Rogers, P. v Moore, K.

PETER ROGERS v. KENNETH MOORE; JOHANNES JACOBSEN and TERENCE LESTER DIBB
No. WAG203 of 1992
FED No. 475
Number of pages - 36
Jurisdiction - Practice and Procedure
(1993) 115 ALR 347
(1993) 41 FCR 301
(1993) 31 ALD 289 (extract), (1993) 67 A Crim R 119

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Black CJ(1), Sheppard(2) and Lee(3) JJ

CATCHWORDS

Jurisdiction, Practice and Procedure - warrants - search warrant issued pursuant to s. 10 Crimes Act 1914 (Cth) - whether Crown in right of a State is bound - whether common law presumption that statutes do not bind the Crown applies

The Constitution s. 109

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Crimes Act 1914 (Cth) Parts IA, IC, VII (ss 77-85D), VIIC; ss 10, 10A, 10B, 10C, 10D, 10E, 23A, 85ZQ

Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth)

Crimes Legislation Amendment Act 1992 (Cth)

Income Tax Assessment Act 1936 (Cth) s. 16

Judiciary Act 1903 (Cth) ss 39B, 78B

Taxation Administration Act 1953 (Cth)

Trade Practices Act 1974 (Cth) s. 2A

Aboriginal Heritage Act 1972 (WA) s. 17

Fisheries Act 1905 (WA) Parts IIA, III; ss 18, 19

Fisheries Amendment Regulations (No 8) 1991 (WA)

Criminal Code (Qld) s. 679

A v Hayden (1984) 156 CLR 532

Bradken Consolidated Limited v The Broken Hill Proprietary Company Limited (1979) 145 CLR 107

Brisbane City Council v Group Projects Pty Limited (1979) 145 CLR 143

Bropho v State of Western Australia (1990) 171 CLR 1

Commonwealth of Australia v Northern Land Council (1993) 112 ALR 409

Commonwealth v Rhind (1966) 199 CLR 584

Crowley v Murphy (1981) 52 FLR 123

George v Rockett (1990) 170 CLR 104

Melbourne Corporation v Commonwealth of Australia (1947) 74 CLR 31

Moore v Smith (1859) 5 Jur N S 892

Province of Bombay v Municipal Corporation of Bombay (1947) AC 58

Bennion, Statutory Interpretation, 2nd edition, 1992

Carter, The Law Relating to Search Warrants

McNicol, Law of Privilege, 1992

Polyviou, Search and Seizure

Stone, Entry, Search and Seizure, 2nd edition

Review of Commonwealth Criminal Law, 4th Interim Report

HEARING

PERTH, 18 and 19 February 1993

#DATE 16:7:1993

Counsel for the Appellant: K.H. Parker, QC,

M.A. Yeats

Solicitors for the Appellant: Western Australian State

Crown Solicitor

No appearance for the First Respondent.

Counsel for the Second Respondent: E.M. Heenan, QC,

M.D. Seymour

Solicitors for the Commonwealth Department
Second Respondent: of Public Prosecution

Attorney-General for Commonwealth
Intervening: G. Griffith QC, C.R. Staker

Solicitors for Commonwealth
Intervening: Australian Government Solicitor

Attorney-General for Western Australia
Intervening: K.H. Parker QC, R.E. Cock

Solicitors for Western Australia
Intervening: Western Australian State

Crown Solicitor

ORDER

The Court orders and declares that:

1. The appeal be allowed and the order dismissing the application be set aside.

2. The decision of the first respondent under s. 10 of the Crimes Act 1914 (Cth) to issue the warrants dated 12 February 1992 be set aside.

3. The warrants dated 12 February 1992 issued by the first respondent are invalid.

4. The second respondents pay the appellant's costs of the appeal limited to the first day of hearing.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BLACK CJ This is an appeal from a judgment of a judge of this Court, French J, dismissing applications by the appellant under the Administrative Decisions (Judicial Review) Act 1977 and s. 39B of the Judiciary Act 1903. The appellant, the Director of Fisheries for Western Australia, sought an order for review of the decision of the first respondent, a stipendiary magistrate for the State of Western Australia, to issue two search warrants under s. 10 of the Crimes Act 1914 (Cth). He also sought declaratory and injunctive relief.

The warrants authorised two members of the Australian Federal Police in Perth (the second respondents) to enter premises of the Department of Fisheries of Western Australia in Adelaide Terrace, Perth, and at the WA Marine Research Laboratory at Waterman, 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 circumstances under which the warrants came to be issued and the course of the litigation are described in the reasons for judgment of Sheppard J, which I have had the advantage of reading. Mr Justice Sheppard also refers to the terms of the warrants and draws attention to the fact that they are expressed to confer specific authority, pursuant to s. 10(1A) of the Crimes Act to:-

". . . where it is necessary and reasonable to do so for the purposes of executing the warrant, break open such doors and receptacles as are in or upon the said premises . . . with such assistance, and by such force, as is necessary and reasonable."

Having regard to the way the appeal was argued, the central question to be determined is whether, on its proper construction, s. 10 of the Crimes Act empowers the grant of a search warrant authorising a constable to enter the premises of the Crown in the right of a State, in this case the Crown in the right of the State of Western Australia, and to seize things found there. This question was not raised before the learned primary judge, who dismissed the applications on other grounds, but I agree with Sheppard J for the reasons he gives that the Court should allow it to be raised and determined on this appeal.

Section 10 of the Crimes Act has been amended on several occasions since it was enacted. In its original form it read:

"10 If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -

(a) anything with respect to which any indictable offence against this Act has been, or is suspected on reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence; he may grant a search warrant authorising any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel or place."

At the time the warrants were issued in 1991 the section was in the terms set out below. I have italicised the changes brought about by amendments since 1914, and have indicated in brackets the dates of the amendments, other than those which added the expression "a magistrate". The references to "a magistrate" were added by an amendment in 1991.

"10(1) If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises, aircraft, vehicle, (1987) vessel or place:

(a) anything with respect to which any offence against any law of the Commonwealth (1926) or of a Territory

(1960) has been, or is suspected on reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any (1987) such offence, or that any such thing may, within the next following 72 hours, be brought into or upon the premises, aircraft, vehicle, vessel or place, the Magistrate or Justice of the Peace may grant a search warrant authorising a constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises, aircraft, vehicle, vessel or place named or described in the warrant, and to seize any such thing which he or she might find there.

(1A) A constable named in a warrant may, where it is necessary and reasonable to do so for the purpose of executing a warrant, break open (1987) such doors and receptacles as are in or upon the premises, aircraft, vehicle, vessel or place named or described in the warrant and may do so with such assistance, and by such force, as is necessary and reasonable.

(2) Sub-section (1) is not intended, and shall be deemed never to have been intended, to limit or exclude the operation of a law of a Territory (1986) relating to the search of premises, aircraft, vehicles, vessels, places or persons in connection with offences against any law of that Territory.

In determining whether the section gives authority to grant a warrant to search the premises of the Crown in the right of a State the question raised is essentially the same as whether the section binds the Crown in the right of a State. If the section has unlimited general application it will enable the issue of a warrant that will provide lawful justification for what would otherwise be an unlawful invasion of the property of the Crown.

