Partyka v Director of Public Prosecutions
[2024] WASC 273
•31 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PARTYKA -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 273
CORAM: MUSIKANTH J
HEARD: 5 JUNE 2024
DELIVERED : 31 JULY 2024
FILE NO/S: SJA 1100 of 2023
BETWEEN: JOANA VERONIKA PARTYKA
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
For File No: SJA 1100 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A MAUGHAN
File Number : PE 13912/2023 and PE 42993/2023
Catchwords:
Criminal law - Appeal against conviction - Data access order - Collateral challenge - Whether data access order may be challenged in criminal proceedings on grounds other than facial invalidity
Criminal law - Appeal against conviction - Statutory construction - Criminal Investigation Act 2006 (WA) s 58 and s 59(1)(a) - Whether magistrate must examine search warrant to be satisfied of 'lawful possession' or 'lawful access' to seized device(s)
Criminal law - Appeal against conviction - Statutory construction - Criminal Investigation Act 2006 (WA) s 61(2) - Meaning of 'reasonable excuse' - Whether appellant had 'reasonable excuse' for not obeying data access orders - Turns on own facts
Legislation:
Criminal Investigation Act 2006 (WA) s 58, s 59, s 61, s 151
Interpretation Act 1984 (WA) s 8Result:
Leave granted with respect to Ground 1.
Leave refused with respect to Grounds 2, 3, 4 and 5
Appeal dismissed.Category: B
Representation:
Counsel:
Appellant : Mr C Mofflin & Ms Z M Burgess Respondent : Mr T B L Scutt Solicitors:
Appellant : Environmental Defenders Office Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s):
A v Hayden (No 2) [1984] HCA 67; (1984) 156 CLR 532
Ali v Minister of Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627
Australian Crime Commission v LB [2009] NTSC 43; (2009) 25 NTLR 30
Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Bennett v Carruthers [2010] WASCA 131
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Commissioner of Police (Qld) v Barbaro [2020] QCA 230; (2020) 6 QR 186
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348
Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307
McArthur v Williams [1936] HCA 10; (1936) 55 CLR 324
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Parker v Churchill (1985) 9 FCR 316
R v LB [2011] NTCCA 4; (2011) 246 FLR 466
Selby v Pennings [1998] WASCA 224; (1998) 19 WAR 520
Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177
Smorgon v ANZ Banking Group Ltd [1976] HCA 53; (1976) 134 CLR 475
Strahan v Brennan [2014] WASC 190
Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454
The State of Western Australia v Dillon [2018] WADC 72
Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506
MUSIKANTH J:
1The appellant was convicted, following a trial, of failing to obey two data access orders (orders) contrary to s 61(2) of the Criminal Investigation Act 2006 (WA) (Act).
2The orders:
(1)Were issued by a magistrate on the application of a police officer, and served on the appellant sometime after the 'target devices' mentioned in the orders, namely a laptop and mobile phone, were seized by police whilst executing a search warrant (warrant)[1] at the appellant's home.
(2)Required the appellant to provide reasonable and necessary information or assistance to the police officer to allow the officer to gain access to any data on the seized devices, and/or to copy such data to another storage device or reproduce any of the data on paper.
[1] Annexure A.
3The appellant did not obey the orders.
4At the time the appellant was served with the orders she was employed by an Australian political party (Party) as its national communications officer and by the office of an Australian Senator (Senator).
5At trial, the appellant relied on two defences:
(1)The warrant pursuant to which the devices had been seized was invalid on its face and the orders were therefore made in excess of jurisdiction and void.
(2)The appellant had a 'reasonable excuse' for not obeying the orders arising from contractual obligations which she owed to her two employers.
6The appellant now seeks leave to appeal against her conviction resulting from the primary court's rejection of her defences.
7The appellant advances five grounds of appeal.
8Leave must not be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding.
9For the reasons which follow, I would grant leave with respect to Ground 1, refuse leave with respect to the remaining grounds, and dismiss the appeal itself.
The issues
10The issues I must decide emerge from the appellant's grounds as clarified by her submissions.
11They are whether:
(1)An accused person charged with disobeying a data access order may, at their criminal trial, challenge the order on grounds other than facial invalidity (Ground 1).
(2)The appellant was required to obey the orders (but for any 'reasonable excuse') (Ground 2).
(3)The trial magistrate misdirected himself:
(a)as to the meaning of 'reasonable excuse' for the purpose of s 61(2) of the Act (Ground 3); and/or
(b)by treating the appellant's failure to invoke s 151 of the Act as determinative of whether she had a 'reasonable excuse' for not obeying the orders (Ground 4).
(4)The appellant had a 'reasonable excuse' for not obeying the orders (Ground 5).
Statutory context
12The evident purpose of the Act is to provide powers for the investigation and prevention of offences and related matters.
13Section 61, together with s 57 to s 60, comprise pt 7 of the Act which is headed 'Gaining access to data controlled by suspects'.
14Relevantly:
(1)A person served with a data access order and who, without reasonable excuse, does not obey it commits a crime (s 61(2)).
(2)The onus of proving a reasonable excuse is on the accused (s 61(2)).
(3)Privilege against self-incrimination is not a defence (s 61(3)).
(4)An application for a data access order:
(a)may only be made by a police officer or public officer (s 58(1));
(b)must be made to a magistrate (s 58(2)); and
(c)must do all of the following things:
(i)state the applicant's full name and official details (s 58(3)(a));
(ii)state the serious offence that is suspected to have been committed and in relation to which the order is wanted (s 58(3)(b));
(iii)state the grounds on which the applicant suspects the offence has been committed (s 58(3)(c));
(iv)describe with reasonable particularity the data storage device ('target device') to which the applicant wants access (s 58(3)(d));
(v)explain how the applicant has possession of or access to the 'target device' (s 58(3)(e));
(vi)state the grounds on which the applicant suspects any data the 'target device' may contain is or may be a thing relevant to the serious offence (s 58(3)(f));
(vii)state the name of the person to whom the order wanted will apply (the 'target person') (s 58(3)(g));
(viii)state the grounds on which the applicant suspects the 'target person' has committed the serious offence (s 58(3)(h));
(ix)state the grounds on which the applicant suspects the 'target person' has knowledge relevant to gaining access to any data the 'target device' may contain (s 58(3)(i)); and
(x)include any other information that is prescribed (s 58(3)(j)).[2]
[2] Neither party suggested that any other information has relevantly been prescribed.
