are these days .
MR ROSE:	In His Honour Justice Deane's proposition, we

respectfully adopt that in the sense that it is not
a reasonable inference that the Parliament in 1914
intended the enforcement of the Commonwealth
criminal law to be dependent in that way upon
whatever permissions might be granted either by the
Commonwealth executive or, of course, in our
submission, by the State executive either, given
that the State officials are subject to valid
Commonwealth criminal laws just as much as anyone
else as the Court established in cases such as
Av Hayden.

One can imagine a vast number of situations

where essential evidence of breaches of
Commonwealth laws is there in State departments, of
course in hypothetical cases, most often in the
case of offences by individuals rather than by the
State Government or its officers as such. But
nevertheless, one can postulate cases of fraud and
the like where the State Government is suspected of
having broken the law and, in our submission, as I
will be coming to shortly, subject to the
protection afforded to the State Government by the
principles of public interest immunity .
So we accept the general proposition that

section 10 cannot have a valid application that
would do those things to the States, namely,
operate to destroy or curtail their continued

Jacobsen(2)

19/4/94

existence, et cetera, or threaten their structural
integrity.
In our paragraph 3 on the second page we

suggest that given the principles about public
interest immunity to which my friend, Mr Heenan,
has alluded, and the general requirement that a
search must be conducted reasonably it is difficult
to envisage any circumstances where this implied of
the States would be infringed by the exercise of a

State search warrant. The problem of disclosure or
access to the contents of the document will be met by principles of public interest immunity to which
I will come.

McHUGH J: But the public interest immunity is breached by

the fact that the documents are taken away. They
are taken out of the hands of the State and they
are in the hands of a constable of police, or a
taxation officer or somebody else. That is where
the public interest immunity in the documents is
breached.

MR ROSE:

Or, with respect, Your Honour, where it can be

breached because we see the position being really
the same as in relation to legal professional
privilege, and protective procedures can be
devised. Since Baker v Campbell, of course, there
has been considerable discussion and development of
that concept in the cases we have listed in our
paragraph 3, Arno v Forsyth and Federal
Commissioner of Taxation v Citibank.

MASON CJ: That is the decision of the Full Court of the

Federal Court?

MR ROSE:

Yes, Your Honour.

So the requirement that

enforcement of a search warrant must be conducted
in a reasonable manner is the basic proposition

which underlies the need to develop and observe procedures that will protect legal professional
privilege. Legal professional privilege is not

breached by the mere fact that documents are taken away from the solicitor's office. But if they are
taken away after having been put, for example, in
sealed envelopes that leave the opportunity for the
issue of privilege to be determined without the
contents being disclosed to the law enforcement
authorities, then one could say that there has been
a breach of the privilege.
In our submission, the same would be true in

relation to the public interest immunity. If I can
talk about the State departments - if there is a
claim that access by the Commonwealth authorities
for the contents of the document would infringe
that immunity, then one would expect in accordance

Jacobsen(2)

19/4/94

with the general requirement about reasonable means
of enforcement of the warrant, that similar
procedures be complied with. In that situation, if
they are complied with, my proposition in answer to
Your Honour Justice McHugh is that there has been
no breach of the privilege at that stage.
Our next proposition in paragraph 4 is even if

there are any circumstances where enforcement under
section 10 would infringe the implied State
immunity, they do not affect the valid operation of
section 10 to State premises in other
circumstances; that, of course, the necessary
inference from decisions in such cases as Re: Lee
that just because particular applications might
infringe an implied State immunity, in that case,
it does not mean that the section cannot have a
valid application in relation to, in this case,
searches that do not infringe the immunity.
Then we move to the proposition in relation to

the present case that this is not one where
enforcement of the search warrants by reasonable
means, including all the requirements that we would
see as obligatory to protect any immunities, there
would be no .infringement of the State's implied

immunity if those things are done. In relation to
the confidentiality that must be accorded to
information obtained for tax purposes, we have set
out the provisions of relevant legislation there.
We are saying that where it is found that the
documents do have the public interest immunity that
has been claimed for them by the State, the problem
for the State is solved in the sense that the
material will not be admitted into evidence, and
its further disclosure for other purposes is
protected by those statutory provisions we have
listed.
If the information does not have public

interest immunity, then it is difficult to see how
Commonwealth access to it could infringe the implied State immunity under the the Melbourne
Corporation principle, and the drastic curtailment
with their continued existence. If it really is
not serious enough as to enjoy public interest
immunity it is extremely unlikely - in fact I find
it impossible to envisage a situation where it
could be said that nevertheless its use would be a
threat to the continued existence of the States or
to their structural integrity.
So, in our submission, the proper approach to

this is to say that section 10 applies to searches,
both of Commonwealth and State government premises,
but that the interests of both the Commonwealth and
the State in non-use of it as evidence in the

Jacobsen(2)

19/4/94

proceedings is adequately protected along the lines
that I have submitted, and that in this particular
case it is difficult to see any basis for asserting
it in relation to the particular warrant here.
His Honour Justice French decided that there was no
immunity here. An appeal was taken, an application
for a review of the decision on that ground,
amongst others, but the Full Federal Court did not
find it necessary to decide that particular issue.

BRENNAN J:	What do you say about the question whether or not section 10 extends to documents which are the
subject of confidentiality under State law?
MR ROSE:	We would say, with respect, Your Honour, it does

apply; it applies according to its tenor, subject
only to the limits I have mentioned where legal
professional privilege or public interest immunity
is claimed.

DAWSON J:

What about secrecy provisions under Commonwealth

law?

MR ROSE:

Under Commonwealth law, yes.

Pervading the whole

of the subject, and I should have made this
explicit earlier, there is the question whether
section 10 may be overridden by Commonwealth

secrecy provisions. The ones I have looked at do
give rise, in many cases, to some difficult issues
there, but they would have to be determined in
accordance with the precise scope of the
legislation.
It is likely, for example, I think that the provisions in the Taxation Act would override, or
could override, the secrecy provisions in relation
to search warrants addressed to Commonwealth tax

premises. The solution there is that the
Commonwealth Tax Commissioner is given power to
disclose either to Commonwealth or to State law

enforcement authorities some of the information there - some or all, I am not quite sure, because I
have only just had occasion to look at this - but
if I can mention it to Your Honours, it is in the

Taxation Administration Act 1953, section 3E. If I could just read subsection (1). I think it might
have been on our list, so Your Honours might have
it. Section 3E(l):
Notwithstanding any taxation secrecy
provision, the Commissioner may disclose
information acquired by the Commissioner under
the provisions of a tax law to an authorised
law enforcement agency officer, or to an
authorised Royal Commission officer, if the
Commissioner is satisfied that the information
is relevant to:

Jacobsen(2)

19/4/94

(a) establishing whether a serious offence
has been, or is being, committed; or

(b)

the making, or proposed or possible making, of a proceeds of crime order.

And if Your Honours will look at the definition of
"authorized law enforcement" - section 2, if the
Court pleases, defines "authorised law enforcement
agency officer" and then "law enforcement agency"
is defined in terms:
(a) the Australian Federal Police;

(b) the police force of a State or of the
Northern Territory;

So there are comprehensive discretionary powers
there which enable the Commissioner of Taxation to
disclose the information.
Very often I understand that the reason why a

search warrant is obtained in practice for
Commonwealth government departments is to avoid the
application of the secrecy provisions, because many
of them are worded in terms, for example, "no
officer shall _disclose" et cetera, and that is
taken not to cover the taking of documents by
police under a search warrant. But if they were to
go along to the Commonwealth department without a
search warrant and simply ask for the material,
then there could be breaches of the secrecy
provisions by anybody who co-operated with them.

BRENNAN J: That really highlights the problem of the

construction of section 10, does it not? Why is it
that section 10 is read down to acknowledge the
private right to confidentiality in legal
professional privilege, for example, but not a
public right created by statute?

MR ROSE:

If the States were free to enact laws to give

privilege to whatever they chose, one could, with
respect, easily see means of frustration of the
enforcement of Commonwealth criminal law that could
not, in our submission, have been intended by Parliament in enacting section 10. So if the exception is in terms of whatever the States choose
to give confidentiality to, it has those serious
implications, whereas an exception carefully
tailored to recognize only legal professional
privilege and the public interest immunity does not
carry those dangers for Commonwealth law
enforcement.
In interpreting section 10, to make the exceptions in relation to legal professional
privilege and public interest immunity, of course,

Jacobsen(2)

19/4/94

this Court has been guided by the general principle
that important immunities at common law are not
taken to be overridden by a Commonwealth statute in
the absence of a sufficiently clear intention. In
my submission, to allow an exception in terms of
whatever the States might choose to treat as
confidential - - -

DAWSON J: If there is a problem, it can be solved by 109.

There is no problem there, is there?

MR ROSE: With respect, Your Honour, yes, it could be solved

in more explicit terms by section 109 but, in my
submission, in terms of the construction of the
existing legislation, it is along the lines of that
reconciliation.

BRENNAN J: Yes, it does place State legislatures in the

category of somewhat irresponsible institutions,
does it not?

MR ROSE: With respect, Your Honour, I do not think we need

to make assumptions in those terms, but simply that
the enactment of section 10 in the terms in which
it is expressed, very broad unqualified terms, are
sound legal reasons for making exceptions in the
case of - or regarding it as not covering cases
where public interest immunity or legal
professional privilege is claimed, but no
sufficient ground, in my respectful submission, for
going further and acknowledging exceptions in
whatever terms might be chosen by the States to be
immune from Commonwealth law enforcement, given
that all along we are talking about searches in aid
of the Commonwealth criminal law which, ex
hypothesi, might be - - -

BRENNAN J: It does mean, for example, that the Commonwealth

law prescribing confidentiality in matters of
health or education might preclude the operation of

section 10. State laws dealing with the same
matter would not.

MR ROSE:

Yes, Your Honour.

I have already indicated that

perhaps most existing Commonwealth secrecy
provisions do not cut across section 10; they allow
it to operate. But I would have to of course
concede that it would be open to the Commonwealth
to produce that situation where Commonwealth
records were completely exempted from the operation of section 10. The power is there but, by the same token, the power is there in the Commonwealth,
subject only to the Melbourne Corporation principle to enact legislation specifically saying that State
government departments, like any other premises, as
long as we avoid discrimination, the Commonwealth

Jacobsen(2)

19/4/94

can say that they are subject to Commonwealth
searches.
The Melbourne Corporation principle, as we

have conceded, operates as a limit on that, though
for all practical purposes, provided these
procedures about public interest immunity and so on
are complied with, we find it almost impossible - I
think impossible - to envisage any situation where
the Melbourne Corporation principle protecting the
States would ever be jeopardized by an application
of section 10 within those limits. If the Court
pleases.

MASON CJ: Thank you, Mr Rose. Solicitor for

Western Australia?

MR PARKER:

May I pass up to Your Honours an outline of our submissions.

MASON CJ: Yes, Mr Solicitor?

MR PARKER:

Thank you, Your Honour.

Your Honours may be

heartened; the appellants' position has changed
somewhat from below, and I may be able, therefore,
to pass somewhat lightly over much of the outline.
Below it was contended that there was no scope for
the operation of public interest immunity at all.
Of course it is now called in aid to counter the force of arguments regarding material, Commonwealth papers and records, that in 1914, 70 years before
Baker v Campbell, public interest immunity can
hardly have been seen by the Federal Parliament as
an effective protection against the reach of a
search warrant. Also below the appellants - - -

DEANE J:	Mr Solicitor, could I divert you for one moment?
MR PARKER:	Yes.

DEANE J:

I have an affidavit by Ronald McAulay, and I

presume everyone else has. What are we suppose to
do with it on - - -?

MR PARKER:

I had not apprehended Your Honours had it. It

was supplied to us with a view to an application
being made to use it if the appellants thought fit.
No application has been made.

DEANE J: So, you would say we simply disregard it?

MR PARKER: Unless Mr Heenan overlooked the matter; I am not

sure.

MR HEENAN:

No, Your Honours, we do not seek to rely on it.

It was one of the affidavits used on the special
leave application, and it was included in the

Jacobsen(2)

19/4/94

papers made available to the Court in case it was
necessary to look at tangible examples of the
effect of the decision but, in view of the way that
the argument has developed, it has not been
necessary for me to ask for leave to read the
affidavit and subject only to any matters which may
be raised in reply, it is unlikely that that shall
occur.