The starting point must be the decision of the High Court in Bropho v State of Western Australia (1990) 171 CLR 1, in which the Court rejected the tests of "manifest from the very terms of the statute" and "purposes of the statute being otherwise wholly frustrated" for determining whether, in the absence of express reference, the general words of a statute bind the Crown, in favour of an approach that involves discerning the legislative intention in the provisions of the statute - including its subject matter and disclosed purpose and policy - when construed in a context which includes permissible extrinsic aids (see Bropho at 21-22).
Where, as here, the statute in question was enacted before the decision in Bropho a question may arise as to the principles to be applied in determining whether its general words bind the Crown. It is not suggested that there is any settled construction of the Crimes Act bearing in any way on the present question of interpretation, so that particular aspect of the problem may therefore be put to one side. Moreover, the legislation was of course enacted prior to the decision in Province of Bombay v Municipal Corporation of Bombay (1947) AC 58 at a time when there was authority in Australia for a less stringent approach (see Bropho at 22 - 23), and although there were some amendments to s. 10 during the period between the Province of Bombay Case and the publication of the decision in Bropho they were not amendments that affected the relevant substance of the section. In these circumstances I consider that the approach taken in the Province of Bombay Case can also be put to one side as being one that does not affect the discernment of the legislative intention in this case.
It may be that in accordance with the reasoning in the joint judgment in Bropho (at 23) it will sometimes be necessary to construe legislation enacted before the Province of Bombay Case was decided by paying regard to the state of authority before 1947 but I propose to begin by considering the question of legislative intent on the footing that the approach directed by the High Court for legislative provisions enacted subsequent to the decision in Bropho should be adopted. If, adopting that approach, the conclusion is reached that the section was not intended to bind the Crown there would be no occasion to look to the cases decided before the Province of Bombay Case as reference to them would not produce a different result.
Bropho does not abolish the presumption that the general words of a statute do not bind the Crown. In their joint judgment (at 23) Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

"In the case of legislative provisions enacted subsequent to this decision, the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises."

Their Honours then pointed to the difference in the strength of the presumption according to whether, for example, the question was whether general words should be construed in a way which would make the Sovereign herself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence or whether, on the other hand, the question was whether the employees of a government corporation engaged in commercial activities were bound by general provisions designed to safeguard places or objects whose preservation was of vital significance to a particular section of the community. In the former case the presumption against a legislative intent to bind the Crown would be extraordinarily strong, whereas in the latter it would represent little more than a starting point of the ascertainment of the legislative intent.

Their Honours continued (at 23-24):

"Implicit in that is acceptance of the propositions that, notwithstanding the absence of express words, an Act may, when construed in context, disclose a legislative intent that one of its provisions will bind the Crown while others do not and that a disclosed legislative intent to bind the Crown maybe qualified in that it may, for example, not apply to directly to the Sovereign herself or to a Crown instrumentality itself as distinct from employees or agents. Always, the ultimate questions must be whether the presumption against the Crown being bound has, in all the circumstances, been rebutted, and, if it has, the extent to which it was the legislative intent that the particular Act should bind the Crown and/or those covered by the prima facie immunity of the Crown."

It follows that, whilst not ignoring the context in which the section appears, it is appropriate to focus upon s. 10 itself.

Before doing so, however, it is necessary to consider whether there is any force in the submission that even if s. 10 does not bind the Crown in the right of the Commonwealth, it nevertheless binds the Crown in the right of a State. This submission cannot be accepted having regard to the judgments of the majority in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107. In that case the earlier authorities were discussed and the majority rejected the view that the presumption against a statute binding the Crown applied only to the Crown in the right of the community of the enacting legislature. Mason and Jacobs JJ said (at 136):

"This being the position, it would seem to us that at least as between the Commonwealth and the States there should be an identical presumption of legislative intention not to bind the Crown."

See also per Gibbs ACJ at 121-123 and per Stephen J at 129. The conclusions of the majority on this question did not turn upon the nature of the tests to be used in the application of the presumption or of any rule of construction concerning the application of statutes to the Crown, but upon broader considerations. In my view the authority of Bradken on this point is unaffected by the subsequent rejection by the High Court in Bropho of the tests applied in the Province of Bombay Case.

I now return to consider s. 10. That section, if it applied to the Crown, would authorise the granting to a constable of a search warrant to enter premises occupied not merely by employees or agents of the Crown but by an instrumentality of the Crown itself, in this case by one of the departments of the government of a State. It would not of course merely authorise a warrant for the entry of a constable upon premises of the Crown but it would give authority to break down doors, open containers and seize things, no matter that all of them were the property of the Crown, and no matter whether they were the premises and property of the Crown in the right of the Commonwealth or of a State. It is in the nature of warrants such as the section authorises that the constable may enter with such assistance and by such force as is necessary and reasonable.
I see no basis for construing the section so as not to extend to searches in some government departments but to extend to others; I do not have to consider the position of agencies of the Crown engaged in commercial activities: cf Bropho at 23. If the section can be a source of authority to break down, if necesary, the doors of the offices or laboratories of the Department of Fisheries of Western Australia, it must also be a source of authority to break down, if necessary, the doors of the State Treasury and to prise open containers that might be found inside. The authority would extend to offices of departments, State or Federal, whose responsibilities go the very heart of government.
Moreover, as Sheppard J points out, the exercise of the authority granted by such a warrant does not, of course, need to be preceded by any request or by any notice such as would enable its legality to be tested before it is executed.
There is obviously a high public interest in the investigation and prosecution of offences and so it was argued on behalf of the second respondents that the section should be construed, in the furtherance of that interest, to extend to the Crown. But a requirement by an agency of the Crown in the right of the community of the enacting legislature to have access to documents in the possession of another agency of the Crown in the same right is quite different in character to a requirement to have access to documents in the possession of a citizen. When the Commonwealth requires access to documents in the possession of the Commonwealth it does not need a search warrant, although there may be limited classes of documents that could not be released because they are subject to special statutory provisions relating to secrecy or privacy. This is not to say that officers of the Commonwealth can go where they will and look at what they wish without authority. But, subject to statutory requirements relating to secrecy and the like, that authority can be given by other officers of the Commonwealth. In the case of the Crown in the right of the Commonwealth, far from displacing the presumption that the Crown is not bound by s. 10, the position of the Crown with respect to documents or things in its own premises suggests that the Parliament would not have intended that it should be bound by the section.
The situation is obviously not the same when Commonwealth officers require access to the documents of a different government, that of a State. No doubt there would ordinarily be an expectation of co-operation between governments in such matters but it would not be a case of an agency of a government seeking access to that government's own premises and to documents in its own possession. And cases could arise where, as here, special circumstances existed and there was a conflict between the requirements of one government and the legislation and policy of another. But if there is good reason to conclude that the presumption is not displaced when the position of the Crown in the right of the Commonwealth is considered, the absence of that particular reason when the Crown in the right of a State is considered does not deprive that reason of its force.

In any event, when the position of the Crown in the right of a State is considered, the invasive nature of a search warrant and considerations of comity and co-operation between the Commonwealth and the States provide an added reason for concluding that s. 10 was not intended to bind the Crown; cf per Gibbs ACJ in Bradken at 123.
It should be remembered, moreover, that the circumstances in which a warrant under s. 10 may be granted are not conditioned upon there being any ground for suspecting that any occupant of the premises to be searched has any connection with an offence against a law of the Commonwealth or of a Territory. It is sufficient, for example, that there is reasonable ground for suspecting that there is in a place "anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence". Nor does the object of the search warrant have to be critical evidence.
In my view, the strength of the presumption that the general language of s. 10 does not extend to the Crown is by no means at the weak end of the scale. It is far more than a starting point for ascertaining the legislative intent (cf Bropho at 23) because what the section would authorise, if it did extend to the Crown, would be a direct application to the Crown's premises and property. In these circumstances, for the reasons I have discussed, I conclude that the presumption against the Crown being bound has not been rebutted. I consider that s. 10 of the Crimes Act provided no authority for the grant of the warrants in question and that they are invalid.
As this conclusion determines the outcome of the appeal it is not necessary to consider the other important questions argued by counsel before us.
I would allow the appeal and set aside the orders of the learned primary judge dismissing the appellant's applications. Instead there should be an order under the Administrative Decisions (Judicial Review) Act 1977 setting aside the decision of the first respondent to issue the search warrants on the ground that the decision was not authorised by s. 10 of the Crimes Act, and it should be declared that the warrants are invalid. I agree with Sheppard J that although injunctive relief was sought in the application for review there is no necessity to grant it.
As the appellant has succeeded on a point that was not argued before the primary judge but was at the forefront of its case before us, I would not disturb the orders for costs made against the appellant by the primary judge. I would order that the second respondents pay the appellant's costs of the appeal, limited to a hearing of one day.