(5)On an application made under s 58, a magistrate may issue a data access order if satisfied of all the following:
(a)that the applicant has lawful possession of or lawful access to the target device (s 59(1)(a));
(b)that, in respect of each of the matters in s 58(3) that the applicant suspects (other than those in s 58(3)(i)), there are reasonable grounds for the applicant to have that suspicion (s 59(1)(b)); and
(c)that the 'target person' has knowledge relevant to gaining access to any data the target device may contain (s 59(1)(c)).
(6)A data access order must among other things:
(a)describe the data storage device to which the order relates (s 59(2)(c);
(b)order that the person provide information or assistance that is reasonable and necessary to allow the applicant to gain access to any data the device may contain, to copy any such data to another storage device and/or reproduce any such data on paper (s 59(2)(d); and
(c)state the date on or before which the order must be obeyed (s 59(2)(e)).
(7)If a magistrate refuses to issue a data access order, the magistrate must record on the application, among other things, the reasons for the refusal (s 59(4)).
Can a data access order be challenged on grounds other than 'facial invalidity' by an accused charged with disobeying the order? (Ground 1)
15At trial the appellant contended that the orders were void because the warrant pursuant to which the devices were seized was itself invalid on its face.
16The appellant's argument was effectively a 'collateral challenge'. That is, a challenge during a criminal trial to the validity of an administrative act rather than a challenge by way of separate judicial review proceedings.
17The trial magistrate rejected the appellant's challenge as 'impermissible' on the basis that such collateral challenges were limited to the validity of the instrument 'on its face'.[3]
[3] Magistate's reasons for decision (Reasons) [17] - [19].
18In support of this conclusion, the trial magistrate relied upon Murphy v The Queen,[4] Ousley v The Queen,[5] and The State of Western Australia v Dillon.[6]
[4] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94, 105.
[5] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 80, 85.
[6] The State of Western Australia v Dillon [2018] WADC 72 [49].
Murphy, Ousley and Dillon
19 Murphy concerned applications for special leave to the High Court by three applicants convicted of murder and other offences. One of the appeal grounds related to the trial judge's refusal to allow the applicants' counsel to investigate the circumstances leading to the grant of a warrant granted under s 18 of the Listening Devices Act 1984 (NSW) where a witness had given evidence of a conversation with one of the applicants while the witness was equipped with a listening device.
20In their reasons, Mason CJ and Toohey J observed that the admissibility of the evidence of the witness depended on the 'existence' of the warrant, not on the 'sufficiency of the grounds for granting it'.
21In this regard, their Honours referred to the following passage from the judgment of Dixon, Evatt and McTiernan JJ in McArthur v Williams:[7]
But it has never been considered that the validity of the warrant could depend upon the nature or sufficiency of the materials upon which a magistrate granted the warrant if there was an information on oath before him which, however irregular, was not a nullity.... In general the sufficiency or character of materials which are required for the purpose of exercising a discretion is not a matter upon which the validity of the discretionary act is made to depend.
[7] McArthur v Williams [1936] HCA 10; (1936) 55 CLR 324, 365 - 366.
22In Ousley, the appellant had been convicted at trial of trafficking in methylamphetamine.
23At his trial, the appellant had sought to challenge the admission of evidence against him obtained through listening devices on the ground that the warrant authorising the use of the listening devices, pursuant to s 4A of the Listening Devices Act 1969 (Vic), was invalid. The recordings were admitted into evidence and the accused was convicted.
24By majority, the High Court held that the evidence obtained under the authority of the warrants was not improperly admitted.
25All members of the Court held that the validity of such a warrant, as an administrative act, was open to collateral review by a trial judge. However, a majority (Toohey, Gaudron and Gummow JJ) considered that the scope of such a challenge was limited.
26Toohey J held that such a challenge was limited to defects on the face of the warrant.[8] Gummow J reached a conclusion to like effect.[9] Similarly, Gaudron J concluded that the validity of such a warrant depended upon it having been 'regularly issued', and not on the sufficiency of the material supporting the application for its issue.[10]
[8] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 80.
[9] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 127.
[10] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 87.
27As the appellant correctly observes, the judgments in Ousley were expressed in 'general terms' regarding the right to bring a collateral challenge of administrative acts. Further, the limitations to collateral review reflected in the judgments of Toohey, Gaudron and Gummow JJ were only expressly stated to apply to 'warrants'.
28In my view Murphy and Ousley are distinguishable from this matter for at least two reasons.
29 First, unlike this matter Murphy and Ousleyboth concerned challenges to the validity of listening device warrants and not data access orders.
30 Secondly, both Murphy and Ousleyinvolved evidentiary challenges in circumstances where the validity of the challenged instrument was neither an element of the offences with which the accused were charged nor a condition of the availability of the power on which those offences depended. However, in the present case, the validity of the challenged instruments was central to the charges against the appellant in that the charges concerned alleged breaches of the orders themselves.
31 Dillon concerned an accused charged with drug-related offences. At trial, a challenge was raised to the validity of a data access order with which the accused had failed to comply.
32The prosecution sought to rely upon the accused's refusal to comply with the order as evidence that the accused knew that the contents of, or data on, the target device would show that the accused was involved in the offending the subject of the prosecution.
33Herron DCJ concluded that a challenge to such an order 'in collateral proceedings' was, as with a listening device warrant, limited to the validity of the order 'on its face'.
34His Honour cited Ousley in support of that proposition.
35However, as with both Murphy and Ousley (and unlike this matter) the validity of the challenged instrument in Dillon was also not central to the charges.