MASON CJ:

Thank you.

MR PARKER:

I am grateful to Your Honour.

Your Honours will

no doubt make no use of it, but the general tenor
in effect has been picked up in some of the
submissions put already, as to which we would
simply suggest that the position now in
Commonwealth administration may be very different
indeed from what it was in 1914, and perceived or
real difficulties experienced today by the
Australian Federal Police afford a pretty
unreliable guide to what may have been the
perceptions and intentions in 1914. I was though
making the point that below also, the decision in
R v Sutton was relied on to support the contention
that Parliament intended by section 10 not to bind
the Commonwealth, but to bind the States. It is
now contended that the Commonwealth is bound as
well as the States, but subject now to public
interest immunity. So, the ground has moved a bit,
and our submissions were cast in the light of what
we had heard below.
There are three issues raised by the appeal and the notice of contention, whether section 10
has the effect that the records of the Crown in
right of the State are amenable to this search

warrant. An answer in our favour to that, of
course, would resolve the case without more. The
second is whether section 10, properly construed,

excludes public interest immunity. The third only

and that is whether section 10, in its application arises if our submissions as to the first two fail, to this case, so impairs the capacity of the State
to function as a government, that the Melbourne
Corporation doctrine is offended with consequential
partial invalidity of section 10 in some aspects of
its operation in respect of State governments.
Now, it is only that third issue which raises

any question of federal legislative power. Our
submissions in respect of the first and second
issues proceed on the basis that legislative power
exists, but that the Parliament of the Commonwealth
should not be assumed to have exercised the full
measure of its power in the absence of clear
indication that that was intended.

Jacobsen(2)

19/4/94

While there are these three distinct issues, there is nevertheless a measure of common
substratum. This is because, at least in part, the
three issues reflect distinct ways in which the law
seeks to afford a reasonable measure of freedom of
governments from legislative restriction - an
intended legislative restriction in the case of
Crown immunity and public interest immunity, and
too intrusive and restrictive interference in the case of the Melbourne Corporation doctrine. But,
in each case, this is to facilitate the more
effective working of each government and also of
the federation itself.
The events leading to these proceedings were,

in Western Australian eyes at least, a remarkable
development. There had never been a warrant under
section 10 of the Crimes Act against the Crown in
right of the State until these instances, that is
in some 78 years of the operation of the
provisions. As far as our researches have
revealed, there has never been anywhere in
Australia a judicial decision concerning the use of
a section 10 warrant against a State, nor against
the Commonwealth.

This state of affairs, in our submission, is

not so surprising in ordinary circumstances because
there would not normally be real difficulty about
the provision of State information to federal
authorities for the purposes of criminal
investigation, nor of access to federal authorities
to State premises for that purpose, just as the
ordinary experience is that federal authorities the information sought, the presence of section 19 of the Fisheries Act protecting that information from disclosure, and the effect of disclosure of
co-operate with State authorities in these matters.

that information for the purposes of the Reciprocally, of course, the problem of
administration of fisheries in the State.
statutory secrecy provisions has long prevented
access by State police to income tax, census, ASIO
and other Commonwealth statutory information.
Despite this, State criminal investigation has
continued with effectiveness.

BRENNAN J: Are there any cases which deal with the

intersection of a search warrant power with
confidentiality provisions?

MR PARKER:

I do not have a case at all in mind,

Your Honour. If they arose within the one
jurisdiction, the issue would more often be whether
one statutory provision was intended to prevail

Jacobsen(2)

19/4/94

over the other, and I must say I have not
particularly looked in that field because we were

concerned with another issue. I am sorry, if I
come across any I shall make them available.
Your Honours will appreciate that the

Department of Fisheries in Western Australia is a

department of the government. The premises and

records are the subject of the Crown. They are the

property of the Crown in right of the State. It is
a true old-fashioned department in terms of

government administration. The respondent is named
in virtue of his office as the Director of
Fisheries of the State. That is a public service office and section 5(1) of the Fisheries Act makes
that sort of provision.
In paragraph 3 of our outline we set out what

we understand to be the accepted and established
rule of statutory construction, that legislative
provisions worded in general terms are prime facie
inapplicable to the Crown. It is a rule
identifying a presumption to be applied in
ascertaining what was the relevant legislative
intent.

DEANE J:

Mr Solicitor, are the relevant powers of the State

Fisheries Department, I mean relevant for the present case, exercised pursuant to Commonwealth
law or would not most of them be - - -

MR PARKER:

No, Your Honour.

The fishery we are concerned

with is a joint fishery. It was originally managed
by the State without any Commonwealth interest, but
the Commonwealth has developed an interest as the
fishery increasingly moves off-shore; with
depletion of stocks it has gone further to sea. It
is now a jointly managed fishery, but it is managed

under State law. Commonwealth and State joint
legislative schemes operate in such a way that the

Commonwealth law retreats to allow the State legislation to manage the fishery once joint
arrangements have been made, and that is this
fishery.

DEANE J:

So the basis of the State law is peace, order and

good government of Western Australia in a
Commonwealth vacuum, as it were?

MR PARKER:

Yes.

Thank you, Your Honour.

TOOHEY J:

Mr Solicitor, while you are being interrupted,

could I just ask you whether the warrant appears in
its entirety in the appeal book? It is on page 58.
I only ask you that because in your statement the

respondent is named in the warrant. I may have

missed something. The warrants do not appear to be

Jacobsen(2)

19/4/94

included, other than by their inclusion in the
judgments.

MR PARKER:

That is correct, Your Honour, yes. We

understand it to be complete and I do not believe
it was personally directed at Mr Rogers.

TOOHEY J:	Was it personally directed at anybody?
MR PARKER:	No, as I understand.
TOOHEY J:	So what are we to make then of that statement in

paragraph 2 of the outline, that the respondent is
named in the warrant - - -

MR PARKER:

Named in the proceedings, perhaps I should have

said.

TOOHEY J:	I see, yes.
MR PARKER:	I am sorry.

TOOHEY J: And we can take it that the form of the warrant

on page 58 through to page 60 is complete?

MR PARKER:

Yes, that is one of the two warrants.

TOOHEY J: Yes, but they are an identical - - -

MR PARKER:

There is another one addressed to other premises

on the Department of Fisheries, but otherwise in
identical terms.

TOOHEY J: Yes, thank you.

MR PARKER:

Thank you for pointing up that error.

Under the

ordinary statement of the position, the presumption
is now accepted to be of general application and to
apply whenever the prerogatives, the rights or the
property of the Crown are affected, and Your

Honours will see the references given - we do not
need, I believe to turn to them in the way the
argument has gone. McGraw-Hinds is there simply to
make explicit that it is where the interests of the
Crown are adversely affected, which is the point of this, not where the Crown is beneficially affected.
Of course in this case there is a sense in

which one can say that section 10 assists the
Crown, it is for the public purpose of the
enforcement of the criminal law. That, of course,
is the justification for the enactment of the

provision at all. On the other hand, section 10
has a very clear operation adversely affecting the
Crown's enjoyment of its property, and the enjoyment of its rights in respect of its premises

and property. So that the ground upon which the

Jacobsen(2)

19/4/94

presumption operates is well demonstrated. Perhaps
especially so in the case where it is the
legislation of the Commonwealth operating against a
State, but we would say also in respect of the
Commonwealth itself.
In paragraph 4 we have noted some propositions

from Bropho that are relevant to the submissions we
were to put. With respect to that which is (a), we
would simply remind the Court that until, say,
Gulson's case in 1944, the proposition was commonly
put in terms that the Crown is not bound unless
named in it, or unless there arises a necessary implication from the purpose and the provisions that it was intended to bind the Crown. Of course,
the Bombay decision, three years after Gulson, took
that necessary implication and gave it a very
special meaning; one that was, I do not think,
contemplated by Gulson, which directly referred to
a necessary implication from the purpose and the
provisions of the statute.
The position was very well established before

1914, in terms similar to and to the same effect as
that which was given in Gulson, and could I mention
to Your Honours, the Attorney-General for New South
Wales v the Curator of Intestate Estates, (1907)
AC 519, at page 523, where it was said there must
be a clear indication of an intention to bind the
Crown, apparent from a reading of the statute and
its purposes, and Roberts v Ahern, a decision of
this Court in 1 CLR 406 at 418, to similar effect.
From the point of view of the Parliament and

of the draftsman in 1914, the absence of express
words or of other clear indication that the Crown
was intended to be bound, either in the capacity of
the Commonwealth or of the States is, therefore, a
relevant and a material consideration in discerning
the legislative intention because the presumption
was, by then, well established in words that would

have alerted both the Parliament and the draftsman
td·the need to indicate clearly an intention to
bind the Crown, if that is what was truly intended.
Otherwise, the presumption would be that the Crown
was not to be bound where the provisions of the Act
adversely affected the interests of the Crown.

MASON CJ:

Mr Solicitor, we will adjourn now and resume at

2.15 pm.

AT 12.51 PM LUNCHEON ADJOURNMENT

Jacobsen(2)	45	19/4/94
UPON RESUMING AT 2.15 PM:

MASON CJ:	Yes, Mr Solicitor.
MR PARKER:	If it please the Court, at the break we were making the point that the presumption that the
Crown is not bound by general words applies
Crown are adversely affected. That is, where the
wherever the prerogative rights or property of the of it. Perhaps in response to some questions this
morning, it seems to us that the Crown would not be
adversely affected to its detriment in the example
given by Justice Deane of the private dwellings
leased from the Crown in Canberra and cases of that nature.

There are in fact quite a raft of cases,

particularly towards the end of the last century,
in Britain, it having been determined that the
presumption had the effect that the Crown was not
bound by a series of statutes dealing with, say, local authority rating and drainage requirements
and sewerage requirements, et cetera, in which the
question was: is this really property occupied and
used by the Crown for its purposes, or is it being
used for some other purpose? If it was not being
used for the purposes of the Crown in the
governmental sense, then the presumption had no
application but, where it was, the presumption
applied. If it will assist Your Honours, I can get
a list of those authorities and have them provided.
It would be different, however, in our submission, where a warrant is executed to seize
the records of the Prime Minister's office or of
this Court. There, the interests of the Crown are
detrimentally affected. There are cases where it

may be a nice question. For example, it is difficult to see any direct interest of the Crown being adversely affected where police enter
premises that are, for example, premises of the

Crown open to the public. The mere entry of the
police hardly affects the Crown at all, but it
would be significantly to the detriment of the
Crown were the locked doors of the Treasury to be
knocked down by the police relying upon a

section 10 search warrant. So issues of that
consideration arise but, in our submission, there
is clearly binding to the detriment of the Crown
within the meaning of the rule where the records of
a government are to be seized under the compulsive
power of a warrant.

Jacobsen(2)

19/4/94

TOOHEY J:

When you put it that way, Mr Solicitor, are you

putting it as a matter of construction of
section 10 or as some sort of brake on the
operation of the section?

MR PARKER: This is at this point framed in the context of

the operation of the presumption, and what it means
by the old question, "Is the Crown bound or is the
Crown not bound" is a matter of construction.

TOOHEY J: But on the way that you put it, the Crown might

be bound in situation A, but not bound in
situation B, as a matter of construction or as the
operation of the presumption.