JUDGE2

SHEPPARD J This is an appeal from a judgment of a judge of this Court (French J) as a result of which applications made to the Court by the appellant under the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act 1903 were dismissed. The applications sought the setting aside of search warrants issued by the first respondent on the application of the second respondents who are members of the Australian Federal Police. The warrants authorised the second respondents to enter premises of the Fisheries Department of Western Australia at 108 Adelaide Terrace, Perth, and at the Western Australian Marine Research Laboratory at Watermans, 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. Rock lobsters are sometimes referred to as crayfish.

The warrants are in a similar form. One of them is set out in full in the learned primary Judge's judgment. I propose to refer to the essential parts of it. The warrant recited that the first respondent was satisfied by information on oath that there were reasonable grounds for suspecting that there were in the premises at 108 Adelaide Terrace currently occupied by the Fisheries Department "certain THINGS which satisfy ALL" of three conditions. The first of these was that the "things" were original or copies of returns furnished pursuant to the Fisheries Act 1905 (WA) and relating to rock lobster, documents and information relating to the catching, carriage or purchase of rock lobster and files. The second condition was that the "things" related to one or other or more of categories of information thereafter specified. These categories related to the weight of rock lobster taken by each fisherman licensed to take or catch rock lobster in Western Australia for the period 1 July 1986 to 30 June 1990, information regarding the quantity of rock lobster purchased or received by any one of a number of named companies for the same period and information regarding the quantity of rock lobster transported or carried by five named fishing vessels.
The third condition was that there were reasonable grounds for believing that the documents or "things" would afford evidence as to the commission of certain offences provided for in the Crimes Act 1914 and the Taxation Administration Act 1953.
The warrant concluded with the following paragraphs:-

"YOU ARE HEREBY AUTHORISED with such assistance, and by such force, as is necessary and reasonable to enter at any time the said place TO SEIZE any such things as satisfy ALL of the THREE above conditions and as may be found in the said place and for so doing this shall be your SUFFICIENT WARRANT. Furthermore YOU MAY, pursuant to sub-section (1A) of section 10 of the Crimes Act 1914, where it is necessary and reasonable to do so for the purposes of executing the warrant, break open such doors and receptacles as are in or upon the said premises and may do so with such assistance, and by such force, as is necessary and reasonable."

The information upon the basis of which the warrants were issued was sworn by Mr. Dibb, one of the respondents, on 12 February 1992. The information disclosed, inter alia, that in August 1991 the Australian Taxation Office had requested the "involvement" of the Australian Federal Police in an investigation into "the under declaration" of income by crayfishermen at and around Geraldton in Western Australia. The crayfish industry had been the subject of close scrutiny by members of the Tax Office Audit Section since 1978. It was estimated by the Tax Office that in the region of 95 per cent of the rock lobster harvest by the cray fishing boat operators was sold to processing companies based in Geraldton and Perth. The remainder was sold offshore and to local entities by private sale. The informant said that he had been informed by the Tax Office that a number of crayfishermen had failed to declare the true amount of cash received from the sale of rock lobsters to processing companies in their income tax returns. The informant said that it was believed that these processors were knowingly concerned "in this defrauding on (sic) the Commonwealth in that their practice of not properly recording the identity of the recipient of each cash payment facilitates the non-disclosure of income." There followed an analysis which referred to the amount received in cash payments from processors for the 1987 and 1988 tax years and an eventual conclusion that there had been an understatement of income of $45 million in the years 1987, 1988 and 1989. The amount of $45 million so understated was "reasonably suspected" as being undeclared income.
The information identified the companies which had been investigated. It went on to describe the methods of payment to crayfishermen by processors. It is unnecessary to refer to each of these. It is enough to say that one method of payment was by cash which was effected by means of a docket issued by the processor's tallyman subsequently produced at the processing company's office. It was marked "to cash" and recorded the weight of the "bagged crays" accepted by the tallyman. The docket was transferable and redeemable on demand at the processing company's office. No record of what each crayfisherman received in cash appeared on the docket.
The informant then made reference to certain provisions of the Fisheries Act to which I shall later come. There followed a list of vessels engaged in crayfishing operations which were the subject of investigation, the names of their owners and the names of the owners' respective accountants.
Paragraphs 14 and 15 of the information were as follows:-

"14. I am informed and verily believe that all the information required under the provision of the Fisheries Act (WA) 1905 (sic) to be furnished in returns to the Department of Fisheries by crayfish processors, individual crayfishermen and crayfish carrier boats is forwarded to and held at the premises of the Department of Fisheries situated at 108 St. George's Terrace, Perth and the WA Marine Research Laboratories, Reserve Number 29967, Lot Number 1, West Coast Drive, Watermans. I verily believe that access to and examination of the returns and records of the Department of Fisheries collected from crayfishing boat operators, carrier boat operators and crayfish processing companies will provide reliable evidence of the true extent of the crayfish harvest from the area specified in paragraph 4 in each of the relevant financial years, both globally and in respect of individual crayfishermen, crayfish processors and carrier boat operators.

15. I verily believe a comparison of the returns and records held by the Department of Fisheries at their premises with the returns of income by crayfishing boat operators to the Commissioner of Taxation and with records obtained from crayfish processing companies will establish significant discrepancies between the actual catch and the declared catch of crayfish and thereby afford evidence as to the commission of the various offences against laws of the Commonwealth detailed hereafter."

The information said that, by reason of the preceding paragraphs, there were reasonable grounds for suspecting that there were at 108 Adelaide Terrace, Perth, and WA Marine Research Laboratories, Watermans, returns to the Department of Fisheries and records thereof relating to the catching, carriage or purchase of crayfish, which afforded reasonable grounds for believing that they would afford evidence of the commission of the offences under the Crimes Act and the Taxation Administration Act earlier referred to.
His Honour found that the Department of Fisheries in Western Australia managed commercial fisheries in the waters off the State. The industry had an annual production value of $350 million at the point of sale. The Department was constantly undertaking fisheries research at a current annual cost of $3 million. It had conducted research into rock lobster fisheries since the 1960's. The object of the research was to ensure that fisheries were managed on a sustainable basis. This involved assessing and monitoring the quantity and geographical distribution of stocks. Analysis of stocks was done by determining an index of abundance of stock in space and time using the catch per unit of fishing effort obtained from fishermen's catch and effort records.
Evidence was given for the Department by its Director of Research, Dr. Penn. He said that the guarantee of confidentiality provided for in s.19 of the Fisheries Act, to which I shall later refer, in respect of information provided by fishermen, particularly that voluntarily provided, was vital in ensuring the continuing co-operation of the industry. The confidentiality was necessary because of the industry's competitive nature. He said that it was critical that operators did not know the quantity or location of their competitors' catches. Dr. Penn also said that the Department did not collect data on the price paid for any given catch.
Dr. Penn's evidence was supported by that of the appellant, Mr. Rogers, who is the Executive Director of Fisheries. Mr. Rogers said that execution of the warrants would contradict all the understandings of the fishing industry about the confidentiality of the information which had been given to the Department. He said that in future, assuming the warrants were executed, the Department would be unable to make any assumption about the reliability of information provided by the fishing industry or be any longer sure of the continuing co-operation of the industry. He said that the research and management systems of the Department which enabled it to maintain present production on a sustainable basis would be fundamentally impaired and he claimed that it would be contrary to the public interest for such impairment to be allowed to occur by execution of the warrants.
Mr. Rogers was cross-examined about whether he had a belief that fishermen were understating their incomes. He was asked whether it was his Department's view that it was preferable for the fishermen to be able to take their chances with the taxation law and its enforcement than to compromise the Department's record keeping system. Mr. Rogers' response was that he believed that the Taxation Office already had sufficient records to pursue the matter. He referred to documents already seized from processors.
His Honour said that he accepted that information provided by fishermen, both voluntarily and under statutory compulsion, was of great importance to the proper management of a sustainable fishery. He also accepted that it was a highly competitive industry with limited stocks and that it was of great importance to the acquisition of that information that those providing it could be confident that it would not be used in a way that was detrimental to their legitimate commercial interests. His Honour concluded that, "to that extent", it could be accepted that there was a public interest in maintaining the confidentiality of the information provided. His Honour said that the public interest was supported by s.19 of the Fisheries Act. He continued:-

"That does not go so far as to say that all or most fishermen would make information available to the Department which they fraudulently or otherwise withhold from the Australian Taxation Office. Nor am I prepared to draw the inference that a substantial number of fishermen would cease to co-operate with the Department or to comply with s.18 of the Fisheries Act if they thought that the information so provided might become available to the Australian Taxation Office which, of course, has its own statutory requirement for maintaining the confidentiality of information provided to it. And even if that were so, there seems little justification in the circumstances of this case, for the identification of a public interest in maintaining its confidentiality from disclosure to a Commonwealth authority to determine whether serious offences have been committed against the laws of the Commonwealth."

