Jacobsen & Anor v Rogers

[1993] HCATrans 335

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P22 of 1993

B e t w e e n -

JOHANNES JACOBSEN and

TERENCE LESTER DIBB

Applicants

and

PETER ROGERS

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 28 OCTOBER 1993, AT 10.53 AM

Copyright in the High Court of Australia

Jacobsen 1 28/10/93

MR E.M. HEENAN, QC:  May it please Your Honours, I appear

with my learned friend, MR H.D. SEYMOUR, for the

applicants. (instructed by the Director of Public

Prosecutions (Commonwealth))

MR K.H. PARKER, QC, Solicitor-General for Western Australia:

May it please Your Honours, I appear with my

learned friend, MR R.E. COCK, for the respondent.

(instructed by the Crown Solicitor for Western

Australia)

MASON CJ:  Mr Heenan, I think that we might, in the first

instance, call on the Solicitor tci ascertain from

him why we should not grant special leave to appeal

in this case.

MR HEENAN:  May it please Your Honours.

MR PARKER: If it please Your Honours. For the purposes of

this present application, there are two issues in

this case. The first was whether section 10 of the

Crimes Act of the Commonwealth was intended to authorize the forcible entry of premises of the

Crown in any of its capacities and the seizure from

those premises of records of the Crown in any of

its capacities.

The second issue was whether that intention is

the same with respect to premises and records of

a State and premises and records of the

Commonwealth. In question in this case, of course,

were records held in premises owned by the State

and occupied by its Fisheries Department, those

records being records of the State, collected for

the purposes of administering the fisheries of the

State. These are records of ordinary public

administration. The department was not involved in

any conduct of a commercial enterprise.

The records were substantially returns from

fishermen provided under statutory compulsion.

MASON CJ: What is this leading up to: a submission that

the judgment below is right?

MR PARKER: That is one of the submissions, indeed,

Your Honour.

MASON CJ: Well, what are the other submissions?

MR PARKER:  We would put it this way, Your Honour:

section 10 is not an offence-creating provision; it

is a provision in aid of criminal investigation.

Your Honours will realize that in its original form

it authorized a justice, on the application of a

State or federal constable, to issue a warrant

Jacobsen 28/10/93

which authorized forcible entry, search and

seizure. It is expressed in the most general terms

and was not expressed to bind the Crown in any

capacity.

Only in very recent years was the Crimes Act

amended by the insertion of section 85ZQ to

expressly provide that one part of the Crimes Act,

section 7C, should bind the Crown in right of the

Commonwealth, the States and the Territories.

Now, this case does not raise issues whether

servants and agents of the Crown enjoy any immunity

from statutory offences when acting for the Crown.

The issue is whether a specific provision,

section 10, was intended to authorize entry of

Crown premises and search of those premises.

With respect to the first of the two questions

that I postulated to Your Honours, the law has
recently been considered by this Court in the case

of Bropho which, inter alia, limited the extreme reach of the rule of construction which had been

expounded in the 1947 decision in the Province of

Bombay.

With respect to the second question, the law

in Australia has been settled since the decision in

the Minister for Works v Gulson, 69 CLR 338, which was affirmed by the second limb of the decision of

this Court in Bradken v BHP, 145 CLR 107, that

within Australia the correct approach is - of

course, in the absence of express provision - to

treat the Commonwealth and State Crowns on exactly

the same basis when determining whether a law of

the Commonwealth or a State binds the Crown in any

capacity. There is an identical presumption of

legislative intention not to bind the Crown.

In earlier times, that has been expressed in

terms of the indivisibility of the Crown but the

reasoning in Bradken, particularly of

Sir Harry Gibbs at pages 122 to 123 and of

Your Honour the Chief Justice and Justice Jacobs, at page 136, grounded the principle in more modern and appropriate terms.

The Full Federal Court accepted and applied those two decisions, Bropho and Bradken. The

decision of the Court neither questions nor

undermines those decisions. It was a matter of

applying settled principle to the particular

statute.