MR PARKER: That is because the rule, as we understand it

from the authoiities, operates only where the
statutory provision operates to the detriment of
the Crown, so that if the statutory provision is
not operating to the detriment of the Crown there
is no need for the presumption.
We, at paragraph 5, simply make clear that

this is not a case and our submissions do not
involve the proposition that the servant or agents

of the Crown in the right of a State are not bound
by the Crimes Act in respect of conduct in their
official capacity. That is not a proposition we
would support, but this is not the case that raises
that and there is not the time for any diversion
into that interesting area of discourse. In our
submission, here the question is whether
section 10, although silent, is intended to
authorize forcible seizure of the records of the
State.
Now, there still seems to be half lurking the

question of whether, in a federation, the
presumption is to be applied only to the enacting

Crown or to all Crowns. We would have thought that

Bradken Consolidated Limited v Broken Hill Pty,
which we have noted in paragraph 6, has determined

that matter. We have given Your Honours the
references to the pages, although on rereading, I think, instead of 120 and 121, it is even more to

the point at 122 to 123. I notice Your Honours

have generally been given them. I felt in the
interest of time that there might be no need to
take Your Honours to those passages in view of the
careful treatment that they receive at the
references given.
We accept, as was accepted in Bradken, that in the past that principle emerged on the basis of the
indivisibility of the Crown, but that
indivisibility, having been displaced by the
recognition that the Crown has a distinct and

Jacobsen(2)

19/4/94

independent capacity in each of the self-governing
Territories within its sovereignty, it was
recognized expressly in Bradken, and at the top of
page 5 of our outline we give Your Honours the
references in Bradken where it is made clear that
today the presumption does not depend upon the
doctrine of the indivisibility of the Crown.
We have, in paragraph 9, given Your Honours

extracts from Sir Harry Gibbs and from Your Honour
the Chief Justice and Mr Justice Jacobs, in
Bradken, as to the modern basis upon which, in the
views there expressed, the notion is properly
founded and sensibly founded today. We would
respectfully adopt those views, as commending them
in this case.
We have also, just to look a little further afield, referred Your Honours to the position in
Canada and the United States, where naturally the same issue does arises. In paragraph 10,
Your Honours will see that there are two decisions
which have authoritatively determined that the
statute of the Dominion is presumed not to bind the
governments of the provinces in the absence of a
clear indication of intention, and, might I just
ask Your Honours to turn to Reg v Canadian
Transport Commission, (1977) 75 DLR 3rd 257, at
page 268. This is the case usually referred to in
Canadian jurisprudence as the PWA case, Pacific
Western Airlines. There was a federal law in

general terms. The question was whether it was
applicable to the Province of Alberta when it had

acquired control of Pacific Western Airlines. The

federal regulatory body, under the federal government of Alberta was obliged to notify the
commission and seek its approval to the
acquisition, and Alberta objected that it was not
bound by the general terms of the federal Act and

that was the decision. At page 268 in the Chief Justice's reasons - I
should mention that in any Canadian case there are
two issues, from what I have seen, running
together, because there is a statutory provision
and the judges necessarily consider that - that is
the operation of sections 16 and 28 of the federal
Interpretation Act, and there is then, in the cases
to which we make reference, a distinct
consideration of the common law position, and it is

that upon which we rely. But the reasons, from
time to time, look from one to the other.
In the second paragraph that commences about a

quarter of the way down the page on 268, the
Chief Justice said:

Jacobsen(2)

19/4/94

I would add, however, a further word on
the matter. It may be argued that if the
general reference above-noted -

which is the statutory position -
should be limited to the Crown in right of Canada, it ought not necessarily to follow
that the common law rule expressed in the
Bombay case must govern the position of the
Crown in right of a Province in respect of

federal legislation. Why, it may be asked,
should the rule, developed in unitary England,
apply at all in a federal State? There are,
in my opinion, two answers. First, if the
Crown in right of a Province was unable to
rely on its immunity, unless bound expressly
or by necessary implication, automatic
subordination of a provincial Government to
federal legislation would result, and this
would offend the mutually independent
positions of the Crown in right of Canada and
in right of a Province which obtains under our
constitutional arrangements in the absence of
valid legislation to the contrary. Second,
the common law rule as part of what I may call
Crown law is an historic principle that was
part of the law of this country from its

beginning; and it remained part of our law
under the federal structure brought into force
in 1867, both for the advantage of the Crown in right of Canada and of the Crown in right of a Province. In my view, the Alberta
Government, if not entitled to the shelter
provided bys 16 of the federal Interpretation
Act, is entitled to rely on the common law

expressed in the Bombay case. In either case,
I hold it not to be bound by ss 19 and 20 of
the Air Carrier Regulations.

Your Honours will appreciate that Bombay has

undergone some reconsideration, but the principles
about the application of the presumption in a

federation remain clear. The majority of court
concurred in the reasons of the Chief Justice in
that matter, as appears partly on that page and on
page 273.
In paragraph 10 of our outline I have set out

a citation from Chief Justice Dickson in a later
Canadian case which is to something of the same
effect of one of the two positions taken by
Chief Justice Laskin.
I will not need to take Your Honours to the case in view of the citation there. Again, with only one dissent, the other members of the court

Jacobsen(2)

19/4/94

concurred in what Chief Justice Dickson had to say.
Your Honours also have - I do not intend to turn to it now, but we have provided Your Honours with
copies of the Canadian Bar Review article that is

mentioned by Chief Justice Dickson. I should
mention that very expressly at page 228 of the
Alberta Government Telephones case,
Chief Justice Dickson made it very clear that he was not relying on or endorsing any theory of
constitutional intergovernmental immunity.
In the United States, the presumption that statutes do not bind the government also applies to
both the enacting sovereign in the language used in
the United States' cases but extends to other

sovereigns. We have provided Your Honours with
copies of the extract from Corpus Juris Secundum.

I do not need to refer to it. The language of the
Corpus is very familiar to Your Honours, very
similar to the Gulson-type test. It is expressly
said to be applicable to both the enacting
sovereign and other sovereigns and it will all look
very familiar jurisprudence from our eyes in those

pages. I just make the point that on page 317 of
the Juris there is a mention of what used to be the
common law rule as being still the rule in America,
that:
the general rule has been declared not to
apply to statutes made for the public good,
the advancement of religion and justice, and
the prevention of injury and wrong.

That is precisely the language that is dealt with
in Bropho at page 14, point 9, as being the old
rule now displaced in our jurisprudence, the rule
now being accepted in Australia as one of full and
general application.
May I quickly take Your Honours to Will v

Michigan Department of State Police, (1989)

491 US 58. There it was a question of whether a
federal statute in general terms bound Michigan
officials in the context of wrongful dismissal. It

was a federal statute requiring certain procedures
in the case of dismissal. Justice White delivered
the opinion of the majority and at pages 64 and 65
of his reasons, taking up at the first new
paragraph on 64:
We observe initially that if a State is a

"person" within the meaning of the federal
statute 1983, the section is to be read as
saying that "every person, including a State,
who, under any color of any statute .....
subjects ..... " That would be a decidedly
awkward way of expressing an intention to

Jacobsen(2)

19/4/94

subject the States to liability. At the very
least, reading the statute in this way is not
so clearly indicated that it provides reason
to depart from the often-expressed
understanding that "in common usage, the term
'person' does not include the sovereign, [and]
statutes employing the [word] are ordinarily
construed to exclude it."

"Sovereign" there is being used in the sense of the
Government of Michigan:
This approach is particularly applicable

where it is claimed that Congress has
subjected the States to liability to which
they had not been subject before.

Over at the top of page 65, in referring to what is
a distinct rule of construction:
The language of 1983 also falls far short

of satisfying the ordinary rule of statutory
construction that if Congress intends to alter
the "usual constitutional balance between the

States and the Federal Government," it must
make its intention to do so "unmistakably
clear in the language of the
statute .... . Atascadero was an Eleventh
Amendment case, but a similar approach is
applied in other contexts. Congress should
make its intention "clear and manifest" if it
intends to pre-empt the historic powers of the
States -

and citing from South Dakota v Dole:
"In traditionally sensitive areas, such as
legislation affecting the federal balance, the
requirement of clear statement assures that
the legislature has in fact faced, and
intended to bring into issue, the critical

matters involved in the judicial decision."

I am sorry, that is from United States v Bass, not
South Dakota v Dole.
That quick indication of the position, if it

please the Court, is enough to indicate that in the
other alike federations the position reached in
Bradken prevails and is currently alive and

endorsed. Your Honours will be familiar perhaps
with the passage from United States v Hoar, which I
will not turn to, which is the last reference
given, because it was quoted in Bradken at
page 122.

Jacobsen(2)

19/4/94

At paragraph 12 of our outline we respectfully

submit that as with Canada and the United States
the wide application of the presumption to both
federal and State laws serves to maintain
Australia's federal structure and to facilitate its working, that is, if a legislature does intend to
bind the other governments or another government in the federation it should take the care to make that
clear, and the courts have every justification for

basis. In the last paragraph of our 12, the
fundamental rationale for the rule endorsed by
Sir Harry Gibbs in Bradken from United States v

approaching the question of construction on that consequences to Crown or governmental interests.

We turn now, if it please Your Honours, to the
question of section 10 of the Crimes Act in its
application to the Crown in right of Western
Australia. When enacted the Crimes Act contained

intended to bind the Crown in any capacity.

no express indication that its general terms were subject-matter of section 10 provides a basis for any necessary implication of intention that the
Crown be bound by the section.
May I just indicate that two or three times in

this outline we have used the phrase "necessary
implication". It is not intended to revive in any
way anything from Bombay; it is being used in the
Gulson and the earlier sense of necessary
implication, that is, implication having regard to
the purpose and the provisions, et cetera, of the
provision and it is exactly the words used in
Gulson at page 363. So, do not misunderstand;
perhaps I should have been careful to find some
other words to avoid the potential ambiguity.
We would submit that while there are reasons

why the legislature might well have intended that

investigators should have forceful access to all
premises and papers and records, including that of
the Crown and of the Crown in any capacity, there
are also considerations which tell with
considerable strength against that being the
intention of the Federal Parliament. In
paragraph 16 we point to four matters in which the
legislature, had it specifically adverted to the
issue when dealing with section 10, would have seen
the Crown, in any of its capacities, to stand on a
different footing from ordinary citizens and
commercial interests. Its governmental role, its
responsibility for the maintenance of law and
order, the nature of some of the records of the
Crown and the comity which was to be expected

Jacobsen(2)

19/4/94

between the Crown and its different capacities in
Australia.
It needs to be borne firmly in mind that the

Crimes Act was enacted in 1914. Developments and
ideas prevailing today are, in many respects, quite
different from then. There is a danger, we would
think, if today's notions are unconsciously applied
to the task of discerning the legislative intent.
In particular, in 1914, there had not developed to
any degree at all what we now know of a
wide-ranging variety of governmental agencies and
enterprises engaged in almost every aspect of
commercial endeavour. Importantly, there had not
developed the current trend of agencies and
instrumentalities independent of ministerial and
governmental control. In 1914, the executive, no
more so than the executive of the Commonwealth, was
still very substantially, the true old-fashioned
civil service with ministerial responsibility and
accountability the order of the day.
The year is also significant. In 1914 the

Great War commenced. Defence and national security
were in the forefront of governmental and
parliamentary thought. Hardly a setting in which
the government or the Parliament would readily
contemplate placing cabinet, defence and national
security papers of the Commonwealth within the
reach of a search warrant at the behest of anyone,
including a State policemen, under section 3(1) of
the Act, by subjecting the Commonwealth Crown and
all its papers to section 10 of the Crimes Act.
In paragraph 17 of the outline we submit that

this is highly unlikely then to have been intended.
We also point out that subjection of the
Commonwealth Crown would also subject federal
courts and the Federal Parliament, a position
highly unlikely to have been intended, and if an

Commonwealth was in contemplation one would have intention to subject some aspects of the expected appropriate special provision at least in
respect of the courts and the Parliament.

McHUGH J: There is a problem with the Parliament, is there

not, because of parliamentary privilege. I mean,
historically you could not even serve a subpoena on
a parliamentarian while Parliament was in session.

MR PARKER: But, the privilege is a privilege that the

Parliament can waive - - -

McHUGH J:	Of course.
MR PARKER:	The Parliament is enacting section 10. There

being no indication in any direction if it is to be

Jacobsen(2)

19/4/94

given its full, wide operation, there is at least a
serious question whether Parliament was intending
to waive its own privilege in that respect, but
there is not that same issue in respect of the
courts.
The discussion this morning ought to raise the

question, perhaps, whether Parliament should be
assumed, in the absence of a clear indication of

its intention, to override statutory provisions
which protect the confidentiality of government
records, whether Commonwealth or State. If
section 10 is intended to bind the Crown to its
detriment in respect of its records, that issue
comes into focus, but until section 10 binds the
Crown that issue does not really arise. That
issue, along with the others to which we have
adverted, however, affords reason for concluding
that the presumption has not been displaced.
In paragraph 18, we submit that it is at least as likely in 1914 that no need would have been seen
in Australia in ordinary circumstances for
statutory compulsory powers to enable police to
have access to the premises, or the records, of the
Crown in any capacity where they were relevant to
the commission or the investigation of an offence.
In the case of confidential records of the Crown,
it is at least as likely, we would submit, to have
been intended to leave to the governments of the
day a decision whether such records should be made

available in the public interest. And, in that
respect, it is more likely then, at least, that the
records of the Commonwealth, not of the State,
would be relevant to the investigation of federal
offences.
In paragraph 19, we point out that statutory

provisions authorizing search and seizure under
warrant, or otherwise, have always been read
narrowly and strictly, because they authorize what

would otherwise be unlawful and actionable rights
of-property and privacy are involved.

