Rogers, P. v Jacobsen, J.
[1995] FCA 574
•21 Jul 1995
C A T C H W O R D S
ADMINISTRATIVE LAW - search warrant - to State Department of Fisheries - requiring production of fishermens' returns - in connection with possible offences against Commonwealth law - whether public interest immunity applies - balancing exercise - interest in maintaining confidentiality of information provided in confidence pursuant to statute - competing public interest relating to investigation and possible prosecution of possible offences.
Crimes Act 1914 (Cwth) s.10
Fisheries Act 1905 (WA) s.19
Conway v. Rimmer [1968] AC 910
PETER ROGERS v. JOHANNES JACOBSEN and TERRENCE LESTER DIBB
No. WAG 28 of 1995
FRENCH J.
PERTH
21 JULY 1995
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) No. WAG 28 OF 1995
B E T W E N: PETER ROGERS
Applicant
and
JOHANNES JACOBSEN and
TERRENCE LESTER DIBB
Respondents
MINUTE OF ORDER
JUDGE MAKING ORDER: FRENCH J.
DATE OF ORDER: 21 JULY 1995
WHERE MADE: PERTH
THE COURT ORDERS THAT:
1. The remitted application is dismissed.
2. The application is to pay the respondents' costs of the remitted application.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) No. WAG 28 OF 1995
B E T W E N: PETER ROGERS
Applicant
and
JOHANNES JACOBSEN and
TERRENCE LESTER DIBB
Respondents
CORAM: FRENCH J.
PLACE: PERTH
DATE:21 JULY 1995
REASONS FOR JUDGMENT
Background
On 4 December 1992 I dismissed a consolidated application by the Director of Fisheries for Western Australia. The application sought judicial review of the decision of a Stipendiary Magistrate to issue two search warrants under s.10 of the Crimes Act 1914 (Cwth). The warrants authories members of the Australian Federal Police to enter premises of the Fisheries Department of Western Australia and to seize specified categories of documents which might afford evidence of offences against Commonwealth law relating to the evasion of income tax in the rock lobster fishing industry. The two warrants, each of which related to different premises of the Fisheries Department, authorised the seizure of original or copies of:
1. Returns furnished pursuant to the Fisheries Act 1905 of Western Australia and relating to rock lobster (also known as crayfish).
2. Documents and information relating to the catching, carriage or purchase of rock lobster.
3. Files
The classes of documents so specified were further limited by the condition that they should relate to any one or more of the following:
1. Information regarding the weight of rock lobster taken by each fisherman licensed to take or catch rock lobster in the said State for the period 1 July 1986 to 30 June 1990 (inclusive).
2. Information regarding the quantity of rock lobster purchased or received by:
Fremantle Fishermen's Co-Operative Society Ltd
Geraldton Fishermen's Co-Operative Society Ltd
Kailis and France Pty Ltd
INF Pty Ltd
W.A. Seafood Exporters Pty Ltd
Main Street Holdings Pty Ltd trading as R. & O. Seafood
Exporters
M.G. Kailis (1962) Pty Ltd
for the period 1 July 1986 to 30 June 1990 (inclusive).
3. Information regarding the quantity of rock lobster transported or carried by the following vessels:
"North Islander"
"Southern Lady"
"Island Leader"
"Abrolhos Enterprise"
"Irus II"
All of the above information related to rock lobsters caught, carried or purchased in the area off the Western Australian coast between latitude 21 44SX and 30 S, such are being designated as Zones "A" and "B" under s.12 of the Fisheries Act 1905 (WA). The classes of the documents subject to seizure were further limited by the condition that there be reasonable grounds for believing that the documents would afford evidence as to the commission of various offences against the Crimes Act 1914
and the Taxation Administration Act 1953 which were specified in the warrant.
The application by the Director of Fisheries relied upon the provisions of s.39B of the Judiciary Act 1903 and the Administrative Decisions (Judicial Review) Act 1977. The consolidated application sought an order quashing the decision to issue the warrants and associated declaratory and injunctive relief. The grounds upon which the application was brought were:
1. Failure on the part of the decision-maker to take into account relevant considerations.
2. The Court should intervene to restrain the execution of the warrants on the basis that the documents proposed to be seized are subject to the protection of public interest immunity.
3. Section 10 of the Crimes Act 1914 (Cwth) under which the warrants were issued should be read down on the basis that it does not authorise seizure of documents the subject of public interest immunity. Alternatively, s.10 of the Crimes Act and s.19 of the Fisheries Act 1905 (WA) should be read together on the basis that they are disparate statutes dealing with entirely different subject matter.
4. Section 10 of the Crimes Act is invalid to the extent of consistency with the provisions of s.19 of the Fisheries Act 1905 (WA) because it unduly interferes with the State's exercise of governmental functions.