There is no body of decision in Australia

revealing uncertainty or confusion about the

underlying principles. There is no decision of any

Jacobsen 28/10/93

Australian court to the contrary of the decision of the Full Court in this case. In fact, this is the

first time the matter appears to have fallen for

decision.

Instead of pointing to judicial error in

either principle or reasoning, the affidavit in

support of the application merely raises perceived

practical problems arising from the decision for

the Commonwealth Director of Public Prosecutions

and those who assist him. These perceived

problems, rather than revealing fundamental legal

error, tend to indicate that habits of thought and

action, at least in current times, by current

administrators, may require to be adjusted. Of

course, that· having been done, if there prevails,

in truth, any real problem for law enforcement

administration, there is always available the

remedy of legislative action.

The affidavits that are filed in support

raise, in particular, two types of matters:

firstly, other Commonwealth statutes. We would

respectfully submit that they fall to be determined

according to their terms. Those listed in the

affidavit of Seymour at page 124 of the papers

contain specific provisions expressly or expressing

variously a reach of the individual statute to the

Crown in some or all of its capacities. A decision

in this case is unlikely to determine the position

under those various statutes.

The affidavit of McAulay at page 129

identifies particular cases where the Australian

Federal Police have found it convenient or, perhaps

in some cases, necessary to use a search warrant

against premises of the Crown. The vast majority

of the examples involve federal agencies. Faced
with the reality of this decision, it may be

necessary for the Federal Police to pursue the

issue with those agencies which are said to be

nervous about their legal position in the absence

of a search warrant.

In so far as there have been cases where

warrants have been used to enable the seizure of

personal property of an officer or citizens held on

Commonwealth property, we would point out that this

decision does not preclude the use of a warrant in those circumstances. Access to the premises could

be obtained by a consent of the appropriate State

or Commonwealth agency. A warrant could properly issue and would lawfully authorize the seizure of property of a person which was held on those

premises. So, for the most part, the practical

difficulties raised could be put aside.

Jacobsen 28/10/93

At the time of the original enactment of

section 10 in 1914 the law was settled that in the

absence of express words or necessary intendment, a

statutory provision should not be taken to bind the

Crown. A decision of this Court in Roberts v

Ahern, 1 CLR 406, at pages 417 and 418 resolve

that.

BRENNAN J: What has binding the Crown got to do with it in

this case?

MR PARKER: Binding the Crown, of course, Your Honour, is

the way in which the matter is often simply

put, such as also it is simply put that the issue

is one of indivisibility.	On analysis, it is a
little more complex than the Act.	The issue is

whether a statute is intended to operate in respect

of the Crown so as to affect the property or

interests of the Crown. As I point out, section 10

is a provision not creating an offence but

authorizing the forced entry of premises and the

seizure of property from them. Where the premises

is that of the Crown and the property is that of

the Crown, the submission we have and the decision

of the court below is that there is no intention

evidenced by the statute and, according to the

ordinary principle of interpretation, there should
not be implied an intention to bind the Crown in

respect of its premises and properties.

BRENNAN J: Binding, in a sense, of subjecting the Crown to

the operation of the general law with respect to

search warrants?

MR PARKER:	Yes.
BRENNAN J:	It seems to me that that is a very different

kind of notion from the notion of binding the Crown

where that has been considered in other

constitutional cases.

MR PARKER:  Yes. The position, of course, is

BRENNAN J:  I am not saying there is not a Crown immunity,

but your argument is that in some way this statute

does not bind the Crown in a way which exposes the
Crown to the liability to suffer the operation of

the search warrant.

MR PARKER: Well, if it is expressed in terms of immunity,

Your Honour, we would say that there is no

intention of the legislature revealed or which

should be implied, that it intended to subject the

Crown, in its property and premises, to these

provisions. Your Honours will appreciate that as a

matter of historical development - and this is

canvassed in some of the reasons below - the search

Jacobsen 28/10/93

warrants were in aid of the executive to enable it

to forcibly enter, search and seize premises and,

in our submission, the premises of citizens, to

find there evidence of crime. There was,

historically, no need for the Crown to bind itself

to allow its executive to enter its own premises,

to there be able to search for evidence of crime.