TOOHEY J:

Mr Solicitor, it just seems to me at this point the water is getting rather muddy, as they do with

the reference to the breaking in or forcible entry

on to premises.

I understand, as it were, the

dramatic import of that sort of consideration but

in the end the question is, is it not, whether a
search warrant under section 10 may authorize the
seizure of State governmental records?

MR PARKER:

Yes.

TOOHEY J: Because if, for instance, a State public servant

was reasonably suspected of having in his of her

Jacobsen(2)

19/4/94

desk at work documents that provided evidence of a
conspiracy to import heroin, nothing to do with the
officer's duties at all, it would not be argued, I
imagine, that the sort of considerations we are
debating here stood in the way of the issue of a
search warrant under section 10.

MR PARKER:

Not to search and seize the officers'

individuality.

TOOHEY J:

Even if it meant forcible entry into a State

government office.

MR PARKER:

With respect, we have there, in the face of the

authorities, to question that, if it please
Your Honour, because the authorities do establish
the proposition we put earlier that where the
interests of the Crown are being affected to the
Crown's detriment, and if - - -

TOOHEY J:

I really put this question rather as a

proposition to see how far your argument went.

MR PARKER:

Yes.

If there was need to forcibly enter

property used by the Crown for its governmental
purposes, for whatever reason there was
resistance - official resistance, not the private
resistance of an individual who had locked the
door - we would think that the interests of the

State were being adversely affected. The practical
answer there would be the sort of thing that we
have just put to Your Honour that, at least in
1914, the legislature would have thought it
unlikely, if ever, to occur that a government would
prevent federal police - or State police, as it
would have been in 1914 - entering its premises to
search an individual suspected of theft or a drug
offence or some other matter. We would certainly
agree with Your Honour that the warrant would
properly run to enable the police to search the
officer and his personal belongings, even though he

happened to be on the premises of the State.

TOOHEY J:

I was trying to get away from the officer and his personal belongings by postulating a situation that the documents are in a desk at work.

MR PARKER: There, I think our answer must, consistently

with the authorities, remain on the basis that if
there is a detriment to the property of the State,
then the position is that the presumption would
apply.

BRENNAN J:

If they want to arrest him and he locks himself

in his office?

Jacobsen(2)

19/4/94

MR PARKER:	The short answer, at least in Western Australian experience, if it please Your Honour, is that there
would be officers of the State there knocking the
door down rather than the police needing to do it,
but that is likely to be the position.
McHUGH J:	One of the problems I have, Mr Solicitor, is that

there is something unreal about asking what the
intention of Parliament was in 1914 and if one
could guess, the truth is, I think, that
parliamentarians never addressed their minds to the

question. Now, what do we do in that situation?

MR PARKER: If it please, Your Honour, that is precisely, in

our submission, the situation which the rule, the
presumption, applies and that what the law has
always basically been concerned to do in this area
is that if Parliament has not put its mind to the
issue, then we fall back on the presumption so that
Parliament has to think about a matter of this
nature and make its express provision, if it is
intended or if it is needed that there be statutory
authority for powers of this type and Your Honour's
proposition, we would respectfully submit, supports
the approach for which we contend.

McHUGH J: But that assumes that you apply speaker's meaning

to a statute. I mean, do you really look at the
speaker's meaning when looking at the statute or do
you really look at how it will be understood by a
reasonable person who knew all the circumstances
surrounding its enactment and made allowances for
what the purpose of the statute was?

MR PARKER:

My response, if it please Your Honour, would be

to start by saying there is a significant
fundamental public purpose being served by this
rule and one cannot just skip past that and say,
this is purely a question of linguistics and

language. The rule is there so that there is no
unintended intrusion into the adverse lead to the

and there is fundamental reason for that. It is a interests of the property and rights of the Crown
rule of very long standing and while that is there,
legislatures are always enacting in the shadow of
that rule, and certainly were in 1914, and if they
do not turn their mind to it and do not deal with
it in a way that can easily and readily be done,
then there is, in our respectful submission, every
justification for continuing to apply the rule.

McHUGH J: Is it legitimate to ask the question: what would

Parliament have done if it had thought about the
problem?

MR PARKER: It is, in our respectful submission, very

legitimate, and Parliament would have needed to

Jacobsen(2)

19/4/94

make, we would think, a fairly extensive provision
dealing with a variety of the sorts of matters that
are being raised in this statute as it has come to
do in one or two other cases, for example, in the
Canadian case cited by my learned friend,
Mr Heenan, this morning. That has been done in
Canada, and the statutory provision is extremely extensive in dealing with the variety of public
interest considerations that arise when one sets
out to subject in a federation the governments of
the federation to compulsory search and seizure
powers. Could I just mention in addition to what
we have in 19 that, of course, this Court applied
Entick v Carrington in a decision last week in the

Coco case. I do not need to take Your Honours to
it.
In our submission, the subject-matter of

section 10 does not therefore afford justification
for implication that Parliament intended the
general words of section 10 to be binding on the
governments of the State or of the Commonwealth,
and there is no justification for displacing the
presumption. Could I just mention that Part IC to
which reference was made this morning was not in
the Crimes Act when enacted, but with respect to the reasoning of Justice Sheppard below, even if
regard is had to Part IC, we would respectfully
submit it seems to throw no light on the question
whether it is intended by section 10 to bind the
governments of the State and the Commonwealth in
respect of their property. It is dealing with the
investigation of Commonwealth offences. It makes
provisions that need to be observed by
investigators. It hardly enlarges or helps on the
question of section 10 at all.
Now, our submissions have been framed thus far

with particular reference to section 10. In 1914
the issue would more naturally have been raised,
whether the whole Act was intended to bind the

Crown in the sense of the governments of the
co·:riimonwealth and the States. In our submission,
there is nothing about the whole Act to suggest
this rather remarkable situation was intended. For
the most part the Act creates criminal offences.
The notion of the Crown in the sense of a

government, whether federal or State, being
amenable to offence-creating provisions would then,

as now, be regarded as novel. And of course the
statute makes no provision at all to enable the
trial of a government for any of the offences
created, and we just give Your Honours the
reference to Cain v Doyle, 72 CLR 409, especially
at 424 and 418 where even the definition of an

Jacobsen(2)

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"employer" as including the Crown did not displace
what Sir Owen Dixon described:
the strongest presumption against attaching to
a statutory provision a meaning which would
amount to an attempt to impose upon the Crown
a liability of a criminal nature.
Now, of course, like other citizens, Crown

ministers, officers, agents may be bound and
amenable to criminal statutes, but not the
government in right of the Commonwealth or the

State itself. The presumption against the
government being bound by the Crimes Act, in its
general operation, in our submission, is extremely
strong and convincing.
In this case we are concerned with the

operation of section 10 on the property of the
government of the State itself. So whether the
question is posed of section 10 alone or of the

whole Act the answer, we would submit, is the same.
I should make it clear that we would advance our
submissions, whether one applied in its entirety
the test as now developed in Bropho and indicated
to be applicable to statutes subsequent to the
Bropho decision, or if one applied to it the test
in the sense that was alive in 1914 and remained
current until Gulson, we would respectfully submit
no different result emerges, whichever approach is
taken.
May we draw to Your Honours' attention that

key secrecy provisions in Commonwealth legislation
are drafted to prevent officers being bound to
reveal confidential information in judicial
proceeding, but these provisions are not expressed
to prevent seizure under a search warrant. If I
could just mention the Census and Statistics Act,
section 19; the Income Tax Assessment Act,

section 16, and the ASIO Act, section 92S, as
typical examples. There is no attention, at all,
paid in those statutes to the the reach of a search
warrant and, in our submission, that provides
confirmation in the ongoing life of the legislature
of the Commonwealth and the activity of the
Parliament that section 10 has not been generally understood as subjecting the records of the
Commonwealth to search and seizure.

In a decision of the Federal Court, in

Lander v Mitson, 83 ALR 466, the court took the view that a person bound by a usual statutory
secrecy provision precluding the disclosure of
information, would not be in breach of that
provision where records in the person's custody
were taken under authority of a search warrant, at

Jacobsen(2)

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least so long as the officer did not assist in the
search and seizure; the officer merely stood by,
the warrant and its operation would not lead to the
custodian of the records offending, in any way, the
usual secrecy provision.
Now, in that case the affected party was a law

society that was exercising certain statutory
powers, so no issue was relevant of the three
issues posed in this case where the statutory
custodian is the government of a State. Therefore,
the matters in Lander v Mitson were, in the end,
dealt with entirely as a section 109 issue.

MASON CJ:	What is the reference to that case, Mr Solicitor?
MR PARKER:	Indeed, Your Honour, 83 ALR 466, a decision of

Justice Forster in the Federal Court. In this case
we do not reach, in our submission, section 109 on
any one of our submissions because we never reach the point of a federal statute purporting to deal

with these records. I think it was my learned
friend, Mr Heenan, this morning - or was it
Mr Rose - that made reference to - - -

BRENNAN J:

Excuse me interrupting. that you do not pray in aid the provisions of the

Does that mean then

Western Australian legislation in any way to assist
in the construction of section 10?

MR PARKER:

Our position about that, if it please

Your Honour, is this, that if section 10 is to be
construed as intending to bind the government of
Western Australia, one brings then into focus the
question - and one which I think Your Honour posed
this morning - of whether section 10 on its true
construction is intended to authorize seizure of
documents protected by statutory secrecy

provisions, whether Commonwealth or State. Our
submissions do not reach that point because we
submit that section 10 on its true construction, on

evince an intention or a valid intention to bind any of the three matters that we raise, does not
the government of Western Australia.
If they be wrong, Your Honour's question

clearly arises, and we would submit that there is
reason to question, in the absence of clear words,
that Parliament intended to override statutory
secrecy provisions. It was in that context that
the reference was made this morning to section 390A
of the Commonwealth Electoral Act which expressly
said that the electoral records are not amenable to
a search warrant under section 10. That provision,
as far as we are aware, is unique in Commonwealth
legislation. It was inserted by amendment after

these proceedings commenced. So that it does not

Jacobsen(2)

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provide any worthwhile assistance to the intention
of the Parliament either in 1914 or as to the
general understanding of the Parliament in the
intervening 78 years until the issues agitated in
this case emerged.
Of course, the Commonwealth Parliament is well

able to make its intention very clear when it means
to bind the government of the State or officers of
the State who have custody of State records in
provisions which provide for their compulsory

seizure or production. By way of quick
illustration, may I give Your Honours reference to
section 264 of the Income Tax Assessment Act which
expressly provides that officers of the department
of a government are obliged to furnish information.
In respect of that provision, we would notice that

that was inserted in 1936. The previous provision,
in almost identical terms, was section 97.

MASON CJ:

You do not need to go through that do you,

Mr Solicitor?