36It follows that Dillon is likewise distinguishable.
WA Supreme Court decisions
37At the appeal hearing, the parties also referred to several decisions of this Court including Selby v Pennings[11] and Australian Crime Commission v Marrapodi.[12]
[11] Selby v Pennings [1998] WASCA 224; (1998) 19 WAR 520.
[12] Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351.
38 Selby concerned an appeal before the Full Court (Ipp, Wallwork and Owen JJ). The appellant had been charged with entering onto a 'temporary control area', being an area of a State forest classified as such by a government Minister by notice published in the Government Gazette.
39The trial magistrate dismissed the complaint, finding the notice was ultra vires and the accused had no case to answer. The magistrate's decision was overturned by a single judge on appeal to this Court.
40On appeal from the single judge's decision, Ipp J (Owen J relevantly agreeing):
(1)Rejected an argument by the State to the effect that the principles in Ousley applicable to warrants govern all administrative acts, not only those relating to warrants, such that administrative acts of 'latent invalidity' are not susceptible to collateral challenge.
(2)Noted there were 'special rules' relating to collateral attacks on warrants, as explained in McArthur v Williams.[13]
(3)Concluded that the limitations on collateral challenges to (certain) warrants have 'no application to the principles applicable to collateral challenges to other forms of administrative acts'.[14]
[13] See the passage extracted at paragraph 21 above.
[14] Selby v Pennings [1998] WASCA 224; (1998) 19 WAR 520, 534 - 536.
41 Marrapodi[15] is a decision of the Court of Appeal. The respondents had been charged, in the District Court, with refusing to answer questions before an examiner of the Australian Crime Commission (ACC). The respondents took out witness summonses for the ACC to produce documents said to be relevant to the validity of the summons compelling them to attend before the examiner.
[15] Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351.
42The substantive issue before the Court of Appeal was whether the witness summonses should be set aside on the ground that production would not serve any legitimate forensic purpose.
43According to the ACC, there was no such purpose. This was because the validity of the summons to attend was not an element of the offence with which the respondents had been charged.
44In the alternative, the ACC argued that all that was required was for the summons to attend to be valid on its face and that an attack which went behind their face was a collateral challenge not permitted in the criminal proceedings.
45Martin CJ was in dissent, having concluded that there was no legitimate forensic purpose to the respondents' summonses to produce documents, the validity of the summons to attend not being an element of the offence. His Honour did not address the ACC's alternative argument in his reasons.
46McLure P and Allanson J effectively found that the respondents did have a legitimate forensic interest in the production of the documents the subject of the witness summonses.
47Each of McLure P and Allanson J also expressed views concerning the circumstances in which a collateral challenge could be raised, in criminal proceedings, with respect to the validity of an administrative act.
48Relevantly, McLure P opined that:[16]
(1)The requirement for 'formal validity' appeared to have developed in the context of search warrants and extended to other types of warrants including those required under listening devices legislation.
(2)The policy basis for the requirement that a warrant be valid 'on its face' was the protection of fundamental common law rights of the person named in the warrant.
(3)Although in Ousley Toohey, Gaudron and Gummow JJ had limited a permissible collateral challenge, in a criminal trial, to jurisdictional errors appearing on the face of the warrant, this did not exhaust the appellant's review rights. Any other claim of jurisdictional error could be litigated in separate judicial review proceedings (if still available).
(4)It could not, however, have been intended that separate judicial proceedings were required in cases where a valid administrative act was an element of the offence charged, or a condition of the availability of the power on which the offence depended.
[16] Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 [44] - [46].
49In the last-mentioned respect, her Honour noted that both Murphy and Ousley had concerned the admissibility in a criminal trial of evidence obtained pursuant to a warrant issued under listening devices legislation.
50In his reasons, Allanson J among other things:[17]
[17] Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 [110], [117] read with [113], [135], [138 ] - [139], [141] - [142].
(1)Referred, without disapproval, to conclusions by Southwood J in Australian Crime Commission v LB,[18] to the effect that:
[18] Australian Crime Commission v LB [2009] NTSC 43; (2009) 25 NTLR 30.
(a)the validity of an administrative act could be challenged in criminal proceedings if it was beyond the statutory power of the person who performed it; and
(b)the principles developed in relation to collateral attack on warrants did not apply to the challenge to the administrative act of issuing a summons of the kind under consideration by his Honour.
(2)Described as 'persuasive' a conclusion by the Court of Criminal Appeal of the Northern Territory in R v LB[19] to the effect that the power to compel attendance before the ACC was conditioned upon a valid summons.
(3)Considered there was no sound basis to restrict a collateral challenge to a defect appearing on the face of the summons to appear if the challenge was one which went to the power of the examiner to issue the summons.
(4)Concluded that:
(a)if the examiner had not lawfully exercised his power in issuing the summons to attend, then none of the respondents was a person 'required' to attend before the examiner; and
(b)'even if' the existence of a valid summons was not an element of the charge, the validity of the summons could still lawfully be questioned in other ways in the criminal proceedings (including by seeking a stay order).
[19] R v LB [2011] NTCCA 4; (2011) 246 FLR 466.
51According to the appellant, the validity of the data access orders was an 'element of the offence' of which she was convicted.
52Consequently, the appellant says it was open for her to bring a collateral challenge to the validity of those orders at her criminal trial, consistent with the approach in Selby and that of the majority in Marrapodi. According to the appellant, the magistrate therefore erred in holding that he did not have jurisdiction to determine such a challenge.
53The respondent resists the appellant's contentions, in substance, on the following basis:
(1)Despite Marrapodi, collateral challenges in a criminal trial are, in the case of 'warrants', still limited to jurisdictional errors appearing on the face of the warrant consistent with reasons of the majority in Ousley.
(2)Data access orders ought to be treated in the same way as warrants.
(3)In this regard, there are 'obvious similarities' between the two including: (a) a data access order is, like many warrants, also sought from a judicial officer; (b) as with search warrants, written reasons are only required in relation to a data access order if the order is refused; and (c) the manner by which such orders are required to be sought and in which information is to be provided.