His Honour then referred to another aspect of the appellant's case which was that the information obtained from the execution of the warrants would not be likely to reveal anything that was not also available to the Federal Police from purchasing processor records and would not disclose revenue generated from catches. His Honour rejected submissions based on this matter. He said that Dr. Penn in cross-examination had accepted that, where it was known that a boat operating at a particular time delivered a known weight of crayfish to a given processor, it would not be impossible to make an estimate of the price paid for those deliveries.
The submissions relied upon by the appellant before us were 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 second respondents had failed to disclose to the first respondent, before the warrants were issued, the public interest in the maintenance of the confidentiality of the information in the possession of the 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 Constitution that the Commonwealth may not act so as to impair the capacity of the States to exist or to exercise their constitutional or governmental functions, s.10 of the Crimes Act 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 of these matters was not relied upon by the appellant at first instance and his Honour did not deal with it. The submission assumes that the Department of Fisheries is a part of the government of Western Australia. Counsel for the second respondents raised a question about this assumption when they began their submissions but, as matters developed, I do not understand this question to be in issue. Counsel for the second respondents also raised the question whether the appellant should now be allowed to rely on this ground but did not argue the question strongly. In my opinion we should permit the matter to be relied upon by the appellant because it does not appear that the case would have been conducted any differently if the matter had been raised at first instance.
His Honour dealt with the questions of non-disclosure, public interest immunity and Commonwealth legislative power. He decided each of these questions adversely to the appellant and dismissed the applications.
Notices were given to the various Attorneys-General pursuant to s.78B of the Judiciary Act. This led to intervention by the Solicitor-General for the Commonwealth and the Solicitor-General for Western Australia. The Solicitor-General for Western Australia appeared also for the appellant.
The Commonwealth Solicitor-General intervened, principally for the purpose of dealing with the validity argument, but also made submissions touching on the question whether s.10 of the Crimes Act bound the Crown in right of the State of Western Australia.
The submission made to his Honour concerning public interest immunity appears to have been made, at least partly, upon the basis that the first respondent, who issued the warrants, did not take into account relevant considerations. The appellant's submission acknowledged that he had not done so because the considerations said to have been omitted from account were not drawn to his attention. These were considerations based upon the confidentiality of the statistical information furnished by the fishermen to the Department principally arising by reason of s.19 of the Fisheries Act to which I have yet to refer. This led his Honour to consider the question of full disclosure by a party making an application for a warrant and the matters which a party seeking the issue of a warrant was obliged to disclose. His Honour concluded that it was not part of the duty of the first respondent to take into account and consider the possible impact of the execution of the warrants upon the attitude of fishermen to the provision of accurate information to the Department.
His Honour said that the provisions of s.19 of the Fisheries Act could not affect the exercise of the power conferred by s.10 of the Crimes Act. He said that, by reason of the paramount operation of s.10, no question could arise of a Commonwealth officer lawfully seizing or using documents seized by virtue of a warrant being in breach of s.19. His Honour said that it was unlikely that any such class of claim was known or contemplated when s.10 of the Crimes Act was enacted. He added that only on the basis of a presumed legislative intent could a limitation based upon public interest immunity be implied into the power. His Honour said that he did not accept that s.10 of the Crimes Act was to be read down to co-exist with s.19 of the Fisheries Act. Section 10 conferred a general power in aid of investigation into the commission of offences against the laws of the Commonwealth. There was no reason to suppose that it was to be read down to accommodate the secrecy provisions of the Fisheries Act.

As to undue interference with a State's exercise of governmental functions, his Honour said that the decision of the High Court in Melbourne Corporation v. The Commonwealth of Australia (1947) 74 CLR 31 was authority for the proposition that a Commonwealth law singling out a State or States for special treatment was invalid. His Honour added that that proposition was an application of the wider principle that the Constitution contemplates and provides for the continued existence and functioning of the States. The laws made under the Constitution are federal laws in the sense that they are laws made in and for a federation. After referring to a number of authorities, his Honour concluded that the "episodic exercise" of the power to issue a search warrant authorised by s.10 of the Crimes Act was not an invalid exercise of constitutional power.
In the course of his judgment, his Honour discussed a number of authorities including the Melbourne Corporation case. He referred particularly to what had been said by Starke J , who said (at 75) that the nature and extent of a particular activity must be considered and also whether the interference was, or was not, discriminatory. In the end the question was whether the legislation or the executive action curtailed or interfered in a substantial manner with the exercise of constitutional power by the State. His Honour concluded that such interference as there would be with the confidentiality of the relevant records was not such an interference as would affect constitutional power.
His Honour also said:-

"In the present case it is not suggested that the seizure of the records themselves would constitute any direct interference with departmental functioning. What is feared is a reaction by elements of the fishing industry who have an interest, for good reasons or bad, in maintaining the confidentiality of their returns. That confidentiality however is not compromised in relation to their commercial competitors by the execution of the warrant. That is not to say that a warrant issued for the seizure of State papers may not constitute in certain circumstances such a direct interference with the operations of a State Government that it would exceed the power conferred by s.10 on constitutional grounds. A question might arise, for example, if a warrant were to issue for the seizure of current cabinet records of a State Government. However that is not a question which it is necessary to address for present purposes."

It is to be observed that, in that paragraph, his Honour seems to have approached the matter, not as one involving the validity of the legislation, but as one involving the possible validity of the warrants depending upon the nature of the particular emanations or agencies of the Crown to which they were directed.
As mentioned, the appellant relies on public interest immunity and the invalidity of s.10 of the Crimes Act insofar as it purports to apply to the Crown in right of a State. In support of their submissions on public interest immunity, counsel for the appellant said that the Commonwealth legislation did not occupy any paramount position and that, contrary to the view taken by his Honour, the Court was required to undertake the balancing exercise which frequently has to be undertaken when two public interests are in conflict. A similar submission was put to his Honour. Because of the way he approached the matter, we have not the benefit of a judgment, a judgment which would have been a discretionary one, to assist us on the question of public interest immunity, should we think that the matter should be approached differently.
I should now refer to the relevant legislation. The Fisheries Act, according to its long title, is an Act for the regulation of the fishing industry and fish farming, and for the conservation and management of fisheries and aquatic animal and plant life, and for purposes connected therewith. Part II provides for administration and provides for the appointment of inspectors and other officers and the establishment of a rock lobster industry advisory committee, and for the making of regulations in relation to a number of specified subject matters including the regulation of the sizes of nets, the times and seasons at which the taking of any species of fish shall commence and cease, the general regulation of net and line fishing, the prescription of licences, the prevention of the destruction of fish and of injury to fishing grounds, the keeping, breeding or farming of rock lobster and other species of fish in confinement, prescribing the minimum weight of rock lobster tails which may be lawfully sold, prescribing the forms of returns required to be furnished under the Act, requiring the production by persons who operate processing establishments of books, documents and other papers, the prescription of bag limits or the number or weight of any species of fish which any person may take, and a number of other matters to which it is unnecessary to refer. Inspectors are to have the right of entry on all lands whatsoever for the purpose of giving effect to the provisions of the Act or the regulations.
Part IIA of the Act provides for Commonwealth-State management of fisheries. It is unnecessary to refer further to this Part. Part III deals with fishing. Included in Part III are ss.18 and 19. Subsections (1) and (2) of s.18 are as follows:-

"18.(1) Every person engaged in any of the operations referred to in subsection (2) shall furnish a return in writing in or to the effect of the prescribed form as to the catch, sales, output, purchases, receipts, fishing gear used, time occupied in fishing, or business of that person.