MR PARKER:

I will move very quickly, if it please

Your Honour - I think there is some value in this
to make that point that before 1936 there was no
reference to officers of a department of a
government, so that we would submit that there was
an amendment in 1936 specifically to attract to the
general words of the provision the effect of
binding the departments of the governments of
Australia to provide information.
Section 1304 of the Social Security Act;

section 155 and section 2A of the
Trade Practices Act, which binds only the
Commonwealth, not the States, as the decision in
Bradken revealed; the Customs Act, I have to
mention more than one provision, because it is a
tortuous legislative scheme, but you move from

section 185 of the Customs Act through
se.e:tions 59 ( 1) to the Shipping Registration Act
1981, section 13, which refers to government ships
being a ship belonging to the Commonwealth, a State
or a Territory, but by that means, officers of the
customs may board and search governmental vessels
of a State; the Corporations Law, which is joint national legislation, section 597 and section 15 bind the Crown in all its capacities; the
Telecommunications Interception Act, section 4,
binds the Crown in all its capacities; the
Proceeds of Crime Act, sections 70, 71 and 11, bind
the Crown in all its capacities, but not so as to make it liable to prosecution for an offence; and section 64A of the Family Law Act, place
obligations on a Commonwealth department to provide

information. The Act is silent as to departments

Jacobsen(2)

19/4/94

of States and, we would submit, not bound. I hope
that was not too drawn out, if it please
Your Honour.
We point out that if one was approaching the question whether the presumption was to apply,
under the tests, at least as they prevailed before
Bombay, section 85ZQ of the Crimes Act would have been relevant and material as indicating that the provisions other than Part VIIC of the Crimes Act
were not binding on the Crown in any capacities.
With the approach endorsed at least for subsequent legislation in Bropho, section 85ZQ pales in its relevance to informing the legislative intent in
1914, but we would draw attention to that
difference of approach and to the fact that there
was seen need to make very express provision when
adding Part VIIC, express provision confined to the
operation of that Part.
In the end, in our submission, there is no

indication in the statute when enacted that
Parliament intended or gave its attention in any
way to the question whether section 10 should be
binding in respect of the governments of either the
Commonwealth or the States, and we submit that therefore the decision of the court below is correct, and to the extent that there may be today
some problems for the Australian Federal Police, if
they are real, the legislature at least has some
clear capacity to make attempts to resolve those
difficulties.
May I turn now, if it please Your Honours, to the issue of public interest immunity. Concessions

are now made that it has application. We have
though, if it please Your Honours, the decision of
Justice French below, and receiving some mild endorsement in the reasons of Justice Sheppard, for
the proposition that public interest immunity does

not have application to section 10. So there is,

in our respectful submission, need to address this
issue to displace the effects of those decisions.
Your Honours will appreciate that public interest
immunity only arises if our submissions as to
section 10 are not accepted.
In the interests of time I will not go through

the treatment of it given particularly by
His Honour Justice French. Could I indicate to
Your Honours that in the appeal book between
pages 71 and 73 and pages 81 and 83, Justice French
deals - I think they are the most significant parts
without intending to be exhaustive - with the core
issues of public interest immunity.

Jacobsen(2)

19/4/94

He formed the view that public interest

immunity had no operation in respect of section 10,
and that even if he were wrong in that that the
circumstances of this case provided no basis for
allowing an objection on the basis of public
interest immunity. His approach on the law was to
regard public interest immunity as a matter of
judicial restraint rather than a matter of
substantial law and, in our respectful submission,
the authorities and reasoning provide reason to
displace that view.
This arises, if I could indicate it briefly,

in the context of the legislation of the State
which is directed to the preservation of the
natural resource which is the rock lobster
industry, or the rock lobster, which supports then
a major commercial industry of very great
significance both to the export earnings of
Australia but also directly and indirectly to the
economy of Western Australia, and it is records gathered by the State solely for the purpose of
monitoring so as to maintain the resource that the
search warrants, in this case, are directed.
Those warrants sought out those records

despite the existence of section 19 of the gathered by the department solely for this

preservation purpose. Both records gathered under
statutory compulsion, and there are limited monthly
returns required by section 18 of the Act, but also
the more significant records which are provided
voluntarily by fishermen on a daily basis, but
which are the subject of both oral and section 19's
expressed statutory protection of confidentiality.
The reason for that protection is the commercial
confidentiality of the information, particularly to
fishermen, their methods of catching, the location
in which they catch, the nature of what they catch,

wo~th - they vary according to whether they have because all crayfish are not of the same commercial the commercially desirable qualities of not - and,
in particular, according to whether the fisherman
on a particular day, in a particular location is
encountering large numbers of either undersized,
that is, younger cray or crayfish in spawn, because
those locations become prized future fishing spots
if their location becomes known to competitors.

I will not take Your Honours to it, but in the
materials that have been provided to Your Honours'
tipstaves, there is an extract from the
western Australian Parliamentary Hansard in 1979,
when section 19 was inserted, and that indicates in
three short paragraphs that the intention of
inserting it was solely to ensure the fishing

Jacobsen(2)

19/4/94

industry that there would be absolute protection of
their commercial confidentiality in the information
that they were being asked to provide.
Could I just divert for a moment to indicate that it is, in our submission, no answer, as was
given this morning, to say that tax officials will
not disclose seized information. Section 16 of the
Income Tax Assessment Act precludes the use of
information gathered under that Act, except in
proceedings. In this case there has been great
care not to use the information gathering powers of
the Income Tax Act. Section 10 of the Crimes Act
has been used instead. Section 16 of the Income
Tax Assessment Act does not apply to information gathered under section 10, certainly not so while
it is in the hands of the Australian Federal
Police.
The consequence is that in the course of their

investigation, having got the catch and process
records, to be able to make anything from them for
the purposes of investigation it is quite likely
and quite legally open to the Australian Federal
Police to take that information to other fishermen
and to processors to compare and test the
information in it to the information in the records
of the other people, and to test the experience
revealed by the department's records against the
experience of others.
In other words, by seizure using section 10

these records may be used precisely to reveal it to
other fishermen and the processors, thereby
encountering the danger that is just the thing that
section 19 was intended to prevent.
Now in paragraph 22 we indicate the general nature, as we understand it to be accepted today,

of public interest immunity. We would point out
that the Grosvenor Hotel decision, at the pages

given, determines that public interest immunity is
a ·rule of substantive law grounded, at least in the
view of Lord Denning in a constitutional principle,
but both Lord Harman and Lord Salmon each expressly
stating the proposition that it is now a rule of
substantive law.
I am sorry, if it please Your Honours, I had,

in attempting to cut out unnecessary material, lost

my own way for a moment. It has been usual in
earlier cases in dealing with public interest
immunity, to approach it as a rule of procedure or
of evidence or even as a matter of judicial
restraint. That was sufficient for the issues then
in hand in those cases. In that regard,
historically, there is a ready analogy with the

Jacobsen(2)

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historical development of legal professional
privilege.
Where the principle has been the subject of

more detailed considerations, such as in the
Grosvenor Hotel case, it has come to be spoken of
in terms apt to describe it as a rule of law of general application, a rule of substantial law.
I notice below that some reliance was placed

on Northern Land Council decision, 30 FCR 1, at

page 25. May I just mention that that decision of
the Full Federal Court contains no reference at all
to the Grosvenor Hotel decision; it seems not to
have been placed before the Court.
In a federal system, the public interest is

equally in the functioning of all governments,
which together share governmental authority in the
Federation, and the principle applies equally to

each of them. Given the more adequate appreciation
of the true character and function of public
interest immunity to protect the proper functioning
of government, we would submit there is no
justification from its nature for confining its
operation to proceedings where the laws of evidence
prevail. It has, of course, certainly been
recognized in other than judicial proceedings, most
strikingly in Parliament where, in a discussion in
Pettifer's work, the House of Representatives
Practice - again, copies are with Your Honours, but
I will not delay by taking you to them - he
outlines that while Parliament has by and large
stopped short of formally accepting that public
interest immunity would allow the withholding of
documents from it, nevertheless, in practice, it
has not required the production of documents for
which such a claim is made, and in the British
Parliament, no claim for public interest immunity has been refused this century by the Parliament.

.. In Aboriginal Sacred Sites Authority v
Maurice, to which reference is made in paragraph 23
of our outline, the Full Federal Court considered
the application of public interest immunity in the
essentially inquisitorial proceedings of the

Aboriginal Lands Commissioner. The nature of the
proceedings are set out at 119 and 120 of the
report. It appears to have been the common ground
of the parties that public interest immunity was
capable of applying. This appears at pages 108
to 109. Nevertheless, in an extensive and
carefully reasoned decision, no member of the court
saw any difficulty or incongruity in applying the
principle effectively in such proceedings.

Jacobsen(2)

19/4/94

That leads, in our submission, to the point

that although it has not apparently arisen for
formal determination previously, public interest
immunity ought, like legal professional privilege,
to be treated as a rule applicable wherever it is
sought to require documents or other information
under compulsion; that is, unless the rule is

abrogated by clear terms of the statute. The rule
arises out of principles of public policy very
similar to legal professional privilege.
Broadly speaking there is a recognized need

for confidential consultation and advice within
government and as an important and common concern
in the dealings of citizens with government in some
situations. There is an important public interest
in maintaining confidentiality in such
circumstances. Similar practical considerations
apply in the case of public interest immunity and
of legal professional privilege. Particular
disclosure at any stage effectively undermines the
principle, hence we submit that public interest
immunity should be available in investigative as
well as judicial proceedings, and wherever
documents may be compulsorily required to be
produced.
Indeed, of course, where disclosure is to a

court, there is the capacity by appropriate orders
to limit the extent of disclosure and the use to
which the information may be put, so there is less
likelihood of the public interest being harmed by
disclosure in judicial proceedings than in
administrative or investigative procedures.
There is a remarkable incongruity if this

position for which we contend is not so in that the
consequence arises in the absence of any express
statutory provision that documents which are
properly withheld from a court on the ground of
public interest immunity could be required to be

produced to an administrative investigation or
proceeding or to a constable.
In paragraph 26 we have sought to indicate

that to the extent that public interest immunity
and legal professional privilege differ, public

interest immunity has a stronger claim to be the
subject of such a rule of construction. Public
interest immunity is grounded in a broader
principle of public interest than legal
professional privilege, which is but an aspect of a
public interest in the rule of law. Legal
professional privilege may be waived but public
interest immunity may not.

Jacobsen(2)

19/4/94

Public interest immunity is not even dependent

upon a claim being made by the parties or by the
Crown. The court has an obligation to raise the matter itself. If a document or a copy of a
document the subject of legal professional
privilege has been obtained by the opposing party,
it may be given in evidence. But a document the
subject of public interest immunity will lose its
status as such only if prior publication, the
nature and extent of it, renders further protection
of the immunity pointless.
We have given Your Honours references from

which we would draw that conclusion. We notice
that section 10 does not expressly or by any words
of implication or by any other means show an
intention to modify or to override public interest

immunity. We of course recognize that section 10
does not provide any procedure for enabling public
interest claims when disputed to be determined. A
similar lack of procedure has not prevented the
recognition that section 10 does not override legal
professional privilege.
With proper arrangements in the execution of warrants, procedures can be developed to enable an
appropriate determination of a claim to public
interest immunity, if not at that stage, by
maintaining the documents under seal until such
time as there is a judicial proceeding in which the
issue is properly raised.
Here, in the facts of this case, we submit,

there is a basis for a class claim to public
interest immunity which we would advance on two
levels. First is the necessity for respecting the statutory guarantee of confidentiality pursuant to

which sensitive information is obtained, and that
is so regardless, perhaps, of the subject-matter. The second looks to the nature of the information

collected in this particular case. The first of these takes as a starting point the significance to so many of the activities of
government of information and, although in some
cases, of course it is more important than others,
by and large the information needs to be accurate
if government is to be effective in what it does on
the basis of information gathered. It recognizes
that in some circumstances information must be
obtained in confidence if it is to be collected at
all. For example, suspected child abuse reporting,
some police complaints, and the like or, at least,
if it is to be accurate information that is
obtained, and an obvious example of that is the
census, undertaken by the Commonwealth, which seeks

Jacobsen(2)

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out information as to a very wide range of private
matters.
In some cases, of course, informal guarantees

of confidentiality may be given. In others, the
legislature may see the information as so important
and so clearly warranting recognition of its
sensitivity, that it provides statutory guarantees.
In that case, as here, if guarantees are to achieve their purpose they must be seen to be effective.
If the information, so gathered under the statutory guarantee of confidentiality, is then disclosed for
any other purpose, however worthy that may be, it
undermines the effectiveness, not only of that
particular statute, but of all others of like

nature. The public just will not trust the

government with its confidential information. Now,
of course, that is not in any way saying that a
statutory secrecy provision cannot be outweighed in
the balancing of interests the public interest
immunity requires; only that it does establish a
strong public interest in non-disclosure.
There is, perhaps, another aspect of public

interest here which may require recognition.
Citizens may legitimately be required to provide information, even private or sensitive commercial information or information which involves
self-incrimination, for one purpose by statute. It
does not follow, in our submission, that it is
appropriate once that information exists for
officialdom, in one guise or another, to use it for
other purposes. There is an important public
interest in keeping within limits, and preferably
clearly prescribed statutory limits, the use to
which information extracted under statutory
compulsion can be put.

