Re City of Cockburn;

[1999] WASC 209

RE CITY OF COCKBURN; EX PARTE DOUGLAS [1999] WASC 209

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 209
Case No:	CIV:2167/1999	Heard:	15 OCTOBER 1999
Coram:	OWEN J	Delivered:	15/10/99
No of pages:	5	Judgment Part:	1 of 1
Result:	Application allowed
PDF Version

Parties:	NEIL FREDERICK ALEXANDER DOUGLAS
Catchwords:	Local Government Miscellaneous matters Inquiry Panels Power to issue search warrants Statutes Acts of Parliament Interpretation Inquiry Panels Power to issue search warrants
Legislation:	Local Government Act 1995, s 8.16, s 8.20 Royal Commission Act 1968, s 18
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE CITY OF COCKBURN; EX PARTE DOUGLAS [1999] WASC 209 CORAM : OWEN J HEARD : 15 OCTOBER 1999 DELIVERED : 15 OCTOBER 1999 FILE NO/S : CIV 2167 of 1999 MATTER : An Inquiry Panel into the City of Cockburn pursuant to s 8.16 of the Local Government Act 1995 An application for a search warrant under s 18 of the Royal Commission Act 1968

EX PARTE

NEIL FREDERICK ALEXANDER DOUGLAS
Applicant

Catchwords:

Local Government - Miscellaneous matters - Inquiry Panels - Power to issue search warrants

Statutes - Acts of Parliament - Interpretation - Inquiry Panels - Power to issue search warrants

Legislation:

Local Government Act 1995, s 8.16, s 8.20

Royal Commission Act 1968, s 18

(Page 2)

Result:

Application allowed

Representation:

Counsel:

Applicant : Mr M D Howard

Solicitors:

Applicant : Mr F J Van Der Kooy

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

(Page 3)

1 OWEN J: This is an application for the issue of a search warrant under s 18 of the Royal Commissions Act 1968 ("the Act"). It arises in the context of an Inquiry under the Local Government Act 1995 into certain matters concerning the local authority known as the City of Cockburn.

2 The Inquiry has taken evidence on a number of days and has issued summonses to parties to attend and to produce documents. The Inquiry is authorised by a notice given by the Minister for Local Government under s 18.16 of the Local Government Act. That notice was signed by the Minister and issued on 18 May 1999.

3 On 12 October 1999, the Inquiry Panel wrote to the Minister asking for an amendment to the terms upon which he had been appointed, namely so that he could have the powers provided by s 18 of the Actto obtain the issue of search warrants. On 12 October 1999, the Minister for Local Government signed a document headed "Notice of Additional Term of Appointment" which reads:

"Pursuant to the abovementioned provisions I hereby declare that section 18 of the Royal Commissions Act 1968 applies to the inquiry panel appointed by me by notice dated 18 May 1999 to conduct an inquiry into the City of Cockburn."

4 This is a very significant power. That fact is recognised by s 18(1), which is in these terms:

"This section does not apply to a Commission unless by the terms of appointment or in the instrument made by the Governor the provisions of this section are expressly declared to so apply."

As can be seen, s 18 does not automatically apply to every Royal Commission. However, a conscious decision can be taken to include the search warrant power. The inclusion of this power will only occur where the provisions of s 18 are expressly declared to apply in the terms of appointment or in an instrument made to that effect. Unless the power is expressly declared, it cannot be utilised.

5 Section 8.20 of the Local Government Act provides:

"For the purposes of an inquiry and report under this Division -

(a) an Inquiry Panel has the powers of a Royal Commission; and

(Page 4)

(b) the person appointed to preside at meetings of the Inquiry Panel, or if the Inquiry Panel consists of one person that person, has the powers of the Chairman of a Royal Commission,

whether under the Royal Commissions Act 1968 or otherwise, and the provisions of that Act have effect as if they were enacted in this Act with such modifications as are required and in terms made applicable to the inquiry and report by the Inquiry Panel."

6 It seems to me that the combination of s 8.16 and s 8.20 of the Local Government Act have the effect of empowering the Minister for Local Government, in an inquiry established under that division of the Local GovernmentAct, to apply the provisions of s 18 of the Act to the inquiry. The Minister may do so either by the terms of appointment or in an instrument. In other words, in the context of an inquiry under the Local GovernmentAct, the phrase appearing in s 18(1), namely "in the terms of appointment or in an instrument made by the Governor", is to be construed as if it read "in the terms of the appointment or in an instrument made by the Minister".

7 I am satisfied that the notice of 12 October 1999 is such an instrument. As I have said, the power to issue a search warrant is an extremely broad and serious power. It is predicated on the basis that there is relevant material in the premises which are to be the subject of the search. Section 18(2) of the Act provides:

"Where a Judge of the Supreme Court is satisfied, on the application of a Commissioner or a person appointed by the Attorney General to assist the Commission, that there are reasonable grounds for suspecting that there may be relevant material in or on particular premises, the Judge may issue a search warrant authorising a named person or persons -

(a) to enter and search the premises; and

(b) where the premises comprise a vehicle, vessel, aircraft or the like, to stop and detain and give directions as to the movement of the same."

8 The ex parte notice of originating motion is issued by Neil Frederick Alexander Douglas, who constitutes the Inquiry Panel. It seems to me, using the same process of interpretation, that he is a person

(Page 5)

who would have standing to apply under s 18(2). The conditions, therefore, for the exercise of the power have been established.

9 It then falls to decide whether or not there are reasonable grounds for suspecting that there may be relevant material in or on particular premises. I take seriously the phrase "reasonable grounds". No mere suspicion would suffice. There must be some material established by admissible evidence sufficient to persuade a Judge, acting judicially, that there are grounds and that those grounds are reasonable. It is probably not wise to go further in attempting to define the phrase "reasonable grounds".

10 The evidentiary material is contained in two affidavits, both sworn by Frank James Van Der Kooy, dated 14 October 1999 and 15 October 1999 respectively. Mr Van Der Kooy is the instructing solicitor to the Inquiry.

11 The circumstances can be summarised as follows.

[Because of the confidential nature of this application, the balance of the judgment is not reproduced.]