(2) The operations in respect of which a return is required to be furnished under this section are-

(a) the taking of fish for sale;

(aa) the taking of any species of fish for use by professional fishermen as bait;

(ab) the taking for any purpose of any species of any aquatic organism which the

Minister has by notice issued pursuant to section 10 declared to be a protected species;

(ac) the taking for sale of any aquatic organisms other than fish;

(ad) the dealing in or purchase for resale or the export or import of live fish or other aquatic organisms or their products;

(ae) the cultivation or farming of fish or other aquatic organisms including stocking, breeding, rearing, sale, translocation and disposal;

(b) the sale of fish at any market or at any establishment at which fish is sold which has not passed through a market;

(c) the preserving, curing, smoking, drying, or salting of fish;

(ca) the processing, filleting and packing of fish;

(d) the canning, packing, or bottling of fish, parts of fish, or of any fish product intended for human consumption;

(e) the preparation of fertilizers from fish, or of any fish produce or by-product not intended for human consumption;

(f) the carriage of fish, parts of fish, or fish product, and the purchasing and receiving of fish;

(g) the furnishing of accurate information as to locality from which different varieties are taken."

Subsection 18(4) provides for penalties to be imposed in respect of any neglect or failure to furnish a return.
Section 19 of the Fisheries Act is as follows:-

"19.(1) A person who discloses or makes use of any information-

(a) contained in a return furnished under section 18(1); or

(b) furnished to him or obtained by him under this Act or in connection with the execution of this Act, commits an offence unless that information is disclosed or used-

(i) with the prior consent in writing of the person to whose activities that information relates;

(ii) for the purpose of giving effect to the objects of, and in the performance of a duty under, this Act; or

(iii) in circumstances in which that disclosure or use is permitted by this Act.

(2) A person having the custody of information referred to in subsection (1) shall, notwithstanding anything contained in any other law, not be required by subpoena or otherwise to produce that information to any court."

Amongst the documents in evidence is an extract from the Western Australian Government Gazette in which the Fisheries Amendment Regulations (No. 8) 1991 were gazetted. The appendix to the Regulations contains amended forms of returns to be furnished pursuant to s.18 and regulation 26G. It is unnecessary to refer to the detail of these forms.
At the time the warrants were issued, s.10 of the Crimes Act was as follows:-

"10. (1) If a Magistrate or Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in or upon any premises, aircraft, vehicle, vessel or place:

(a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been, committed;

(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any such offence; or that any such thing may, within the next following 72 hours, be brought into or upon the premises, aircraft, vehicle, vessel or place, the Magistrate or Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises, aircraft, vehicle, vessel or place named or described in the warrant, and to seize any such thing which he or she might find there.

(1A) A constable named in a warrant may, where it is necessary and reasonable to do so for the purposes of executing the warrant, break open such doors and receptacles as are in or upon the premises, aircraft, vehicle, vessel or place named or described in the warrant and may do so with such assistance, and by such force, as is necessary and reasonable.

(2) Subsection (1) is not intended, and shall be deemed never to have been intended, to limit or exclude the operation of a law of a Territory relating to the search of premises, aircraft, vehicles, vessels, places or persons in connection with offences against any law of that Territory."

Section 10, which derived from s.679 of the Queensland Criminal Code, was amended by Acts No. 9 of 1926, No. 84 of 1960, No. 168 of 1986 (which inserted subsec.10(2)), No. 120 of 1987 (which, inter alia, inserted subsec. (1A)), and No. 28 of 1991. The Crimes Act 1991 (No. 140 of 1991) inserted a number of new sections after s.10; see s.3. The new sections were ss.10A, 10B, 10C, 10D and 10E. Section 10A provides for search without a warrant in emergency situations, s.10B for the manner in which a constable is to exercise the power conferred by s.10A and s.10D for the retention of things seized under s.10A. It is unnecessary to refer to ss.10C and 10E.
Since it was passed in 1914, the Crimes Act has been amended on numerous other occasions, although not in relation to s.10. It may be mentioned that it has been amended by the Crimes Legislation Amendment Act 1992 since the warrants were issued on 12 February 1992. But again the amendments made by that Act did not affect s.10.
The Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (No. 59 of 1991) was assented to on 9 May 1991. It inserted a new Part IC into the Crimes Act. Part IC is entitled "Investigation of Commonwealth Offences". Section 23A, which is in Part IC, provides that any law of the Commonwealth in force immediately before the commencement of Part IC and any rule of the common law has no effect so far as it is inconsistent with the Part. The Part does not exclude the operation of a law of a State or Territory so far as it can operate concurrently with the Part. Part IC deals with the manner in which persons under arrest are to be treated including such matters as cautions, the right to an interpreter, the right to remain silent and the tape recording of information and of confessions and admissions.
I deal first of all with the appellant's submission that s.10 of the Crimes Act should be so construed as not to apply to a department of the Government of a State or to any officer thereof. Although it was not necessary for their submission, counsel also submitted that it did not apply either to a department of the Government of the Commonwealth or to a Commonwealth officer acting pursuant to his powers or duties. In support of their submission, counsel for the appellant relied upon a presumption that the Crown in any capacity is not bound by statute unless a contrary intention is found. They said that the Crimes Act, when enacted, contained no express indication that its general terms were intended to bind the Crown in any capacity. They said that its general subject matter tended strongly against a legislative intention to bind the Crown whether in right of the Commonwealth or the States. They said that the considerations were different in relation to the application of the "general offence creating provisions of the Act" to servants and agents of the Crown in any of its capacities, but that was not a matter which arose in the present case.
The warrants here authorised the second respondents, with such assistance and by such force as was necessary and reasonable, to enter at any time the premises in Adelaide Terrace and at Watermans to seize any such things as satisfied the conditions of the warrants. The warrants made special reference to subsec.(1A) empowering the second respondents, where it was necessary and reasonable to do so for the purposes of executing the warrants, to break open such doors and receptacles as were in or upon the premises and to do so with such assistance and by such force as was necessary and reasonable. It was unlikely, so it was submitted, that the legislature intended that such powers should be exercised against the Crown or its departments or agencies.
It was submitted that the provisions of Part VIIC of the Crimes Act contained a specific indication that the provisions of s.10, which are to be found in Part IA of the Crimes Act, were not to bind the Crown in any of its capacities. Part VIIC deals with pardons, quashed convictions and spent convictions. It provides in s.85ZQ that the Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. It was submitted that the presence of s.85ZQ provided a clear indication that the provisions of the Act, other than those contained in Part VIIC, were not intended to bind the Crown. Part VIIC was inserted into the Act by Act No. 108 of 1989. Another provision of this kind is Part IC which, because of the nature of its requirements, must be binding on the Crown, at least in right of the Commonwealth.
In further support of their submissions that the subject matter of s.10 tended strongly against the legislative intention that it should be binding on the Crown, counsel said that it was to be expected that Parliament, in enacting s.10, would have intended the Crown, in any of its capacities, to stand on a different footing from ordinary citizens and commercial interests. The Crown had responsibility for the maintenance of law and order. The nature of some of the records of the Crown and the comity, really co-operation, which is to be expected between the Crown in its different capacities within Australia made it improbable that the legislature intended the Crown to be bound. Further, it was unlikely that Parliament would have intended to place the Cabinet and other confidential governmental records of the Commonwealth, including those dealing with defence and national security, within the reach of a search warrant issued at the behest of a State or federal police officer. In this respect I should mention that subsec.3(1) defines "constable" to mean a member or special member of the Australian Federal Police or a member of the police force of a State or Territory.
It was said that it was likely that it was intended to leave to the government of the day whether confidential records of the Crown should be made available to police officers. And if the records of the Crown were intended to be able to be the subject of a search warrant, schemes provided for in various statutes for the confidentiality of documents (s.16 of the Income Tax Assessment Act 1936 was mentioned) could be thwarted at the instigation of State or federal police.
All these considerations demonstrated, so counsel said, that there was no justification for displacing the presumption that the principal words of s.10 should not be read as binding the Crown.
In support of their submissions, counsel for the second respondents said that the Commonwealth had a substantial interest in providing for the investigation of breaches of its laws and enforcing them. This was an interest of the widest and most fundamental kind. There was every reason to avoid a restrictive approach in the interpretation of laws which conferred such powers. Counsel said that the common law presumption that statutes were not intended to bind the Crown would yield to implications arising from the purpose of the legislation and the Crown's interest in the subject matter. The strength of the presumption would depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arose. Section 10 dealt with law enforcement which was a primary obligation of the Crown. There were no limits, other than jurisdictional ones, to the reach of this obligation. It was said that the presumption, if there were one, was a weak one and was easily rebutted because the purpose of s.10 was to help in the obtaining of evidence of the commission of offences against laws of the Commonwealth. It was also said that, notwithstanding the absence of express words, an Act may, when construed as a whole, disclose a legislative intention that one of its provisions will bind the Crown whilst others will not, and that a disclosed legislative intention to bind the Crown may be qualified in that it may not apply directly to a Crown instrumentality as distinct from employees or agents.
It is necessary now to turn to the authorities. The former rule of construction which was based on there being a presumption that statutes of general application were not intended to bind the Crown in any of its capacities unless there was manifested a contrary intention has been modified by the decision of the High Court in Bropho v. State of Western Australia (1990) 171 CLR 1. In question was the proper construction of s.17 of the Aboriginal Heritage Act 1972 (WA) which prohibited a person from destroying or damaging any aboriginal site or object on or under such a site. It was held that s.17 applied to employees and agents of the Crown acting in the course of their duties. It was said that a statute applied to and bound the Crown if its provisions, including its subject matter and disclosed purpose and policy, when construed in the context of permissible extrinsic aids, disclosed an intention to bind the Crown. It was not necessary that that intention should be manifest from the terms of the statute or that its purpose would be wholly frustrated if the Crown were not bound. It was recognised that this approach departed from settled authority particularly Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58 and a number of later authorities including Brisbane City Council v. Group Projects Pty. Limited (1979) 145 CLR 143 and Bradken Consolidated Limited v. The Broken Hill Proprietary Company Limited (1979) 145 CLR 107 especially in relation to the approach in that case of Gibbs ACJ; see particularly at 121-2.