TOOHEY J:

Mr Solicitor, in any of these cases has public

interest immunity been used as a basis for
rejecting or confining execution under a search

warrant as opposed to being used to preclude the
production of the material which is the subject of
public interest immunity?

MR PARKER:	I am not aware of one, if it please Your Honour.
TOOHEY J:	If there is such a decision one way or the other,

it might be useful to have it.

MR PARKER:

I have not yet come across one.

As to the

information in this particular case, in
paragraph 30 of our outline, we have attempted to
summarize material considerations. Firstly, the
information is vital to the conservation of an
important natural resource; the information cannot
be accurately obtained by the State in any other

Jacobsen(2)

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way; disclosure of the documents would render any
future collection of such information unreliable
and in each case we have given references to either
the evidence or the findings in the appeal book to
assist Your Honours.
Any information relevant to possible offences

is available to the Taxation Office and the police

from other sources. The documents are of
peripheral relevance to any investigation. Could
I just mention there that both at pages 72 and 73
of the appeal book and also at page 123 in the
reasons of Justice Sheppard, the matter is really
put quite adequately. It is, if one has varieties of this information, put together from a number of sources. It is not impossible to make an estimate of the price for deliveries. However, there would
be a very low degree of accuracy, and that is as
high on the findings and the evidence as the

relevance of this material can go. You put it
together with other information.

BRENNAN J:

What does that lead to in terms of declarations or relief, Mr Solicitor?

MR PARKER:

In this particular case it leads, in our submission, either to the conclusion that the

public interest in non-disclosure should be allowed
to prevail, so that the present warrants should be

quashed and it be then a matter for the police

whether they see anything remaining in the records

of the State that is outside the reach of this

aspect that might be of value to them - and we

would think there is not - or at least it leads to
the position that if there is a concern that the
factual material somehow has not been adequately

canvassed, that the matter perhaps needs to go back
to a single judge of the Federal Court to see

whether the evidentiary issue needs to be further

examined.

We would, however, think that there has

been a very considerable canvassing of the evidence

before Mr Justice French in this case and that

really the matter can be dealt with finally in the

way I first indicated.

BRENNAN J: Quashed in the sense that, although there was

power to issue the warrants, they ought not to have
been issued in the sound exercise of a discretion?

MR PARKER:

Quashed in the sense firstly that, although they

were warrants very expressly directed to a
government in respect of its governmental records
and in respect of which there was a statutory
confidentiality, there was no adversion to those
facts as material to the question whether as a
matter of discretion the warrant should issue in
the first place or as to the terms in which the

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warrant should be framed, having regard to the extreme likelihood of public interest immunity
arising.

BRENNAN J:

So it is a case of a miscarriage of the

discretion to issue?

MR PARKER: In the first place.

BRENNAN J:

Was the relief that was sought in this case apt

to achieve that order?

MR PARKER: It was. Further relief has been sought in the

proceedings since then, if it please Your Honour,
to prohibit any execution of these warrants if for
some reason they were not quashed, in respect of
information that would be protected by a privilege
of this nature. If there were more time, we might
debate perhaps for some five or ten minutes the
possible other approaches to relief. But
essentially the State would seek to be protected
against the seizure of this information where, as
has been revealed in these judicial proceedings, in
our submission, there is a well-founded claim to
public interest immunity. If that issue were not
yet determined judicially and were in dispute, some
other form of relief might be appropriate to enable
judicial determination. But we have gone well down
that road in the course of these proceedings.
I was just pointing out also that the

documents would be inadmissible in any prosecution,
so they can never constitute evidence. There are
two bases for that: firstly, they are obtained
under an inducement of confidentiality, so they could not be used against any of the fishermen;
secondly, section 79 of the Judiciary Act would
apply section 19 of the Fisheries Act in any
proceedings that were later conducted in the
prosecution of offences.

Could I very briefly just mention that there

remains not entirely resolved, the question of the
proper construction of section lOB of the Crimes
Act and its reference to a reasonable apprehension
that there is evidence to be found, and in that
respect in Baker v Campbell differing views were
expressed by the court. May I give Your Honours
references to pages 82, in the reasons of
Your Honour the Chief Justice, and 92 in the
reasons of Justice Wilson, where it was doubted
that it would be read as admissible evidence.
Your Honour Justice Brennan, at page 107, appears
to proceed on the basis that it does, and
Your Honour Justice Deane at page 118, as we
understand the reasons, was saying either that it
does or, at least, that the power to seize should

Jacobsen(2)

19/4/94

not be able to be used to achieve, as a by-product
as it were, the admissibility of an otherwise
privileged document, so that there seems still
scope for consideration of the proper construction
of section lOB itself in its reference to evidence.
So that Your Honours will see that for the

reasons in (d), (e) and (f), although the documents
are sought for the purpose of investigation of a criminal offence, the documents, in fact, are of very low relevance and potential value for that
purpose. That, in our submission, detracts very
significantly from the public interest in there

being made available. As against that, one has the
very considerable public interest, and a public
interest that is not merely dealt with in the
moment of the investigation in dealing with these
particular offences but prevails over the long term
in the maintenance of the natural resource. In our
respectful submission, for those reasons - - -

DEANE J:

Mr Solicitor, I do not quite follow your point

about being admissible because they are obtained on
the basis of an undertaking as to confidentiality.

MR PARKER:

I am sorry, Your Honour, at which particular

point?

DEANE J:

You gave two grounds for inadmissibility.

I did

not quite follow the one that referred to
confidentiality.

MR PARKER:

The first, if it please Your Honour, is that

these documents were obtained under a promise or an
inducement of confidentiality provided by the
statute, and therefore on the ordinary principles
of admissibility in a criminal prosecution, they
would not be admitted on that basis because there

was official inducement. The other is the
operation of section 79 of the Judiciary Act.

DEANE J: That assumes that inducement by other than the

prosecution but by an authority of the State
provides immunity in a prosecution for an offence
against a law of the Commonwealth.

MR PARKER:

We proceeded simply on the assumption,

Your Honour, that when documents are acquired by
the government with a guarantee of confidentiality,
documents that are self-incriminating, and
information is received which is actually created
by the supposed offender to facilitate the purposes
of government because of this guarantee of
confidentiality, that it would not be appropriate
in a criminal proceeding to allow the admissibility
of that document against that person because of
that statutory and public inducement.

Jacobsen(2)	70	19/4/94
DEANE J:	I follow what you say.	It is not self-evident to

me that what you say is right.

MR PARKER:

If that not be correct, we would think section 79 deals with the matter in any event.

DEANE J:

I follow what you say about

- - -

McHUGH J: There was a case in New South Wales, Travers,

58 State Reports, where it was held that statements
made by police officers under compulsory powers
requiring them to report and remiss them in
criminal proceedings.

MR PARKER:

Thank you, Your Honour.

There remain our

submissions with respect to the Melbourne

Corporation. My learned friend, Ms Wheeler, for
the -

BRENNAN J:

Mr Solicitor, before you get to that, if your

argument is right that in the proper exercise of a discretion to issue a search warrant the power has miscarried in this case, what, assuming the failure
of other arguments, should this Court do: come to
that conclusion, or see that the judgment in the
court below was affected by error as to power and
remit it?

MR PARKER: In our submission, Your Honour, the materials

that have been adduced in these proceedings and
which are now before the Court are adequate to
enable this Court to reach a conclusion in the
matter and, therefore, appropriate orders can be.
made by this Court. If the Court had misgivings
about that, the alternative course proposed by
Your Honour would be appropriate.
May I indicate that the respondent adopts, in

anticipation, the submissions on behalf of the
Attorney-General in respect of the Melbourne

Corporation. If it please the Court.

MASON CJ: Yes, thank you, Mr Solicitor. Yes, Ms Wheeler.

MS WHEELER:

May it please Your Honours, as Your Honours

will appreciate, the Melbourne Corporation
submissions are only reached if the Court finds
that public interest immunity is not available to
restrict, in this case, categories of documents

which may be taken under a search warrant. As we
would see it, if public interest immunity is
available then, in this case, the factual
substratum of public interest immunity and
Melbourne Corporation principle is the same, and we
would see the principles of public interest
immunity in their application in a case of this
sort, that is, one applying to documents of a

Jacobsen(2)

19/4/94

confidential type collected for this purpose, as
protecting, perhaps, a wider range of documents
than would be protected by the Melbourne
Corporation principles.
There may, in other situations, be other

governmental interests in documents which do not
arise for decision in this case. There may be, for
example, very routine governmental documents which
the State simply requires access to in order to

carry on its ordinary business. If those were
seized questions might arise but, in this case, it
is the confidentiality basis.
Now, the submissions are based on two strands

in the cases which, in our submission, come
together in these facts. In the earlier decisions
a number of the judgments, the Melbourne

Corporation case among them, there is a focus on
the normal and essential functions of government
and their impairment, for example, in the decision
in that case of His Honour, Chief Justice Latham at
page 52, Justice Rich at page 66, and at page 74
His Honour Justice Starke recognizes the problem of
definition of distinguishing governmental from
non-governmental functions, but the practical test
His Honour refers to, on the following pages, seems
not dissimilar.
More recently, one finds similar types of

formulations in the more recent authorities. One discerns also in some parts of those decisions an
emphasis on the distinctive structures and
processes of the States, that is, an emphasis not
on function but on capacity to function, like
structure and mechanism by which function is
carried out, and that is most explicitly and
extensively developed in judgments of Your Honour
Justice Brennan in the Tasmanian Dam case at 214, and the Second Fringe Benefits Tax case at

362 to 264. In paragraph 31 of our outline of submissions
authorities are cited to illustrate both of those
propositions as to the governmental function
formulation, and as to the structure and mechanism

formulation. Might I just briefly go to that
paragraph, and without going to any of those cases, supplement the references which are there given, at
page 17 under the Queensland Electricity Commission
heading, could I add a reference to
His Honour Justice Wilson at page 222, and page at page 18 the relevant passage is at pages
632 to 634, again Your Honour Justice Brennan, and
in Australian Capital Television, the reference to
Your Honour Justice McHugh where it should be, I

Jacobsen(2)

19/4/94

think, pages 243 to 244, it is a more limited
citation.
Now, although the approach taken in each of

those strands of reasoning is somewhat different,
it would appear, with respect, that similar
principles are involved, and similar questions
arise in each case. The strand of reasoning which
looks to mechanisms and capacity must also concern
itself in a broad, practical and, perhaps,
historical sense with how government is, or must
be, carried out. In this sort of case, in our
submission, it matters not which approach one
takes. In Melbourne Corporation itself, for
example, the activity of collecting and managing
revenue could be seen as either a function - a
function of collecting, a function of banking, and
so on, perhaps - or as a mechanism necessary to the
undertaking of whatever functions the State engaged
in if it was to govern at all.
So, in our submission, in this case one can

characterize the relevant State activity regarded
as the collection of information as either itself a
function of government, and an essential function
of government, or as a mechanism of government,
that is a means by which the organs of government
are made effective, whatever they may in fact

choose to do. And the reasoning for that of course
harks back to the submissions which I adopt and do
not need to repeat in relation to public interest
immunity, and that is briefly that information is
the lifeblood of government and that whatever the
State does it needs to be informed in order to
decide what to do and to decide whether what it is
doing is effective.
It follows from that, in our submission, that

when, as it is submitted is here the case,
confidentiality is essential in order to ensure

that the gathering takes place at all or that the in~ormation gathered is accurate, then to require
the breach of that confidence is practically to
destroy the activity in that case, and the result
is that on one view an essential function of
gathering information is impaired, or on the other,
the States capacity to govern is substantially
impaired because the means of making decisions is
eliminated or contaminated.

McHUGH J: Is this the general proposition about the

collection of information or is it this particular
information?

MS WHEELER:

I would confine it, if it please Your Honour,

because of the difficulty of extracting a general
and comprehensive principle from the cases, to the

Jacobsen(2)

19/4/94

situation where the information needs to be kept
confidential in order that it be collected. That,
in our submission, is a case of this type. It is
not suggested that disclosure of any information to
the Commonwealth under compulsion would offend
Melbourne Corporation.