BRENNAN J:  Why are not these questions which are worthy of

agitation before the High Court?

MR PARKER: In our submission, because, when analysed, they

have been decided in accordance with clear and

settled principle and that the decision, when

considered in its detail, is correct. That really

is the bottom line.

In support of that last aspect - if I could

briefly try and indicate to Your Honours our

reasons for that - we have indicated that the

primary principle of interpretation was settled in

a clear enough form for present purposes. Of

course, it has undergone some modification and has

been restated in Bropho but not in a way that

changed the basic understanding which prevailed and

was settled in 1914, that in the absence of express
words or necessary intendment, a statutory

provision should not be taken to bind the Crown.

The law was less clear whether that principle

of interpretation applied only to the enacting

Crown or to the Crown in all its capacities, and

that is the second of the two issues that were

alive in this case. The decision of this Court in

the case Reg v Sutton, 5 CLR 387, suggested that it

might be only the enacting Crown. There was,

however, a considerable body of other authority of the Privy Council and of this Court which, at that time, took the opposite view. The tension between those two views persisted through the cases until

Gulson settled it and Bradken has affirmed that the

proper approach is to treat, at least within the

Australian Federation, all Crowns on an equal footing.

BRENNAN J: That really overlooks or really masks what I took

to be the chief argument that was being advanced by

the State of Western Australia, namely, that the

immunity of State premises and State departments,

from the operation of search warrants, was an

integral and incidental part of the operation of

government which was being affected in a way which

the Constitution would not permit. In other words,

it is the implied limitation argument.

MR PARKER:  Yes. That was certainly an argument alive

before the court below but it was only reached if

Jacobsen 6 28/10/93

our primary contention fell against us. In the

event, our primary contention was upheld. So, on

this application that, as it were, Melbourne

Corporation point is not yet reached. The primary

question is what is the proper construction of

section 10 of the Crimes Act for the purposes of

this application. As to that, our submissions are

that it does not bind the Crown in any capacity,

whether State or Commonwealth, in so far as the premises and property of the Crown is affected.

I was to make the point that section 10 was

enacted at a time when there had not grown into

fashion the commercial enterprises which more

recently have become a feature of government, in

some aspects. Instead, there prevailed in 1914

traditional and conservative models of public

administration at both Commonwealth and State level

so that public administration was conducted almost

entirely by conventional public services organized

into departments subject to ministerial control and

for which ministers were fully responsible in the

Westminster sense.

The year of 1914 may have been of some

significance as well because national security was

already an issue of growing concern. On the

contention of the applicants, the section would

extend to authorize a State constable to enter the

Prime Minister's Department, search for and seize

cabinet records or to enter the office of the
Minister for Defence and seize records critical to
national security. Potential examples abound:

the entry of Government House for the seizure of

correspondence between the Prime Minister and the

Governor-General; a courthouse of the

Commonwealth for records, exhibits, judges' notes;

a federal police station, by a State police officer

investigating a distinct federal offence to seize

potential evidence, exhibits, statements or

records.

Not only did section 10 not differentiate

between premises which might be entered or between

the nature of documents and objects which might be seized, it also made no provision whatever for any

procedure by which any objection could be made to the exercise of power under section 10. It is an

administrative, not a judicial power and procedure.

There was not scope for matters of public interest

to be raised against the exercise of power.

Competing interests of the Crown or its government in any capacity were not able to be advanced

against the exercise of authority.

While the words of section 10 are wide, in our submission, that does not help the applicants

Jacobsen 28/10/93

because the words are perfectly general. They

reveal no intention to bind the Crown and the

settled principle, in its Bropho form or in any of
its earlier forms, applied naturally to words of

general wide import simply to exclude from their

reach the premises and property of the Crown.