The application was dismissed on the basis that there had been no failure to take into account relevant considerations, that no public interest immunity limitation could be implied to limit the powers conferred by s.10 of the Crimes Act, that s.10 of the Crimes Act should not be read down to accommodate the secrecy provisions of the Fisheries Act 1905 (WA) and that the issue of the warrants did not unduly affect the governemtn functions of the State. Having concluded that public interest immunity had no application to the execution of a search warrant, I added the
obiter comment that even if an implied limitation based on public interest immunity could be demonstrated I would not consider that any convincing case for such an immunity had been disclosed.
The Director of Fisheries and the State Attorney-General, who had intervened at the primary hearing, appealed to the Full Court of the Federal Court. The submissions made to the Full Court were summarised in the judgment of Sheppard J as follows:
1. Section 10 of the Crimes Act pursuant to which the warrants had been issued did not bind the Crown in right of the State of Western Australia with the consequence that the warrants were invalid.
2. The applicants for the warrants had failed to disclose to the stipendiary magistrate, before the warrants were issued, the public interest in the maintenance of the confidentiality of the information in the possession of the Fisheries Department.
3. In the circumstances of the case the Court should restrain the execution of the warrants on the ground of public interest immunity.
4. Because of the principle implied in the Consitution that the Commonwealth may not act so as to impair the capacity of the States to exist or to exercise their constitutional or government functions, s.10 of the Crimes Act 1914 was invalid to the extent that it contemplated the issuing of a search warrant against an instrumentality of the government of a State.
The first submission had not been relied upon at first instance. Nevertheless, the Full Court entertained argument on the point and ultimately allowed the appeal on the ground. Black CJ concluded that the presumption against the Crown in right of the State being bound by s.10 of the Crimes Act 1914 (Cwth)
had not been rebutted. He considered therefore that s.10 provided no authority for the grant of the warrants in question and that they were invalid. As that conclusion determined the outcome of the appeal, it was not necessary to consider the other matters argued by counsel. Sheppard J came to the same conclusion on the question whether s.10 of the Crimes Act extended to the Crown in right of the State. He observed that if, contrary to his conclusion, s.10 of the Crimes Act binds the Crown in right of the State of Western Australia the presence of s.19 in the Fisheries Act 1905 (WA) would be irrelevant to the exercise of the power under s.10. Alternatively, any inconsistency between the Federal and State legislation would be resolved by treating the Federal law as prevailing over that of the State. On either of those view, the submission based on public interest immunity would fail. His Honour went on to advert to the view that in any event public interest immunity was not available in extra-curial proceedings. He did not reach a conclusion on that point, but said that the better view was that the opportunity to claim the immunity would not arise until a matter came before a Court or an administrative tribunal and an attempt was made to use the seized documents for the purposes of pending proceedings. Lee J agreed with the judgment of Sheppard J and added some further comments on the proper construction of s.10 of the Crimes Act 1914.
The decision of the Full Court of the Federal Court was appealed to the High Court which, on 17 February 1995, allowed the appeal and set aside the orders of the Full Court. In their joint judgment, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ held that it would not have been intended by the legislature that a search warrant issued under s.10 of the Crimes Act 1914 should stop short of Crown premises with the result that criminal offences might go unpunished or their investigation and prosecution be made more difficult. Their Honours held, however, that it was open tot he Crown to resist seizure under a s.10 search warrant of documents to which public interest immunity attached. They said:
"...if a dispute arises as to the existence of the immunity, means are available to obtain a judicial determination of the issue."
The means contemplated were judicial review. The Court accepted the possible application of public interest immunity upon the basis that, as with legal professional privilege, it was a basic common law doctrine not to be abrogated except in the clearest of terms. Brennan J held, contrary to the majority, that the public interest immunity had "nothing to say..about the scope of the powers conferred by s.10". McHugh J, who dissented on the question whether s.10 binds the Crown in right of the States, was included to the view that a claim of public interest immunity should not be permitted as an answer to a search warrant unless made so by statute.
Their Honours made some comments about the application of public interest immunity. They referred to its particular application in the case of information gleaned upon the basis of confidentiality. They cited, with approval, the statement of Lord Reid in Conway v. Rimmer [1968] AC 910 at 946:
"If the state insists on a man disclosing his private affairs for a particular purpose it requires a very strong case to justify that disclosure being used for other purposes."