McHUGH J: Supposing the Commonwealth wanted this

information for defence purposes or even under the
fisheries' powers, is it your contention that
Melbourne Corporation would prevent the
Commonwealth legislating to acquire this
information?

MS WHEELER:

Our submission generally, if I can leave aside

the defence power for a moment, is that where the
information cannot be collected at all without the

guarantee of confidentiality, so that where that

function would clearly be destroyed, then our

submission is the Commonwealth cannot take the

information, it has to go out and collect its own,

and the reason for that is that it would appear

that when one is looking at the impairment of

functioning limb of Melbourne Corporation, it is

not something which waxes and wanes, which depends

upon the Commonwealth power.

One construes the

Commonwealth power, looks at its full extent, and

then applies the limitation doctrine.

McHUGH J:

But all Commonwealth statutes that affect the

States impair their function. Take exercise of the
arbitral power: making awards, industrial awards.

MS WHEELER:

The intention of the submission, Your Honour,

is to draw a distinction between two sorts of
things. If one is looking at impairing the
functioning test - the older test, if I can call it
that - then one has to look at what are essential
governmental functions. There is a difficulty of
drawing distinctions in that case and that is

appreciated, but it is submitted that here ensuring
th~ conservation of the natural capital of the
State is one of those essential functions if one is
looking at that test.
If one is looking at the mechanism of the

structure test, it is not every Commonwealth law by
any means which impairs the way in which the State

goes about its business. Most of them tend to
limit the area in which the State can govern but
not strike so directly, in our submission, not
strike at all, at the means by which it carries on
the process of government, not strike at the
process of parliamentary decision making or
anything of that kind, but simply limit the area
within which the State's laws are effective. So

Jacobsen(2)

19/4/94

that is how we would seek to distinguish the type
of information in this case.
There are other questions which do not arise

here but which may in other cases in relation to
information. For example, where the information is
central to the existence and functioning of
government, if one is looking at cabinet minutes,
records of parliamentary committees perhaps, and
the information is sensitive, it may be that any
disclosure would impair that functioning. We do not seek to apply that sort of test here. It is
submitted that it is enough that the capacity to
collect and use the information be practically
destroyed, and we submit that that point is reached
in this case and that is why Melbourne Corporation
has a role either on the functioning test because
either a collection of information is per se or
conservation is the essential function or,
alternatively at least, because collection of
information, sometimes under guarantees of
confidentiality to ensure that it can be collected,
is part of the mechanism by which the State
governs. It is incapable, whatever the sphere of
operation State legislation has or State government
has, it is impossible that government be carried
out without accurate information to enable those
sorts of decisions to be made. If it please
Your Honours.

MASON CJ:

Thank you, Ms Wheeler.

Mr Solicitor for

South Australia.

MR DOYLE:

Your Honours should have our outline of

submissions.

MASON CJ: Yes, we have them.

MR DOYLE:

The case makes me think there must be some

affinity, Your Honours, between crayfish and

constitutional law; we have have Cole v Whitfield
antj now this case, and of course, Harper v Minister
of Sea Fisheries, although, perhaps on reflection,
that was abalone rather than crayfish.
Your Honours, we generally adopt the

submissions put for Western Australia. Could I
just make a few points by way of supplementation of

our written outline. As to paragraph 1, we do
submit that the Bropho presumption applies here,
and although it is.perhaps slightly inaccurate
shorthand to talk of the Crown being bound, we
submit that the Bropho presumption is not so narrow
as to be confined to laws which directly impose
specific obligations. Here, if section 10 applies
to the State, the State must submit to entry on its
premises, it must submit to opening and search of

Jacobsen(2)

19/4/94

containers and rooms and cupboards in the premises
and then it must submit to seizure of documents.
And so what would otherwise become a series of
trespass reactions would be immunized if section 10
applies and, we submit, as a matter of common
sense, that the Bropho presumption should be seen

as applying in this situation. So we do submit
that we are in that territory.
As to paragraph 2, could I just make one very

short point: really to argue against that,
Mr Heenan said really it is just moving the
document from, as it were, one arm of the executive
to another, when the documents are taken under a search warrant. It is pertinent to bear in mind
though that a constable is a particular person
whose functions are supported by particular
statutory provisions. For instance, it is an
offence to hinder him, he has independent
discretions in relation to which he cannot be
controlled and so, in our submission, while there
may be something in his point, it is going too far
to say that this is just as if the document was
given from one officer of the government to
another; it is given to an officer under section 10
with the special powers and functions.
As to paragraph 3, and still just on the issue of whether section 10 does apply to the State, in
our submission, it really is unlikely when you
think about it that if Parliament intended the
State to be effected by this provision that it
would have done nothing at all about public
interest immunity. In our respectful submission,
if this is relevant, or a relevant approach, if you
put yourself in the position of the notional
draftsman who is minded to have section 10 apply to
the government, surely one would either say, "Well,
we are going to abrogate public interest immunity,
and we had better do it clearly," or, as it would

have been thought in those days, Crown privilege. Or, "We are not abrogating it, and because there is
a particular risk in this sort of situation that
the documents might go before it is properly dealt
with, we will provide some administrative procedure
to deal with that risk."
In our submission, it just seems very unlikely

that the draftsman - as I put it - would have
intended to bind the Crown, and yet choose to be
completely silent about the question of public
interest immunity and we submit that that silence
about it is indicative of the fact that the section
was not seen as applying to the government and,
therefore, the issue of public interest immunity
would never arise and would not need to be dealt
with.

Jacobsen(2)

19/4/94

It would also be relevant to the notional

draftsman that if section 10 did bind the State, as
is proposed here, and did bind the Commonwealth as
well, then a whole series of conflicts with other
Commonwealth confidentiality provisions would arise
and, again, one would think that although such
confidentiality provisions may well have been less
common in 1914, one would still think that the
draftsman would have addressed his mind to that
issue rather than leave it to be resolved case by
case, trying to work out which prevails, section 10
or the specific provision and, in our respectful
submission, while in some cases, eg, Lander v
Mitson, it may not be too difficult to get around
the problem. There are other cases where the
problem of reconciling section 10 and the specific
secrecy or confidentiality provision is very
difficult.
The other point we would also make here,

apropos of another point made by Mr Heenan, is that

subpoenas are quite different. They are much less
intrusive than search warrants and, secondly, under
a subpoena there is of necessity an existing
procedure for resolving these claims because the
subpoena brings the document to the court, where
the claim can be made and dealt with, and this is
perhaps another aspect of the point I just made,
with search warrants there is no procedure built in
for resolving claims of privilege and, in our
submission, that, again, is another reason why one
can conclude that it is unlikely that the draftsman
intended section 10 to effect the Crown.
As to public interest immunity, Your Honours,

I seek to do no more than just make one very short
point relevant to paragraph 11 of the outline, and that is that, even if section 10 of the Crimes Act
does not as a matter of construction apply when
there is a confidentiality provision, at the very

least the existence of a State confidentiality
provision is a matter of fact upon which the public
interest immunity may be based; so it may be
relevant in two ways. First of all, one may say,
as a matter of construction, section 10 does not
apply when there is a State confidentiality
provision applying to the documents.
Alternatively, one can say, "Well, even if it does,
as a matter of construction, nevertheless the fact
of confidentiality is a basis for raising the issue
of public interest immunity".

DAWSON J:	Then you go back and say that as a matter of construction, it did not intend to affect public
interest immunity.

Jacobsen(2)	77	19/4/94
MR DOYLE:	Yes, one could say that.	But one could say even

if that argument is rejected, and it does intend to
affect it - well, if the statute intended to
override it, then that is the end of it, yes.
Your Honours, as to the Melbourne Corporation

argument, as it is called, as in this particular
case it would seem unlikely that one would succeed
under that head if one did not succeed under the
head of public interest immunity, there seems
little point in developing the submission which we
make here. But could I, again, just bring to
Your Honours' attention one point in paragraph 18,
and I think this is the same point as was made by
my friend, Ms Wheeler, and that is, if Your Honours
would look at the very end of that paragraph,
public interest immunity and the Melbourne
Corporation point are not completely co-extensive, because, as we try to indicate there, you could
have records which are in no sense confidential, or
of the sort which public interest immunity would
attract, and yet, nevertheless the seizure of them
could inflict quite serious damage on the ordinary
working of the State.
I do not suggest that is such a case here but,

as we are on this topic, in our submission, it is
pertinent just to point out that, in another
setting, the Melbourne Corporation argument might
well be the argument when public interest immunity

would not be available. And they are our
submissions, if the Court pleases.

MASON CJ:

Thank you, Mr Solicitor.

Mr Solicitor for New

South Wales?

MR MASON:

I hand up an outline of our submissions.

Your Honours, in 1989, Justice Scalia indicated
that in his view it was not the role of the

Court - to plumb the intent of the particular
Congress -

in any question of statutory construction. He said
that the court's task as he saw it was -
not to enter the minds of the members of
Congress - who need have nothing in mind in
order for their votes to be both lawful and
effective.

That passage is in Pennsylvania v Union Gas
Company, 491 US, at pages 29 and 30.
Your Honours, sections A and B of our outline

of submissions seek to draw a distinction between

Jacobsen(2)

19/4/94

two presumptions loosely labelled as "The Bradken

Presumption" and "The Bropho Presumption". We
submit that even if Bropho would lead to the
conclusion that section 10 bound the Commonwealth
non sequitur that it binds the State, and that
there is a separate principle based on federal
conceptions that requires the Court to be
satisfied, in effect, that Parliament had a second
look before legislation is held to be implicitly
binding upon a State polity. Not all of the
reasons given for the approach in Bradken discuss
that, but certainly Justice Gibbs at page 123,
refers to those, what I will call, federal

approaches. Those approaches underpin the American
and Canadian authorities to which reference has
already been made, and which we cite in
paragraph 1 ( d) .
It is also perhaps the same approach as four

Justices of this Court very recently referred to in
Coco v Reg in page 5 of the print, where
Your Honours, the Chief Justice, Justices Brennan,
Gaudron and McHugh said that:
Curial insistence on a clear expression of an
unmistakable and unambiguous intention to
abrogate or curtail a fundamental freedom will
enhance the parliamentary process by securing
a greater measure of attention to the impact
of legislative proposals on fundamental
rights -

and we would say likewise the impact upon the
proper functioning of a State polity.
The Accident Compensation Tribunal case, cited

in paragraph l(b) is perhaps an example of the
issue that was discussed this morning about what is
meant by "binding" or "affecting" the Crown. There
the impact of the federal legislation, albeit on a
State Crown officer, was held not relevantly to

affect the interest of the Victorian Crown because
it .affected that officer qua trustee of private
people's moneys.
In paragraph l(f) the divorcing of the constructional principle from the power principle
is emphasized. If this Court were to overturn
Cigamatic then the Commonwealth would have as much interest as the States, although it could arm itself through 109 legislation in invoking the

principle which we invoke. Your Honour
Justice McHugh referred to a dictum of
Justice Dixon. I think the passage Your Honour had in mind is Uther v The Federal Commissioner, 74 CLR 508, at 529.

Jacobsen(2)

19/4/94

As to the application of what we have termed

the Bropho principle, I will not develop the
written submissions but only add two points: in
paragraph 3(b) reference is made to the presence of
the criminal provisions, which are obviously the

heart and soul of the Crimes Act. My learned
friend, Mr Heenan, said, "Well, of course we are
looking at section 10 and not at the offence-
creating provisions." But section 76 of the
Commonwealth Crimes Act creates an offence of
obstructing a Commonwealth officer carrying out
that officer's duty.
So when, as it were, push came to shove

ultimately the federal warrant could be enforced by
the imposition of a criminal sanction, and
presumably it would be enforced by the imposition
of a criminal sanction if section 10 is applicable.
My learned friend, Mr Heenan, said that this

legislation ought to be construed generously, as it
were, in favour of the Commonwealth Crown because
it is enacted for the public good. That form of
submission, if erected against a fundamental right
of a citizen, would receive short shrift. There is
no reason, in our submissions, why the common law
and constitutionally based rights of the State
Crown and the State polity as a whole should be
treated any less generously. It is said by him in
his submissions that it is capable of abuse.
I think it was my learned friend, Mr Rose, who

said that you cannot be sure, in effect, that there
would not be wrongful obstruction by a State
minister of the proper exercise of the warrant
power. Against that hypothesis, we would submit
there is equally the hypothesis that section 10
might be abused by the person who invoked it. So
it does not really assist very much at the end of
the day. Rather, the presumptions do.