(4)Further, it would be wrong to distinguish between data access orders and search warrants on the basis that the former are 'coercive' while the latter are merely 'facilitative'.
(5)In this connection, a police officer may, pursuant to a search warrant alone, compel the occupier of a 'target place' to provide information or assistance to access a device or equipment to access records, on pain of criminal sanction if refused.[20]
(6)This further power, to compel an occupier to provide information or assistance, is merely a 'subset' of the primary power afforded by the warrant itself; namely, access to an area to search and then seize certain items.
(7)Moreover, Marrapodi was not a 'collateral challenge case' but one which centred around whether the respondents had a legitimate forensic interest in the production of the documents in question, and the remarks of McLure P relating to collateral challenges were obiter.
(8)To the extent to which any of those remarks might be read as suggesting that the principle espoused by Toohey, Gummow and Gaudron JJ in Ousley would not apply in the case of a warrant where its breach was an element of the offence, such a conclusion would be inconsistent with the ratio in Ousley.
[20] Act, s 44(2)(e)(ii) and s 153(1).
54I do not agree for the following reasons.
55 First, as already noted, the judgments in Ousley were expressed in 'general terms' as to the right to bring a collateral challenge to administrative acts, and the limitations to collateral review reflected in the judgments of the majority were only expressly stated to apply to 'warrants'.
56Moreover, Ousley did not involve proceedings in which a valid administrative act was either an element of the offence charged or a condition of the availability of the power on which the offence depended.
57Nor would it seem that any of the authorities upon which Toohey, Gaudron or Gummow JJ relied concerned such proceedings.[21]
[21] McArthur v Williams (arrest warrant); Murphy (listening device warrant); Love v Attorney-General (NSW) [1990] HCA 4; (1990) 169 CLR 307 (listening device warrants); Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 (listening device approval); Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 (telecommunication interception warrant); Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 (telecommunication interception warrant).
58In my view the above considerations alone more than sustain McLure P's observation, in Marrapodi, that it could not have been intended that separate judicial proceedings were required in such circumstances. It follows that I do not consider her Honour's observation to have been in any way inconsistent with the conclusions of the majority in Ousley.
59 Secondly, and in any event, I do not consider that a data access order can be characterised in the same way as a search warrant for the purposes of any application of the principle which emerges from those conclusions.
60The purpose and function of a search warrant is to permit to be done that which is otherwise prohibited. The purpose and function of a data access order is to compel a 'target person' to do something on pain of penalty.
61The fact that an ancillary power happens to be available to an officer executing a search warrant, to order an occupier of a 'target place' to provide reasonable or necessary assistance with respect to certain matters,[22] does not detract from the distinction. Such an ancillary power does not derive from the warrant, and any non-compliance with such an order is not a breach of the warrant itself.
[22] Section 44(2)(e)(ii).
62It follows, in my view, that there is nothing in the nature of a data access order to suggest that it ought be treated any differently from either the administrative act considered by the Full Court in Selby, or from the summons considered by the majority of the Court of Appeal in Marrapodi.
63In all the circumstances, I consider that an accused person charged with an offence under s 61(2) of the Act may challenge the data access order said to have been disobeyed, on grounds other than facial invalidity, at their trial.
64I would therefore grant leave with respect to Ground 1.
Was the appellant required to obey the orders? (Ground 2)
65Having held a collateral challenge was unavailable, the trial magistrate concluded the orders were valid on their face and the appellant was required to comply with them.[23]
[23] Reasons [20].
66The appellant says his Honour was wrong in reaching this conclusion because:
(1)The warrant, under which the target devices were seized, was invalid on its face.
(2)Since the warrant was invalid on its face, the magistrate who issued the data access orders could not have been satisfied the police had lawful possession of (or access to) the target devices when deciding to issue the orders. The orders were therefore nullities.
67It is convenient to consider these two elements in reverse order.
Could the magistrate have been satisfied the police had lawful possession of (or access to) the target devices?
68In connection with this element, the appellant in effect says the following:
(1)The Act draws a distinction between those matters where the magistrate issuing a data access order need only be satisfied the applicant has a 'reasonable suspicion',[24] and those where the magistrate must be satisfied of an 'actual state of affairs'.
(2)One of the matters falling into the latter category is the applicant having lawful possession of (or lawful access to) the target device.[25]
(3)This a 'subjective jurisdictional fact'.
(4)A decision based on a 'subjective jurisdictional fact' may, relevantly, be challenged on the basis that: (a) the decision maker failed to take a relevant consideration into account;[26] and (b) there was no evidence at all upon which the decision could have been formed.[27]
(5)The terms or contents of the warrant were a relevant consideration, and the issuing magistrate failed to take that consideration into account.
(6)There was also no evidence at all before the issuing magistrate upon which a decision to issue those orders could have been formed.
[24] Eg. s 58(3)(c) and s 58(3)(h), read with s 59(1)(b).
[25] Section 59(1)(a).
[26] Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353; Ali v Minister of Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627.
[27] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 656 - 657 [144] - [145] (Gummow J); R v LB [31].
Failure to take a relevant consideration into account?
69The appellant's contentions with respect to this topic may be summarised as follows:
(1)Although the issuing of a data access order involves performance of an administrative rather than a judicial function, 'careful attention' must still be given to the requirements for its issue. [28]
(2)This is particularly so considering: (a) the legislative choice of vesting the power to issue such an order only in a magistrate (and not a justice of the peace); (b) a data access order being coercive rather than merely facilitative; and (c) the target individual being exposed to the possibility of imprisonment (in the event of non-compliance).
(3)The Act requires an applicant for a data access order to explain, on oath,[29] how the applicant had possession of or access to the device.[30]
(4)Further, s 59(1)(a) of the Act requires the issuing magistrate to be satisfied that the applicant for the order has lawful possession of (or lawful access to) the target device.