Nor, we would submit, especially according to

the values and experience of 1914, could it be

concluded that the subject-matter necessarily

required that the Crown be bound. Federal

government premises and property could be made

available for law enforcement purposes by

administrative intervention. That may be less true

today but it is the intention in 1914 which is the

issue and as between State and Federal governments,

there is sound reason for the view that the

legislature would have expected that traditional

comity and co-operation would have met the

practical needs of law enforcement.

MASON CJ: These arguments may be very persuasive before the

Full Court but I have some difficulty myself,

Mr Solicitor, in concluding that they are arguments that must necessarily prevail.

MR PARKER:  The contention, of course, Your Honour, is that

not only is the decision below based squarely on

established principle and fault in its application

is not demonstrated but the result reached is an

appropriate and correct result. So, I am

necessarily rehearsing, albeit very briefly, the
issues that point to the correctness of that
result. Perhaps the brevity gives them a lack of
conviction but we would submit that when they are

all put together there is no reason to form the

view that the decision below is incorrect.

There is a little more that we would put in

support of that. I was making the point that

administrative intervention would make available

federal premises and, comity and co-operation,

State premises. That would not in 1914 have been

perceived as a strange result. At least in the

case of Western Australia, that was the position

until this case. There had never previously been

need on any occasion for a warrant to issue to
enable Federal Police or federal investigations to

secure access to State premises or records.

It is only the fact that these particular

records are subject to very specific and embracing

confidentiality provisions, assured by the State

Fisheries Act, that there was difficulty and

resistance in this particular case. The Fisheries

Department were concerned that what they perceived

to be a very considerable public interest in the

Jacobsen 28/10/93

confidentiality of the records and the statutory

obligations of the State supporting that ought to

prevail. What they found, that there was not even

a procedure to enable that to be considered. But,

absent that, there had not been any difficulty in

some 90 years of Federation in the case of Western

Australia.

There is some affidavit evidence in support of

the applicants' position which raises, in general
terms, that there have been, in a number of cases,
the use of search warrants to gain access to State

and Commonwealth premises. That fails to indicate

how recent has been the development of that

practice and there is no indication that anywhere

it is a practice of long standing. That tends, in

our submission, to support the contention that in

1914 the Parliament would not have thought it

strange to leave to comity and co-operation between

governments the co-operation needed in support of

criminal investigation and law enforcement.

For those reasons, we would submit that the

decision below is correct. We apprehend that it

may be contended that the decision in Bropho itself

and/or the enactment of the Australia Act may call

in question the authority of the second limb of

Bradken, that is what is often described as the

indivisibility of the Crown for the purposes of the

rule of construction. In our respectful

submission, the Bropho decision dealt with the

changing circumstances and the breadth of activity

in which a modern government, in its various

manifestations, engages in activities that reach

into the commercial world and step away from the

ordinary and confined business of government and

sought then to modify the rule that had developed

in the Bombay case so that there was a more

appropriate and realistic approach to deciding

whether Parliament intended the immunity of the

Crown to extend to the Crown in all its guises and

engaged in all its activities.

That is equally appropriate in its application to the Federal or the State Crown and in its

application in deciding what is the body of law

applicable in a particular part of Australia to

each Crown which holds sway in respect of that

area. So that it does not follow from the Bropho

decision that there is any need to reconsider the

quite distinct principle whether, within Australia,

both Crowns should be treated alike.

The Australia Act had the effect of removing

the third Crown, the Imperial Crown, from having

sway or authority within any part of Australia.

They have lessened what was previously the problem

Jacobsen 9 28/10/93

rather than increased or changed its nature, so

that we would submit that neither of those reasons,

the Bropho nor the Australia Act, provide any basis
for calling in aid the decision in the second limb

of Bradken.

They would be our submissions, in

anticipation, if it please the Court.

MASON CJ:  Yes, thank you, Mr Solicitor. The Court need not trouble you, Mr Heenan.

There will be a grant of special leave to

appeal in this case.

AT 11.22 AM THE MATTER WAS ADJOURNED SINE DIE

Jacobsen 10 28/10/93