As to section C we would simply, apropos

paEagraph 4, inform Your Honours that following the
discussion in Baker v Campbell about the need to
devise appropriate procedures, guidelines were
worked out between the Australian Federal Police
and the Law Council of Australia and they are set
out in Riley's New South Wales Solicitors's Manual,
paragraph 11,011. Your Honours, apart from those
remarks, I will let the written submissions speak
for themselves.

MASON CJ:

Thank you, Mr Solicitor.

Mr Solicitor for

Queensland.

MR KEANE:

May it please the Court, may we hand up outlines

of our submissions. Your Honours will find that

Jacobsen(2)

19/4/94

the first five pages are concerned with identifying
the grounds of appeal and contention and stating
the Attorney-General for the State of Queensland's

position in relation to them. Our submissions
proper begin at page 6 and I think it fair to say
Your Honours will find no fresh inspiration in those submissions.

MASON CJ:

They seem to cover ground that has already been

covered.

MR KEANE:

They do, Your Honour.

May we say two things

though, in addition, at the risk of repetition?

MASON CJ:

Yes.

MR KEANE:

Firstly in relation to paragraphs 6 and 7 on page 7 of our submissions, may we simply remind the

Court, with respect, of the sequence of the

amendments to the Crimes Act and Your Honour

Justice McHugh raised the question earlier: should

we put ourselves in the position of the Parliament

and what would follow if we were to do that? Well,

the situation is, as one sees from page 105 of the record in the judgment of the Chief Justice of the Federal Court, that the federal Parliament, having inserted section 85ZQ, containing an express

provision binding the Crown in right of the

Commonwealth and the States, in 1989 it

subsequently revisited the Crimes Act and in

particular amended section 10 in ways that are not

presently material.

We mention the point simply

because of the fact that the Parliament had
occasion once again to return to section 10, having

shortly prior to that expressed itself in clear

terms which address an intention to override the

ordinary presumption.

And the only other thing we would wish to say,

with respect, arises in relation to the suggestion

that was made in the course of argument, that
section 10 does not give rise to any occasion for
the operation of the Bropho presumption, and can we
simply draw the Court's attention to the
circumstance that the section denies to persons
whose premises are entered and whose goods are
taken the right for an action for trespass, the
right so strongly and so recently affirmed, or
reaffirmed, by this Court in Coco; circumstances
which, in our submission, provide exactly the sort
of occasion for the operation of the presumption.
Those are our submissions.

MASON CJ:

Thank you, Mr Solicitor.

Mr Solicitor for

Victoria, we would propose to adjourn now, and I
would ask you and Mr Heenan how long it is thought
that the balance of the case will take?

Jacobsen(2)

19/4/94

MR GRAHAM:

I should think, in my case, Your Honours, less

than five minutes.

MASON CJ: If that is so, we will sit on, Mr Solicitor.

MR GRAHAM:

If the Court pleases, we caused to be provided

to the Court at the end of last week copies of our

outlines of submissions. I do not know if the
Court has had an opportunity of looking at them,
otherwise I will - - -

MASON CJ: Yes.

McHUGH J:

It is the only one we had.

We had plenty of time

to study it.

MR GRAHAM:

If that be the case, may I simply adopt the

outline as our submission, together with the
submissions on behalf of the respondent, and say
just a word about what appears at page 6, in
paragraph 15 in deference to some questions asked
by Your Honour Justice Brennan this morning. In
paragraph 15 we have submitted that alternatively -
this is alternatively to the public interest
immunity claim generally - where information or
documents are held by a public officer, or public
body subject to a statutory obligation to keep the
information or documents confidential, a statutory
provision such as section 10 of the Crimes Act
should not construed as authorizing a search or
seizure which would result in a breach of that
confidentiality, unless the Commonwealth Parliament

clearly and unmistakably indicated that this is
intended.
We would draw an analogy with the approach

that the Court took in Baker v Campbell to the
situation with legal professional privilege in the
face of a search warrant issued under section 10 of
the Commonwealth Crimes Act, and we have given

majority judgments where the Court indicated that Your Honours references to the passages in the le.gal professional privilege did not yield to the
terms of section 10, and a warrant issued
thereunder, as the section then stood. It is our
submission there has been no material change since.
Now, of course, the sources of the two

obligations, one, that of a legal professional who
observed his client's confidentiality, as against
the obligation of a government to observe statutory
confidentiality under a provision such as

section 19, are different. But we say that the
analogy is none the less helpful and we would

invite the Court to proceed accordingly. We would
just wish to add one further word about the case of
Lander v Mitson, which was cited by my learned

Jacobsen(2)

19/4/94

friend, Mr Parker, this after - I do not know
whether the Court was provided with copies of that
decision for the purposes of his reference to it.

MASON CJ:

We do not have copies at the present time,

Mr Solicitor.

MR GRAHAM:

We made copies, Your Honour, because we desired

to refer to it. If I could have those passed to
Your Honours. There were two issues which arose
for consideration by His Honour Justice Forster;
one was the interaction between section 10 of the
Commonwealth Crimes Act and section 73 of the South
Australian Legal Practitioners Act, and secondly,
with section 37 of that Act. It is not necessary
to refer to the second aspect of the case.
Section 73 is set out in His Honour's judgment at
page 470, and it contained a provision in
subsection (1) prohibiting a member of the
committee of the Law Society from divulging
information that was obtained under the provisions
of that Act.
His Honour expressed the view that there was

no breach of that provision in circumstances where
the officer stood by and allowed the search warrant

to be executed and documents to be seized, but
there was no consideration of the question whether
the provisions of section l0(l)(b) of the
Crimes Act was subject to any implied limitation
which would forbid the execution of a search
warrant when, to execute it, would result in the
disclosure of information which was the subject of
a statutory cloak of confidentiality.
Indeed, His Honour went so far as to say on page 470 at about line 35 that it would have been
perfectly all right to execute the search warrant
if there had been nobody at home at the Law Society
premises. If that be right, then it would have

been equally so that the search warrant in
Baker v Campbell could have been executed at the
offices of Messrs Stone, James at 4 in the morning
without any breach of legal professional privilege. We say that that cannot be right and, with respect, we would ask the Court not to follow that part of
His Honour's judgment. Those are the submissions
that we desire to put to the Court.

MASON CJ:

Thank you, Mr Solicitor.

We will now adjourn and

resume at 10.15 am tomorrow.

AT 4.24 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 20 APRIL 1994

Jacobsen(2)

19/4/94

[1994] HCATrans 276

Key Legal Topics

Areas of Law

Statutory Interpretation

Administrative Law

Civil Procedure

Legal Concepts

Appeal

Statutory Construction

Jurisdiction

Judicial Review

Standing

Privilege

Attorney-General for New South Wales, intervening
in support of the respondent.	(instructed by the

which its application will affect a Crown, whether	in the right of the Commonwealth or the States, is
occasional, and as Mr Justice French said at first
instance, "episodic". It is hardly a systematic regular disruption of any operation of a State or federal government.

Commonwealth of Australia" published by Legal Books
in 1984 at pages 80, 81 and following.	The

modification or reversal of that presumption.	I
just do not understand where you get this
proposition from.

the sort to be destructive of your argument.	They
are really aimed at wondering whether all these

material sense dissimilar from section 711.	So
the problem endures without thinking of the
position of section 10 applying to State
governments.	The sanctity of those papers is, by

of difficulty.	It is sufficient if the problem be
dealt with as and when it occurs.	So a lot of the

closely circumscribed and it can be used for no	and the like. So dissemination of the material is
purpose other than the enforcement of the taxation laws.

need to have search warrants to search Commonwealth
premises.	I think, with respect to His Honour,

which underlies the need to develop and observe	procedures that will protect legal professional
privilege. Legal professional privilege is not
breached by the mere fact that documents are taken away from the solicitor's office. But if they are
taken away after having been put, for example, in
sealed envelopes that leave the opportunity for the issue of privilege to be determined without the contents being disclosed to the law enforcement
authorities, then one could say that there has been
a breach of the privilege.

enforcement authorities some of the information	there - some or all, I am not quite sure, because I
have only just had occasion to look at this - but
if I can mention it to Your Honours, it is in the
Taxation Administration Act 1953, section 3E. If I could just read subsection (1). I think it might
have been on our list, so Your Honours might have
it. Section 3E(l):

excludes public interest immunity.	The third only
and that is whether section 10, in its application arises if our submissions as to the first two fail,	to this case, so impairs the capacity of the State
to function as a government, that the Melbourne
Corporation doctrine is offended with consequential
partial invalidity of section 10 in some aspects of
its operation in respect of State governments.

department of the government.	The premises and
records are the subject of the Crown.	They are the
property of the Crown in right of the State.	It is
a true old-fashioned department in terms of
government administration.	The respondent is named

Commonwealth law retreats to allow the State	legislation to manage the fishery once joint
arrangements have been made, and that is this
fishery.

respondent is named in the warrant.	I may have
missed something.	The warrants do not appear to be

Crown or to all Crowns.	We would have thought that
Bradken Consolidated Limited v Broken Hill Pty,

the point at 122 to 123.	I notice Your Honours
have generally been given them.	I felt in the

acquired control of Pacific Western Airlines.	The
federal regulatory body, under the federal government of Alberta was obliged to notify the
commission and seek its approval to the

basis. In the last paragraph of our 12, the fundamental rationale for the rule endorsed by Sir Harry Gibbs in Bradken from United States v	approaching the question of construction on that consequences to Crown or governmental interests.
We turn now, if it please Your Honours, to the question of section 10 of the Crimes Act in its application to the Crown in right of Western
Australia. When enacted the Crimes Act contained
intended to bind the Crown in any capacity.
no express indication that its general terms were subject-matter of section 10 provides a basis for any necessary implication of intention that the
Crown be bound by the section.

Commonwealth was in contemplation one would have intention to subject some aspects of the	expected appropriate special provision at least in
respect of the courts and the Parliament.

and there is fundamental reason for that. It is a	interests of the property and rights of the Crown
rule of very long standing and while that is there,
legislatures are always enacting in the shadow of
that rule, and certainly were in 1914, and if they
do not turn their mind to it and do not deal with
it in a way that can easily and readily be done,
then there is, in our respectful submission, every justification for continuing to apply the rule.

evince an intention or a valid intention to bind	any of the three matters that we raise, does not
the government of Western Australia.

of States and, we would submit, not bound.	I hope
that was not too drawn out, if it please
Your Honour.

not have application to section 10.	So there is,
in our respectful submission, need to address this

wo~th - they vary according to whether they have	because all crayfish are not of the same commercial	the commercially desirable qualities of not - and, in particular, according to whether the fisherman
on a particular day, in a particular location is
encountering large numbers of either undersized,
that is, younger cray or crayfish in spawn, because
those locations become prized future fishing spots if their location becomes known to competitors.
I will not take Your Honours to it, but in the materials that have been provided to Your Honours' tipstaves, there is an extract from the
western Australian Parliamentary Hansard in 1979,
when section 19 was inserted, and that indicates in
three short paragraphs that the intention of
inserting it was solely to ensure the fishing

collected in this particular case. The first of these takes as a starting point	the significance to so many of the activities of
government of information and, although in some
cases, of course it is more important than others,
by and large the information needs to be accurate if government is to be effective in what it does on
the basis of information gathered. It recognizes
that in some circumstances information must be obtained in confidence if it is to be collected at
all. For example, suspected child abuse reporting,
some police complaints, and the like or, at least,
if it is to be accurate information that is
obtained, and an obvious example of that is the
census, undertaken by the Commonwealth, which seeks

nature.	The public just will not trust the
government with its confidential information.	Now,

relevance of this material can go.	You put it
together with other information.

which may be taken under a search warrant.	As we
would see it, if public interest immunity is
available then, in this case, the factual
substratum of public interest immunity and

that the gathering takes place at all or that the	in~ormation gathered is accurate, then to require
the breach of that confidence is practically to destroy the activity in that case, and the result
is that on one view an essential function of
gathering information is impaired, or on the other,
the States capacity to govern is substantially
impaired because the means of making decisions is eliminated or contaminated.