(5)Without actually examining the warrant pursuant to which any target device was seized, an issuing magistrate could have 'no way of independently confirming' whether: (a) the location at which the search was conducted was the 'target place' of the warrant; (b) the target device was the 'target thing' of the warrant; or (c) the warrant was valid on its face (or even existed).
(6)It follows that where, as here, lawful possession of (or lawful access to) the target device is said to arise in consequence of execution of a valid warrant: (a) the contents of the warrant are a relevant consideration; and (b) the issuing magistrate must therefore actually examine the warrant before considering whether to issue such an order.
(7)Here, the warrant was not before the issuing magistrate. Nor was the magistrate otherwise taken to the warrant before granting the data access orders.[31]
[28] Cf. Parker v Churchill (1985) 9 FCR 316, 322.
[29] Section 13(6) and s 58(2).
[30] Section 58(3)(e).
[31] This was in substance common ground: cf. respondent's written submissions [30]. See also trial ts 22 - 24.
70Before the ground of failure to consider a relevant matter can be made out, the decision-maker must be bound to take that matter into account.[32]
[32] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 [15(a)] (Mason J).
71The factors a decision-maker is bound to consider is determined by construction of the statute conferring the discretion. [33]
[33] Peko-Wallsend [15(b)] (Mason J).
72Section 59(1) of the Act is clear in its terms. It expressly sets out which matters a magistrate must consider in deciding whether to exercise the statutory power to issue a data access order.
73One of those mandatory considerations is satisfaction as to the lawfulness of the applicant's possession of (or access to) the target device: s 59(1)(a).
74However, the discretion is otherwise unconfined.
75It follows that for the appellant to establish that the issuing magistrate was bound to consider the terms of the warrant, she must show that such a requirement is implicit in the subject matter, scope and purpose of the Act.[34]
[34] Peko-Wallsend [15(b)] (Mason J).
76In my view none of the matters relied upon by the appellant leads to such a conclusion.
77The evident purpose of the Act is to provide powers for the investigation and prevention of offences and related matters, while the evident purpose of pt 7 is to facilitate access to data controlled by suspects.
78Part 7 provides a mechanism for obtaining such access: a data access order made by a magistrate in circumstances where the officer applying for the order already has lawful possession of (or lawful access to) the device said to contain the data.
79As is common ground, although the power to grant such an order is invested in a judicial officer the task is an administrative one.
80As the respondent correctly submits, the statutory framework contemplates 'primacy' being given to evidence by the applicant 'on oath': s 58(2) read with s 13.
81Section 58(3) sets out all the matters which must be contained in the application for a data access order.
82Relevantly, for present purposes, all an applicant is required to do is to 'explain how' the applicant came to be in possession of, or to have access to, the device in question: s 58(3)(e).
83Importantly, s 58(3) does not by its terms require an applicant to provide a copy of any search warrant in consequence of which possession of (or access to) the device may have been obtained.
84This is perhaps unsurprising given seizure following execution of a search warrant is but one of many ways in which an officer may lawfully gain possession of (or access to) a target device under the Act.[35]
[35] Cf. for example s 26(3), s 33(1), s 35(2), s 39(1), s 39(2), s 68(1), s 69(6), s 32(5), s 133(7) and s 134(5).
85In my view, once it is accepted that the Act does not require a copy of a search warrant to be provided as part of an application for a data access order, it must necessarily follow that there is no scope to imply that the magistrate is bound to consider its terms in determining whether they have reached the requisite degree of satisfaction for the purposes of s 59(1)(a). Nor is there scope to imply that the magistrate is bound to call for a copy of such a warrant.
86I say this particularly in circumstances where the power of a magistrate to grant a data access order is, by the express terms of s 59(1), enlivened '[o]n application made under section 58'.[36]
[36] Section 59(1), chapeau. Emphasis added.
87In short, the material before the magistrate comprising the application is the foundation upon which any exercise of the power rests.
88It follows, in my view, that s 59(1) does not on its proper construction require the magistrate do any more than consider the material which is in the application before them.
89Nor do I consider that a construction of the kind proposed by the appellant is compelled by the fact that only a magistrate may grant a data access order, or by the fact that such an order may be 'coercive' coupled with the possibility of imprisonment in the event of non-compliance.
90In my view, the legislative choice of only permitting a magistrate to grant such an order may just as readily be attributed to a legally qualified person being perhaps better placed than a layperson to determine if a police or public officer has lawful possession of or access to a target device.
91Nor does the fact that such an order may be 'coercive' or the possibility of imprisonment in the event of non-compliance of itself support such a construction. There are many other provisions in the Act which might be characterised in a similar way.[37] None appear to contemplate the level of scrutiny which the appellant's construction of s 59(1) proposes.
[37] Eg. s 38B(1)(e) read with s 38C and s 27, s 44(2)(d), s 44(2)(g), s 47(2), s 65 and s 69 read with s 153.
92Nor do I accept the contention that, in considering an application for a data access order, a magistrate is required to 'independently confirm' the location at which the search was conducted was the 'target place' of the warrant, that the target device was the 'target thing' of the warrant, or that the warrant was valid on its face.
93As the respondent submits, such a requirement would be both onerous and of uncertain scope. It finds no home in the subject matter, scope or purpose of the Act.
94Indeed, and as the appellant properly accepts, s 59(1) reflects a drafting technique designed to shield the relevant jurisdictional fact from curial review.[38]
[38] Cf. Ali [42].
95The fact that the provision does so lends further support to a conclusion that the Act does not contemplate such an open-ended inquiry.
96In my view such a conclusion is all the more compelling in circumstances where written reasons are only required to be given by the magistrate if a data access order is refused.[39]
[39] Section 59(4).
97In summary, and for the above reasons, I consider that on a proper construction of the Act:
(1)The only factors which a magistrate is bound to consider in deciding whether to exercise the discretion to grant a data access order are those expressly mentioned within s 59(1) itself.
(2)With respect to each of those factors, it is a matter entirely for the magistrate's own subjective deliberation as to what material to consider, and as to the weight to be attached to any such material, in determining whether the requisite state of satisfaction has been reached.