They also said:
"The principle does not appear to depend upon the encouragement of candour but rather upon the consideration that the public interest is best served by preserving the basis upon which the information was given. It may be necessary for the proper functioning of the public service to withhold documents where failure to do so would impair confidence in its assurances. Confidential information of a business character required to be given by a statute which prohibits the disclosure of the information and protects it from production to a court would appear to present a particularly strong case for immunity. Nevertheless, even where the private right to confidentiality is of some magnitude and its preservation is in itself in the public interest, it must be weighed against the public interest in disclosure for the purposes of the investigation and prosecution of the offences in question. Ultimately, that issue may require judicial determination but, as we have said, if the warrant is executed in a reasonable manner, as it must be, there is no reason why that issue may not be resolves by a court." (p.10)
The matter was remitted to the Federal Court to consider in the light of their Honour's reasons, whether there is immunity in the present case.
I respectfully accept that, for the reasons expressed in the joint judgment, I am bound to proceed on the basis that public interest immunity is capable of being claimed in a case such as the present. The determination now required is whether or not public interest immunity applies to prevent the production of the documents the subject of the search warrants.
Factual Issues
The parties upon my findings of fact at first instance. In addition an affidavit of James William Penn, the Director of Research at the Department of Fisheries, was relied upon. Dr. Penn was not cross-examined on the affidavit which
established the following propositions:
1. The rock lobster fishery is considerable more fragile today than it was in 1992. Levels of juvenile lobsters settling along the coast have declined for four consecutive years which is unprecedented in the history of the fishery.
2. The breeding stock is now estimated to be at 15-20% of the original unfished level which is too low. The Department's view is that a safe level of breeding stock is about 25% of the original unfished level and the international view supports this.
3. Because of the concern as to the low of breeding stocks, new restrictions on the taking of rock lobster were implemented in 1993/94.
4. There is no longer any discrepancy between the level of catch reported to the Department and the level of catch reported in the processing plant returns. The records equate within 1%.
5. The Department now needs to monitor the level of breeding stock in the fishery more precisely and is undertaking an expanded breeding stock research program to enhance the value of the industry provided data base.
6. The accuracy of returns and the information provided voluntarily by fishermen remain crucial to the management of the fishery under the new system, as does co-operation between fishermen and the Department.
7. The management arrangement now in place in the fishery involved much closer monitoring of catches of some classes of lobster than has previously been undertaken. This level of monitoring is necessary because reducing the catch of those lobsters is the cornerstone of the Department's strategy to build up the breeding stock.
Mr Rogers, the Executive Director of the Department of Fisheries, also gave evidence on affidavit. He said that the value of production of the commercial fisheries managed by the Department has increased significantly since 1992. Excluding pearling, the value of the fisheries is not around $400 million per annum at point of sale. With pearling, the total value is in the order of $600 million. The rock lobster fishery alone has an annual production value of $295 million. The money expended on fisheries research has increased and is currently around $500 million per year.
The Balancing of Interest
The determination whether public interest immunity applies in a particular case requires a balancing of the competing interests attaching to production or disclosure of the relevant documents. In this case, the interest served by the seizure of the documents relates to the investigation and possible prosecution of offences which may have been committed against the law of the Commonwealth. The interest said to be served by non-production is the proper functioning of the Fisheries Department meeting the need to preserve the fishery by ensuring that compulsory and voluntary information important to its management on a sustainable basis is provided and that the information provided is accurate.
The State contends that in considering the reasons advanced for production, an examination of the evidentiary value, relevance and importance of the documents to the investigation and prosecution should be made. In this case it is said there is overwhelming public interest in protecting the documents from seizure. The competing public interests can be evaluated by comparing the utility to Commonwealth authorities of the information held by the Fisheries Department with the effect on the Commonwealth's investigation and the workings of the Executive
Government if the information were not disclosed. It is submitted that documents held by the Fisheries Department records weights of catches for the relevant years which are within 1% of records provided to processors otherwise able to be obtained.
The Federal Police have already obtained the processors' records and, in any event, an attempt to convert weights to prices and income is fraught with difficulty and only possible with a low degree of accuracy. In addition, it is said the, the documents held by the Fisheries Department cannot assist in any way in identifying the fishermen who have received cash payments. The documents held by the Department are said to contain no information in addition to that held by the processors. The information they do contain cannot confirm a suspicion that offences have been committed. This is a suspicion already arising from the processor's records.
The information sought is said to be vital to the conservation of an important and valuable natural resources which cannot accurately be obtained in any other way. The State submits that disclosure of sensitive information gathered in confidence for an important governmental purpose must impair the effectiveness of all State administration which requires the gathering of such information whether under statutory guarantees of confidentiality or pursuant to less formal undertakings. It is said to be an essential requirement of any government that it have accurate information available to it in order to govern effectively. Section 19 of the Fisheries Act is said to be a compelling indication of the public interest in the non-disclosure of documents of the kind sought. It contains a legislative judgment as to the significance of the information gathered and as to the need for confidentiality. The disclosure of the information would contradict all understandings of fishermen as to the confidentiality of their returns and the Fisheries Department would then be unable to assume the reliability of the information and the management of the fishery would be fundamentally impaired.