Subject to the effect of Bropho upon it, Bradken is an important authority for present purposes because it is one of the few authorities dealing with the construction of a Commonwealth statute from the point of view of whether it was intended to apply, not to the Crown in right of the Commonwealth, but to the Crown in right of a State. But before coming to Bradken, it is necessary to consider Bropho in more detail. Two judgments were delivered, one a joint judgment of Mason CJ and Deane, Dawson, Toohey, Gaudron and McHugh JJ. and the other of Brennan J. Except in one important respect, which has a bearing on the present exercise of construction, the two judgments, which arrived at the same conclusion, approached the matter similarly.
The joint judgment made extensive reference to earlier authorities both in the House of Lords and in the High Court. After referring to the judgment of Lord Campbell CJ in Moore v. Smith (1859) 5 JurNS 892 (at 893), where his Lordship said that it was a sacred maxim that the Crown was not bound by an Act of Parliament unless it was quite clear from the language employed that the legislature contemplated including the Crown, their Honours said (at 19):-

"Whatever force such considerations may continue to have in relation to legislative provisions which would deprive the Crown 'of any part of (the) ancient prerogative, or of those rights which are ... essential to (the) regal capacity' (see per Griffith CJ, Sydney Harbour Trust Commissioners v. Ryan (1911) 13 CLR, at p 365, they would seem to have little relevance, at least in this country, to the question whether a legislative provision worded in general terms should be read down so that it is inapplicable to the activities of any of the employees of the myriad of governmental commercial and industrial instrumentalities covered by the shield of the Crown. So to say is not to assert the possibility of drawing a clear and fixed distinction between functions which are properly or essentially governmental and those which are not (cf. per Windeyer J, Ex parte Professional Engineers' Association (1959) 107 CLR 208, at p 275. It is simply to point to the fact that the historical considerations which gave rise to a presumption that the legislature would not have intended that a statute bind the Crown are largely inapplicable to conditions in this country where the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour and where it is a commonplace for governmental commercial, industrial and developmental instrumentalities and their servants and agents, which are covered by the shield of the Crown either by reason of their character as such or by reason of specific statutory provision to that effect, to compete and have commercial dealings on the same basis as private enterprise. It is in that contemporary context that the question must be asked whether it is possible to justify the preservation in our law of an inflexible rule which, in the absence of express reference, requires a reading down of the general words of a statute to exclude the Crown (and its instrumentalities and agents) unless it is 'manifest from the very terms of the statute' that it was the legislative intent that the Crown should be bound and which, in ascertaining whether such a legislative intent is manifest, allows account to be taken of the purpose of the statute only if it is possible to affirm that that purpose must be 'wholly frustrated' unless the Crown is bound."

Their Honours went on to say (at 20) that the only real argument of substance favouring the preservation of such an inflexible and stringent rule lay in the weight of authority. They concluded that the rule did not of itself provide an impregnable foundation for its own observance and that there remained no basis in principle for unqualified insistence upon the rule as an inflexible one with the stringent implications "which recent cases have accorded it".
Their Honours then said (at 22-23):-

"It follows from what has been said above that considerations of principle preclude recognition of an inflexible rule that a statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by 'necessary implication' in the limited and stringent sense explained above. If such a legislative intent appears when the relevant legislative provision is construed in a context which includes the presumption against the Crown and its instrumentalities or agents being so bound, that legislative intent must, as a matter of principle, prevail. That being so, earlier judicial statements to the effect that it must be manifest from the very terms of the statute itself that it was the legislative intent that the general words of a statute should bind the Crown, or that it must be apparent that the purposes of the statute would be wholly frustrated unless the Crown were bound, should be read as applying to the context of the particular statutory provisions involved in the cases in which they were made. Such statements should no longer be seen as precluding the identification of such a legislative intent in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context. The effect of the foregoing is not to overturn the settled construction of particular existing legislation. Nor is it to reverse or abolish the presumption that the general words of a statute do not bind the Crown or its instrumentalities or agents. It is simply to recognize that a stringent and rigid test for determining whether the general words of a statute should not be read down so as to exclude the Crown is unacceptable. In that regard, it should be remembered that the view that the rule of construction is not 'inflexible, but is merely a presumption in favour of a particular meaning' was supported by statements of authority in this country at the time when the Province of Bombay Case was decided by the Privy Council (see, e.g. Minister for Works (WA) v. Gulson (1944) 69 CLR, at p 358.) On the other hand, it must be acknowledged that, in the period since the Province of Bombay Case, the tests of 'manifest from the very terms of the statute' and 'purposes of the statute being otherwise wholly frustrated' came to be established as decisive of the question whether, in the absence of express reference, the general words of the statute bind the Crown. That being so, it may be necessary, in construing a legislative provision enacted before the publication of the decision in the present case, to take account of the fact that those tests were seen as of general application at the time when the particular provision was enacted. If, however, a legislative intent that the Crown be bound is apparent notwithstanding that those tests are not satisfied, that legislative intent must prevail. In the case of legislative provisions enacted subsequent to this decision, the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises. If, for example, the question in issue is whether the general words of a statute should be construed in a way which would make the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong (cf. Canadian Broadcasting Corporation v. Attorney-General

(Ontario) (1959) SCR 188, at pp 204-205. On the other hand, if the question in issue is of the kind involved in the present case, namely, whether the employees of a governmental corporation engaged in commercial and developmental activities are bound by general provisions designed to safeguard places or objects whose preservation is of vital significance to a particular section of the community, the presumption against the applicability of general words to bind such employees will represent little more than the starting point of the ascertainment of the relevant legislative intent."