(3)Any failure by an issuing magistrate to consider (or call for) any search warrant pursuant to which the target item may be said to have been seized would not of itself render a data access order void.
No evidence upon which decision could have been formed?
98It is common ground that the magistrate did not request, and was not given, a copy of the warrant before issuing the data access orders.
99The appellant contended that a 'no evidence' challenge involves a 'higher bar' than a challenge based on a failure to consider a mandatory relevant consideration.
100I agree.
101The 'no evidence' ground traditionally requires that there be not a 'skerrick' of evidence.[40]
[40] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398, [17].
102As has been pointed out, '[i]f there is some evidence, no matter how unconvincing, and no matter how overwhelmed it might have been by evidence to the contrary, one must turn to other grounds'.[41]
[41] Aronson & al, Judicial Review of Administrative Action and Government Liability 7th edition 2022 Lawbook Co), [5.270].
103At the appeal hearing, the appellant properly accepted there was an 'available inference' that, in the application for data access orders which was before the issuing magistrate, the applicant had 'in some form' asserted that the target devices had been 'seized in execution of a search warrant'.[42]
[42] ts 57.
104In my view, the availability of such an inference alone would have been sufficient to avert any successful challenge based on a 'no evidence' ground; even if, as the appellant contends, this was 'the limit of the evidence at trial as to the material that was before the issuing magistrate'.[43]
[43] ts 57.
105Accordingly, I do not accept that there was 'no evidence' upon which the decision to issue the data access orders could have been formed.
106For at least this reason, it would seem of little relevance whether or not the prosecution may have 'elected' not to tender the data access order application(s) or to lead any 'other' evidence in chief concerning what may have been before the issuing magistrate.[44]
[44] Appellant's written submissions [55].
Was the warrant invalid on its face?
107As would by now be apparent, I do not consider the appellant has established either that:
(1)the contents of a search warrant are a matter which a magistrate issuing a data access order is bound to consider; or
(2)there was no evidence before the issuing magistrate in this matter upon which such a decision could have been formed.
108Accordingly, it is unnecessary for me to determine whether the warrant in this matter was invalid on its face.
109If I had been required to have done so, it is unlikely that I would have so found.
110Whilst the warrant was perhaps not a model of clarity, it would seem to me that once the 'suspected offence(s)' are read conjunctively in the context of the instrument viewed as a whole, their formulation was both intelligible and sufficiently particularised to convey, to all concerned, the object of the search, the limits of its scope, and what was being sought.[45]
[45] Cf. Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177 [26] - [27].
111In all the circumstances, I would not grant leave with respect to Ground 2.
Did the trial magistrate misdirect himself as to the meaning of 'reasonable excuse' (Ground 3) and/or by treating the appellant's failure to invoke s 151 of the Act as determinative of whether she had a 'reasonable excuse'? (Ground 4)
112The Act does not define 'reasonable excuse', for the purposes of its application in the context of s 61(2), and its meaning in that context has apparently not been the subject of previous judicial consideration.
113According to the appellant, the trial magistrate misdirected himself as to the meaning of the expression by erroneously relying on the definition of 'reasonably suspects' in s 4 (read with s 3) of the Act.
114In this regard the appellant draws on what his Honour says at [31] of his Reasons; namely:
Reasonable excuses (sic) defined by s 4 of the [Act] as follows:-
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time to suspect the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively are reasonable.
115The appellant also points to Reasons [38]. There, his Honour concludes that the appellant's 'failure to invoke the protection of s 151 ... was not reasonable, such that a defence under s 61(2) was not available to her'.
116In this regard:
(1)Section 151 (of the Act) sets out a procedure which is to apply if a record is seized or a business record is produced,[46] and where:
[46] Under an order to produce a business record issued under s 53.
(a)a person entitled to possession of the record claims that all or some of the information in it is privileged because of legal professional privilege and/or public interest immunity privilege; or
(b)the officer seizing the record (or to whom it is produced) reasonably suspects that all or some of the information in it is privileged for one of those reasons.[47]
(2)In either case:
(a)the record must be secured as prescribed, including 'in a manner ... that prevents access to the information in it by any person who would not be entitled to access the information if it were privileged';[48]
(b)an application must be made by the officer in charge of the investigation to the Magistrates Court to decide whether the information is privileged;[49] and
(c)that officer must deliver the record into the custody of the court.[50]
[47] Section 151(2) read with s 151(1).
[48] Section 151(3)(c). Emphasis added.
[49] Section 151(4).
[50] Section 151(4).
117According to the appellant:
(1)It may be inferred from Reasons [38] that the trial magistrate concluded that the appellant had failed to prove that she had a 'reasonable excuse' for not complying with the orders because she did not invoke s 151.
(2)His Honour treated the appellant's failure to invoke s 151 as being dispositive of the question of whether she had a 'reasonable excuse' for not complying with the orders.
(3)That reasoning is erroneous in circumstances where s 151 imposes no obligation on a person objecting to compliance with a data access order.
(4)There was in any event no recourse for the appellant to 'invoke the protection' of s 151, in that only the officer in charge of the investigation may apply to the court.
118As Martin CJ observed in Strahan v Brennan:[51]
... it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[51] Strahan v Brennan [2014] WASC 190 [90].
119Further, although a magistrate's reasons must disclose the underlying intellectual process which has given rise to the conclusions,[52] the question of whether they are adequate may involve a consideration of what can legitimately be inferred from the reasons upon reading them as a whole.[53]
[52] Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] - [37] (McLure J, Steytler P & Johnson J agreeing).
[53] Bennett v Carruthers [2010] WASCA 131 [27] - [32] (Mazza JA, McLure P & Newnes JA agreeing).
120Against the backdrop of the above principles, I make the following observations relating to the context in which his Honour expresses his remarks at Reasons [31] and [38].
121 First, at Reasons [22] to [30] the trial magistrate, with respect accurately, identifies the substance of the 'reasonable excuse' defence advanced by the appellant at trial and the factual context in which it was raised.