In my respectful opinion nothing has been put before the Court of a factual character to indicate that circumstances relevant to the determination of public interest immunity have altered significantly since I gave judgment in December 1992. I rely upon the facts then found and the undisputed material which has been put before me on the hearing of the matter remitted by the Hight Court. In particular, I accept that information provided by fishermen, both voluntarily and under statutory compulsion, is of great importance to the management of a sustainable fishery. I accept that it is a highly competitive industry with limited stocks and that it is of great importance tot he acquisition of that information that those providing it can be confident that it will not be used in a way that is detrimental to their legitimate commercial interests. I accept also that there is a low rate of discrepancy between information provided on returns lodged with the Fisheries Department and information obtained from processors. In the judgment given in February 1992, I was not prepared to infer that comparisons made between s.18 returns and other information covered by the search warrants on the one had, and information otherwise available to the Police from processors would not be of assistance in the detection of such offences as are referred to in the warrants. It was implicit in that finding and, if not, I now so find, that comparisons between the documents sought under the search warrants and information otherwise available from processors may be of assistance in the detection of such offences as are referred to in the warrants.
In so saying I note my finding that Dr. Penn accepted at the primary trial that a correlation might be able to be made between the weight of crayfish taken and sale price by a combination of available data from processors, Department and industry, although with a low degree of accuracy.
I accept that there is a high public interest in maintaining the confidentiality of the information provided. I am not, however, prepared to draw the inference that a substantial number of fishermen will cease to co-operate with the Department or to comply with s.18 of the Fisheries Act 1905 if they think that the information so provided may become available to the Australian Taxation Office. That Office has its own statutory requirement for maintaining the confidentiality of information provided to it. In any event, the documents seized under a search warrant are confidential to the person or authority executing the warrant unless or until produced in Court.
The joint judgment in the High Court included the statement that:
"Confidential information of a business character required to be given by a statute which prohibits the disclosure of the information and protects it from production to a court would appear to present a particularly strong case for immunity."
Nevertheless, as their Honours said, where the right to confidentiality is of some magnitude and its preservation is itself in the public interest, it must be weighed against the public interest in disclosure for the purposes of the investigation and prosecution of the offences in question.
Much of the argument put by the State centred upon the damage done to the process of acquiring information about fish stocks from fishermen if the confidentiality of that information were seen to be compromised by the execution of a search warrant. It must, however, be accepted that the industry will now be aware that a search warrant can be executed against the State Fisheries Department and that the question of production in light of a claim for public interest immunity is a matter for judicial evaluation. To that extend, in my opinion, if there is damage of the kind hypothesised by the State, that damage will already substantially have occurred.
In the event, accepting that there is a public interest in maintaining the confidentiality of the Department's records, I do not consider that public interest outweighs the interests of the Commonwealth Police in determining whether or not serious offences have been committed against the laws of the Commonwealth. There is, or course, a degree of confidentiality which still attaches to the documents seized under the warrant. It may be that the question of public interest immunity could again be put in relation to the use of such documents in a public way in court proceedings where other evidence might be available. Concerns about publishing confidential commercial information for scrutiny by competitors could be raised at that point.
It must be said that there is an element of the public interest immunity argument which may have the effect of giving comfort to those who might be tempted to be less than honest in their provision of information about income from catches to the Australian Taxation Office. It should also be pointed out that such assistance as the obtaining of the relevant documents provides to the investigation may work to clear the relevant fishermen of any suspicion of having committed any offence. In my opinion, this is not a case in which the claim for public interest immunity is made out and the application should therefore be dismissed.
I note that the heading of the application wrongly shows Messrs. Jacobsen and Dibb as applicants and Mr Rogers as respondent. I direct that the heading of the proceedings be amended so that Mr Rogers is shown as the applicant and Messrs. Jacobsen and Dibb as respondents. Having so amended the heading of the application, the application will be dismissed and the applicant required to pay the respondents' costs of the remitted application.
I certify that this and the preceding
thirteen (13) pages are a true copy of the
Reasons for Judgment of his Honour Justice French.
Associate:
Date:
Counsel for the Applicant: Mr R.E. Cock and Mr A.G. Willinge
Solicitors for the Applicant: Crown Solicitors Office
Counsel for the Respondents: Mr E. Heenan QC and Mr H.D. Seymour
Solicitors for the Respondents: Commonwealth Director of Public Prosecutions
Date of Hearing: 7 July 1995
Date of Judgment: 21 July 1995
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