Brennan J said (at 27-29):-

"To adopt in such a context a stringent formulation of the presumption (such as that found in Brisbane City Council v. Group Projects Pty. Ltd. (1979) 145 CLR 143, at pp 167,169 and in Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at pp 61, 63) would be to confer on the activities of the Executive Government an extremely wide exemption from the operation of the general criminal law. It can be conceded that Parliament must have intended that the Executive Government should be exempt from some provisions of the general criminal law, but Parliament can hardly have intended to exempt all activity engaged in on the Government's authority from the general criminal law unless the stringent conditions referred to in the Brisbane City Council and Bombay cases are satisfied. Historically, the courts distinguished between some areas of Crown activity which have and some which have not been immune from affection by statutory provisions of general application: see Sydney Harbour Trust Commissioners v. Ryan (1911) 13 CLR 358, at p 365, per Griffith CJ. True it is, as Professor Friedmann pointed out ('Public Welfare Offences', Modern Law Review vol. 13 (1950) 24, at pp 31-32) that the language in which the distinction was expressed in earlier times is not satisfactory for contemporary application, but I would respectfully agree with the majority that it is appropriate to determine the scope of the exemption of Crown activity by reference to all the circumstances which might legitimately reveal the actual or imputed intention of the legislature or assist in imputing to the legislature an intention which it might reasonably have formed had the legislature adverted to the question. Thus the presumption cannot be put any higher than this: that the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances. As the Court must determine whether the legislature intended (or would have intended had the question been addressed) that the statute should affect the activities of the Executive Government, the circumstances which properly relate to that question must be considered. Those circumstances include the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound.

........ ........ ........ ........ ........ ........ ... I would add a brief mention as to the effect of the reasons for judgment in this case upon the interpretation of statutes earlier enacted. In my respectful opinion, it would be a legal fiction to impute to the legislatures of this country or their parliamentary counsel an intention fluctuating with the changing formulations of the presumption by the courts of this country and of England. The question whether the Crown is bound by a statute arises ordinarily in reference to statutes enacted without conscious animadversion to the strength of the presumption and, if it be right to look at all the relevant circumstances to determine what the intention of the legislature was or to determine what intention ought fairly to be imputed to the legislature when it enacts a statute in the future, equally it must be right to look at all the relevant circumstances when interpreting a statute enacted in the past."

It is in that latter respect that there is some difference of view between Brennan J and the majority of the Court.

Bradken concerned the question whether the Trade Practices Act 1974 bound the Crown in right of a State. Central to the Court's consideration of the problem was s.2A of the Trade Practices Act which provided that, subject to the section, the Act bound the Crown in right of the Commonwealth insofar as the Crown in right of the Commonwealth carried on a business, either directly or by an authority of the Commonwealth. The Court held that the Trade Practices Act did not bind the Crown in right of a State. Gibbs ACJ reached that conclusion because an intention to bind the Crown in right of a State did not appear by express words or necessary implication in the Act. Stephen J also applied the same rule of construction, referring to the Province of Bombay case and also to the judgment of Barwick CJ in The Commonwealth v. Rhind (1966) 119 CLR 584 (at 598). Stephen J thought the principle so entrenched in our law that only statute could alter it (at 127).
Stephen J considered how the rule should apply in a federal setting. He said (at 128) that the choice had always been seen as lying between confining the rule to the Crown in right of the enacting legislature, only that Crown being immune from its statutes unless bound by express words or necessary implication, or, instead, extending the immunity to the Crown in right of every government which represented it. After discussion of authorities and texts, he concluded (at 129) that he should adopt the wide view of the rule. In the light of the authorities he thought it was the prevailing view. He reached the conclusion that, since the Trade Practices Act was devoid either of express reference binding the Crown in right of the States or of necessary implication to that effect, it should be interpreted as not binding the Commissioner for Railways of the State of Queensland.
Stephen J said (at 129) that he had not overlooked the fact that s.2A of the Act bound the Crown in right of the Commonwealth. He added (at 129):-

"(B)ut I gain no assistance from this: while the fact that only the Commonwealth is thus expressly mentioned might suggest that, but for that express mention, the Act would not apply to the Crown, in whatever right represented, it also accords equally well with precisely the opposite view, that, since an Act binds all Crowns other than that in right of the enacting legislature, need for express mention only arises in the case of the Crown in right of the Commonwealth."

That view of the significance of s.2A of the Trade Practices Act did not find favour with Mason and Jacobs JJ. They said (at 136):-

"It may further be added that in the case of the Trade Practices Act nothing less than a positive presumption of legislative intention to bind the Crown in right of the States would avail the applicants. Section 2A expressly provides that subject to the section the Act (other than Pt X) binds the Crown in right of the Commonwealth in so far as the Crown in that right carries on a business, either directly or by an authority of the Commonwealth. Even if there were no presumption of an intention not to bind the Crown in right of a State but likewise no presumption of an intention to bind that Crown, so that it was necessary to examine the particular nature of the provisions made by the statute, the expression of an intention to bind the Crown in right of the Commonwealth and the absence of a like expression in respect of the Crown in right of the States would as a matter of construction lead to the conclusion that the Crown in right of the States was not intended to be bound."

In relation to the question whether the statutory presumption that the Crown was not to be bound by legislation unless there were express words which bound it or it was bound by necessary implication applied only to the Crown enacting the legislation, or to the Crown in right of the other polities which make up the Australian federation, their Honours said (p 136):-

"The concept first developed in R. v. Sutton (1908) 5 CLR 789 that a legislature intends to bind all organs of government other than the organ of government of that legislature is a concept which wholly fails to take account of the fact that there is one body of law applicable to any particular citizen or in any particular part of Australia even though it may be and usually is a composite body of law. The body of statutory law, whatever its source, is presumed to be law applying to subjects, not to the Crown, and we can see no reason why in this respect any distinction should be drawn between the various legislative sources of that body of law."

The fifth member of the Court in Bradken was Murphy J who dissented. For that reason, I have not referred to the detail of his judgment.
To the extent that the approach in Bradken differed from the approach of the judges in Bropho, it is Bropho which must be applied; but Bradken is of assistance in two respects in this case. Firstly, it shows that, where the question is whether the Crown is bound or not bound and there are no particular words to be considered, either the Crown in right of each polity will be bound or the Crown will not be bound in any of its capacities. So in the present case, s.10 of the Crimes Act will either bind the Crown in right of the Commonwealth and in right of the States or it will not bind it in right of any of them. Thus the submission of counsel for the second respondents that s.10 bound the Crown in right of each State but not in right of the Commonwealth should be rejected. The submission made by the Solicitor-General for the Commonwealth that s.10, if it bound the Crown, bound the Crown in right of both the Commonwealth and the State of Western Australia was correct.
The other aspect of the decision in Bradken which is of assistance is the significance accorded to s.2A of the Trade Practices Act. Mason and Jacobs JJ thought it was determinative of the outcome of the case; Stephen J thought it was of no significance. The reason that matter is of relevance here is because of the provisions of s.85ZQ of the Crimes Act. The views of Mason and Jacobs JJ in Bradken, tend to support the proposition that the legislature, in enacting Part VIIC of the Act in 1989, thought that, in the absence of a provision such as s.85ZQ, the Act would not bind the Crown.
I leave these matters aside for the moment and return to Bropho. The question that must be answered is whether Bropho should be applied at all bearing in mind what was said in the joint judgment about legislation in existence prior to the decision which was given in 1990. It is clear that the judges thought that the settled interpretation of statutes existing at that time ought not be disturbed. But I do not take this to mean all statutes then in existence; rather I think their Honours had in mind the case of statutes which had received judicial interpretations in the past in which the question whether or not the Crown was bound was actually decided. It is not clear to me, as was suggested in argument, that their Honours intended their views to apply only to the construction of statutes coming into force after 1990 with the consequence that the old rule propounded in the Province of Bombay case and the cases which followed it, would continue to apply in respect of statutes, not previously construed, passed before 1990.