122As is apparent from the Reasons, that context included: (a) the appellant's contractual obligations to the Party; (b) the salient features of emails exchanged between the appellant and her employer after she was served with the orders; and (c) the appellant having sought to persuade the court she had a reasonable excuse for not complying because to do so would jeopardise her employment.
123 Secondly, immediately after quoting at Reasons [31] the definition of 'reasonably suspects' in s 4 (read with s 3) of the Act[54] the trial magistrate: (a) at Reasons [32], notes that '[i]n considering the question of reasonableness, I have had regard to ... s 151 of the [Act] dealing with privileged material'; and (b) at Reasons [33], sets out the entirety of s 151 of the Act.
[54] Albeit incorrectly stating the definition related to '[r]easonable excuse[s]'.
124 Thirdly, after discussing aspects of the testimony of the police officer in charge of the investigation to the effect that the Senator had made a privilege claim, his Honour at Reasons [36] notes that: (a) the appellant had testified she was aware of the Senator's privilege claim; (b) there was no evidence that the appellant sought to make any claim for privilege on behalf of the Party; and (c) there was no evidence that the appellant informed the Party either of the Senator's privilege claim or of the Party's right to 'perhaps claim privilege'.
125 Fourthly, thereafter, at Reasons [37], his Honour concludes that the appellant's belief 'although perhaps honestly held, was not objectively reasonable given that the situation she found herself is expressly catered for by ... s 151 of the Criminal Procedure Act').[55]
[55] Given what precedes Reasons [37], the reference to s 151 of the 'Criminal Procedure Act' is plainly a typographical error (as is a similar reference at Reasons [38]).
126In my view, the following conclusions as to the trial magistrate's reasoning process are more than reasonably open from his Honour's analysis read as a whole.
(1)The trial magistrate was alive to the nature and ambit of the 'reasonable excuse' defence advanced by the appellant at trial (as noted in paragraph 121 above).
(2)On its proper construction, s 151 of the Act expressly caters for a situation where a person claims that all or some of the information in a seized record is privileged.
(3)If the appellant had made such a claim (or, perhaps, sought to do so on behalf of the Party):
(a)any seized device containing such information would, by force of s 151, have needed to have been secured in a manner preventing the information being accessed by anyone who would not be entitled to access it if it were privileged, pending determination in the Magistrates Court of an application as to whether the information was in fact privileged; and (therefore)
(b)the appellant may well have had a 'reasonable excuse' in not obeying the order(s) pending such a determination by that court.
(4)However, the appellant neither did so, nor demonstrated any other basis upon which it might be said that she had such an excuse.
127I accept it may well be open to read the trial magistrate's reasons in the manner contended for by the appellant. However, once appropriate allowances are made for the principles identified in paragraphs 118 and 119 above, I consider that an understanding of his Honour's process of reasoning consistent with what is set out in the preceding paragraph is to be preferred.
128Accordingly, I would not grant leave with respect to Grounds 3 and 4.
129Even if I am wrong, I do not consider any substantial miscarriage of justice has occurred for reasons which will shortly emerge.
Did the appellant have a 'reasonable excuse' for not obeying the orders? (Ground 5)
130Based on what was contended on behalf of the appellant at the appeal hearing, I understood the appellant's 'reasonable excuse' defence to be as follows:
The appellant feared that if she were to comply with the orders, she would breach her contractual obligations to the Party, and thereby run the risk of dismissal, in circumstances where the income she derived from this employer was her primary source of income.
131This defence falls to be considered, objectively, against the following factual backdrop which emerged at trial.
(1)The data access orders were issued in terms that stipulated the appellant was to provide access which would allow the police to 'gain access to any data' the devices might contain, 'copy any such data' and 'reproduce any such data'.
(2)The appellant had full access to the entire national contact data base of the Party, including personal information about individuals who had interacted with it, and confidential documents pertaining to strategic decisions of the Party and confidential party room briefs.
(3)Much of this information was stored on one of the seized devices.
(4)The appellant owed a contractual obligation to the Party to 'at all times treat [Party] information, data collected, project resources and contacts confidentially and not disclose or discuss these with a third party without [the Party's] explicit consent'.
(5)The appellant was aware the Senator had made a claim of Parliamentary privilege over data stored on both seized devices, though she did not recall being included in any communications between the police and the Senator as to how the data was to be handled.
(6)The appellant sent an email to the Party's national manager two days before the expiry of the seven-day period for compliance with the orders, which read as follows:
Hi [name of national manager]
As you're aware, the WA Police enacted a search warrant on my home last month, which resulted in the seizure of a number of my personal items including my phone and my laptop.
At the time these items were seized, I declined to provide my passcodes to the WA Police. They have subsequently served me with a data access order.
This order legally requires me to provide WA Police with my passcodes and passwords in order to give them full access to my devices and the data they contain.
WA Police have informed me that their access to my data would take the form of what they termed a 'data dump'. They have not provided me with any further advice or assurances regarding how they intend to treat or store my data.
As you're likely aware, I use both the phone and the laptop that were seized by WA Police for work reasons. These devices thus contain information and data pertaining to the [Party], including confidential information.
I am aware that it is a condition of my employment that I am to treat all information pertaining to the [Party] confidentially, and that I am not to disclose any of this information with a third party without explicit consent from the [P]arty. These terms are set out in my contract under condition (a) of 'Other contract conditions'.
I am thus very concerned that complying with the WA Police's data access order will place me in breach of my employment contract with the [Party], and am seeking your advice regarding how my compliance with the data access order (which I've attached) would impact this.
The period within which I have been asked to comply with this order ends at COB Thursday March 9, so I'd appreciate your response as soon as possible.
Thanks so much,
Joana.[56]
[56] Emphasis added.
(7)The Party's national manager responded, by email, as follows:
Hi Joana,
Thanks for the information.
As you have pointed out your employment contract includes a clause requiring you to:
'at all times treat all [Party] information, data collected, project resources and contacts confidentially and not disclose or discuss these with a third party without [the Party's] explicit consent. All [Party] information, data collected, project resources and products are provided on a strictly confidential basis.'
In addition to this you are periodically required to complete our online Systems Access User Agreement which reinforces the confidentiality requirements on you given your access to our systems, personal data of our members, donors and supporters, plus the entire electoral roll we receive from the Australian Electoral Commission not to mention sensitive organisational information. I have attached a screenshot of the last agreement completed and highlight two particularly pertinent points here:
·Information obtained through telephone contact, doorknocking, databases or any other means is to be kept strictly confidential and not inappropriately shared, released, exported or removed (electronically or manually) from the system in which it is being used.
·Personal logins for online systems must never be shared.
In light of these commitments you have made and in the absence of sufficient grounds for us to consider allowing you to provide others access to your passwords to our data and systems, we have no reason to give you permission to comply with the data access order you have received in so far is it jeopardises the confidentiality we require.
Regards
…[57]
(8)Having received the above response, the appellant was '… worried that I would lose my job, that I would be in breach of my contract'.
(9)From the appellant's perspective, the response 'cemented the fact that complying with the data access order was incompatible with [her] contractual obligations to [the Party]'.
(10)The appellant took the response 'to mean that if I was to provide my passwords to the police I would be in breach of my contract and therefore at risk of dismissal'.
(11)At the time, the employment income which the appellant received from the Party was her primary source of income.
(12)The appellant was a mature adult. She had both a marine science degree and a postgraduate degree in journalism. She was also employed by the Party as its national communications officer, working closely with the Federal leader's office and contributing to 'strategic discussions and planning around electoral strategy and communications strategy'.
[57] Emphasis added.
132On behalf of the appellant, it was contended that she:
(1)Was aware that breaching her contractual obligations 'would result' in sensitive data being compromised which on any objective assessment would not be a trivial breach.
(2)Did the best that she could have done in situation by bringing the matter to the attention of her employer.
(3)Made the decision that she ought to comply with the contractual obligations which she owed to her employer 'first and foremost' in circumstances where her employer did not give its explicit consent.
133It was uncontentious that, for the purposes of s 61(2) of the Act, 'reasonable excuse' means an excuse which is objectively reasonable in all the circumstances.
134Ultimately, the question raised by Ground 5 is whether the trial magistrate should have found that the appellant had demonstrated that her fear of losing her job, and primary source of income, gave her a 'reasonable excuse' for not complying with the data access orders (viewed objectively in all the circumstances summarised in paragraph 131 above).
135In my view, his Honour was correct not to have done so. I say this for the following reasons.
136 First, whilst 'reasonable excuse' should not be construed narrowly (especially where, as here, the onus is on the accused to establish it) its meaning also depends on the purpose of the provision to which the defence is an exception.[58]
[58] Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454, 464.
137The purpose of s 61(2) is to permit access to data controlled by suspects. The court should adopt an interpretation of the defence of 'reasonable excuse' which is designed to avoid this purpose being 'too easily defeated'.[59]
[59] Taikato, 466.
138In my view, a construction which would permit an employee to avoid their obligation to obey a data access order because of contractual obligations owed to an employer would readily frustrate the very purpose for which the provision is designed to avoid.
139I consider this to be even more so in circumstances where:
(1)Many employees nowadays have access to 'work data' on either privately or employer owned devices that may be liable to seizure under the Act.
(2)A contractual duty of confidence is, in any event, overridden by the duty of the parties to the contract to 'comply with the law of the land'.[60]
[60] Smorgon v ANZ Banking Group Ltd [1976] HCA 53; (1976) 134 CLR 475, 488 (Stephen J) referring to Parry-Jones [1969] 1 CH 1, 9 (Diplock LJ). See also A v Hayden (No 2) [1984] HCA 67; (1984) 156 CLR 532 [7] (Gibbs CJ) and O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 [30] (Mason J).
140Indeed, such a conclusion would appear to derive further support from the provision which appears immediately after s 61(2); namely s 61(3). Put simply, it is difficult to see how fear of losing one's job might objectively be considered a 'reasonable excuse' in circumstances where fear of criminal conviction would not.
141 Secondly, dismissal from employment in circumstances where the employee had been required to comply with a legal obligation would in any event be readily capable of remedy.
142 Thirdly, in my view this matter is to be distinguished from the decision in Barbaro[61] upon which the appellant relied. In that case, the accused had no time at all in which to take any other steps to protect his asserted privilege. Here, the appellant had seven days.
[61] Commissioner of Police (Qld) v Barbaro [2020] QCA 230; (2020) 6 QR 186.
143 Fourthly, the appellant was the national communications officer for a national political party, no doubt with some level of sophistication, notwithstanding that she was a layperson and 'predominantly an artist'.
144However, there was no evidence to suggest that the appellant took any step other than approaching her employer for its 'advice'.
145In particular, there was no evidence to suggest that the appellant sought legal advice relating to her obligation to comply with the orders given the duties she owed to her employer, as to the possible availability of the procedure under s 151 of the Act, or otherwise.
146 Finally, and whilst I accept the appellant's submission to the effect that the Act (including pt 7) was enacted long before the prevalence of remote work at levels now seen, the Act is to be considered as 'always speaking' and must be applied to the circumstances 'as they arise'.[62]
[62] Interpretation Act 1984 (WA) s 8.
147In all the circumstances, I consider that the appellant failed to establish, at trial, that she had a 'reasonable excuse'.
148Accordingly, I would not grant leave with respect to Ground 5.
Conclusion and orders
149Although I would grant leave with respect to Ground 1, I do not consider any substantial miscarriage of justice has occurred given my conclusions that the appellant was required to obey the orders and failed at trial to establish that she had a 'reasonable excuse'.
150Accordingly, I make the following orders:
(1)Leave to appeal be granted with respect to Ground 1.
(2)Leave to appeal be refused with respect to Grounds 2, 3, 4 and 5.
(3)The appeal be dismissed.
ANNEXURE A
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to the Judge
31 JULY 2024
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