There are other considerations to be mentioned. The particular words of s.10 with which we are concerned have not substantially changed since 1914 when the Crimes Act was enacted. But, as mentioned, the Act has been amended many times. A number of these amendments have affected s.10 although not materially. Some amendments to s.10 have occurred after 1990 and before the events which concern us in this case. It seems to me that we should therefore give s.10 an ambulatory construction and treat it, not as a section which speaks at 1914, but as a section which needs to be construed in a modern setting against the background of continuous amendment over the years including recent years; cf. Statutory Interpretation, F.A.R. Bennion, 2nd ed. (1992) (at 618) where the author refers to the fact that an ongoing Act is taken to be always speaking; see also 476 and 632-3.
The ambit of the Crimes Act has widened considerably since 1914. When it was passed it contained 90 sections. I have not counted the number of sections which there now are. Nominally there are 91 but the Act contains seven new Parts and a substantially increased number of sections due to the adoption of the current practice of adding capital letters to numbers. It is obviously designed to enable modern law enforcement agencies to enforce the law more efficiently and to provide a range of offences necessary to deal with the increasing complexity of society and its affairs and of criminal activity in society.
Nevertheless, it would not be right, in a matter as fundamental as that in question here, at least in the absence of express words, to take the view that, although the Act may not have bound the Crown in 1914, subsequent amendments not dealing with this question, and subsequent events, had brought about a situation in which the Crown, although not originally bound, was now bound.
I think that all that one can conclude is that s.10 of the Crimes Act, not in this respect having received a settled construction, ought now be construed in accordance with the principles propounded in Bropho and not in accordance with the principles propounded in the Province of Bombay case. That means that the matter must be decided by gleaning Parliament's intention from a consideration of the Crimes Act as a whole in order to determine its purpose, scope and purview. One also needs to consider "the identity of the entity in respect of which the question of the applicability of the provision arises"; Bropho per the majority (at 23) or "the nature of the activities of the Executive Government which would be affected if the Crown is bound"; Bropho per Brennan J (at 28). And, most importantly, one needs to recognise that there is no longer "a stringent and rigid test" for determining whether the general words of a statute bind the Crown.
As the Court in Bropho points out, the activities of government today, perhaps more so than ever before, are multifarious. There are the traditional functions of government of which law enforcement is one. It is one of the functions of government of relevance in the present case. Counsel for the second respondents said that it was of vital public importance that law enforcement agencies have the ability to procure the production of documents from any source to assist them in their detection and prosecution of criminal conduct. Events had occurred in recent years which showed that criminal activity had been undertaken in statutory bodies entitled to the shield of the Crown and even in departments of government. It was of high public importance that an investigator or a prosecutor had access to all relevant information. As a matter of policy, there was not, in counsel's submission, any reason to distinguish between bodies or persons who were, or who were acting for, the Crown and those who were not. There was no warrant for reading down the general words of s.10 to exclude the Crown from its purview.
But, as counsel for the appellant emphasised, there is another side of the coin. The Western Australian Fisheries Department is not a statutory entity set up to engage in some trading or financial activity. It is not itself an entity; it has no existence separate from that of the Crown in right of the State of Western Australia whose Department it is. The Fisheries Act, as its long title (see p 15 (supra)) and its various provisions make clear, is to regulate, conserve and manage fisheries in Western Australia. An important part of its activities is the conservation of fish and fishing resources and the management of these resources so that the fishing industry will remain a viable one in the future. That is an important function of government. But it is just one of a vast range of functions which governments undertake. Some may be thought to be more significant and more vital than others. Amongst these may be thought to be the nation's defence, its internal security and its relations with other countries as well as law enforcement.
In the way the case was argued, no distinction was drawn between the various functions of government which there are. Counsel for the first respondent approached the matter on the basis that, either s.10 bound the Crown in right of each of the States in respect of the whole range of their activities or it did not. Counsel for the appellant approached the matter similarly, subject to their contending that, if it bound the Crown in right of the States, the section also bound the Crown in right of the Commonwealth. That may not be the correct approach, although there are statements in the judgments in Bropho which suggest that it may be; see 171 CLR at 19 and 23 in the passages earlier quoted from the joint judgment. Whatever the position may now be, it seems not unlikely that, as this area of the law undergoes further development, the view may be taken that it may be appropriate to draw a distinction between cases involving what are essentially governmental functions and what are functions of a different kind, for example, trading activities - the activities of the Commissioner for Railways (Q) in the Bradken case provide an example.
That aspect of the case was touched on by the primary Judge towards the end of the passage earlier quoted from his judgment where he said that a warrant issued for the seizure of State papers might constitute, in certain circumstances, such a direct interference with the operations of a State Government that it would exceed the power conferred by s.10 on constitutional grounds. His Honour added, "A question might arise, for example, if a warrant were to issue for the seizure of current cabinet records of a State Government." His Honour said what he did, not in the course of dealing with the submission now under consideration which was not relied upon before him, but in relation to what he said about the submission based on the Melbourne Corporation case.
A matter upon which counsel for the appellant placed great emphasis was that, if the law was as the second respondents submitted it was, no area of government activity would be immune from a search warrant. Search warrants could be directed to the cabinet offices of the Commonwealth and each of the States and Territories, the offices of the Prime Minister and each of the premiers, the offices of the Department of Foreign Affairs and Trade, and each of the country's police and security forces. That would be the consequence of giving s.10 of the Crimes Act the construction contended for by counsel for the second respondents.
There is some suggestion to be found in the submissions of counsel for the second respondents that this problem might be solved by the party to whom, or to whose office, a warrant was directed objecting to the use of documents or other things seized on the ground of public interest immunity and letting the courts decide whether or not the documents could be used. But, as will be seen, there is a real question whether public interest immunity applies at all in this area. In any event, the suggested solution to the problem does not, in my opinion, provide any answer to the quite serious matters relied upon by counsel for the appellant. Questions of public interest immunity usually arise when documents are subpoenaed to be produced before a court or where there is a question concerning their discovery. The party called upon to produce them provides evidence to the court which is designed to persuade the court that there are reasons of public policy why the documents should not be produced or, if they are produced to the court, not made available for inspection by one or more of the parties. Those may not be the only circumstances in which public interest immunity will arise for consideration, but they are the usual ones.
In a case such as the present, the party affected by a search warrant has no opportunity to decide whether to bring the documents to court or to make an objection even to that being done. Nor does he or she have an opportunity of deciding to take the documents to court and of making a submission to the court that the documents should not be made available for inspection. It may be that in a given case arrangements will be made, as has happened in the present case, for the documents which have been seized to be held pending the court's decision; or a department may produce the documents on an undertaking that they will be held until an appropriate application to the court can be made. But that will not always be the position and the fact that it will not be, means that it is not a relevant matter to take into account in coming to a conclusion on the question of construction which is involved.
An important matter to bear in mind is the provision in subsec.10(1A) of the Crimes Act which empowers a constable named in a warrant, where it is necessary and reasonable to do so for the purposes of executing the warrant, to break open such doors and receptacles as are in or upon the premises, aircraft, vehicle, vessel or place named or described in the warrant. The constable may exercise this power with such assistance, and by such force, as is necessary and reasonable. If the second respondents' submission be correct, it must follow that a warrant could be issued empowering a constable, with such assistance as he required, to break down doors and open safes in the cabinet offices of the Commonwealth and of each of the States and Territories. In the way that the matter was put to us, there is no escape from this conclusion.
I recognise that the examples I have supposed may be regarded by some as extreme. I concede that they are, but I have chosen them in order to emphasise the ambit s.10 of the Crimes Act would have if the submissions of the second respondents prevailed. The records of the Fisheries Department of Western Australia may not be so significant or so sensitive as some of the records kept by other departments of government whether State or federal. But it is clear from a consideration of the Fisheries Act as a whole, and the presence in it of s.19, that the Parliament of Western Australia regarded the returns for which s.18 provided and the need to keep them confidential, as highly important for the preservation of one of the State's resources, namely, its fisheries and its fishing industry. Undoubtedly there are degrees of difference in the relative importance of governmental activities; there will not be unanimity about priorities. For present purposes, it is sufficient to say that the Fisheries Department of Western Australia has important public functions which are essentially governmental in character. For the exercise of construction which needs to be undertaken in this case, they are not, relevantly speaking, distinguishable from the apparently more critical functions of other departments to which I have referred.
An independent consideration is the significance to be accorded s.85ZQ of the Crimes Act earlier referred to. The presence in the Act of this provision lends support to the appellant's case. It suggests that, without it, the Crown would not have been bound by the provisions of Part VIIC of the Act. Its presence is an indication that the Commonwealth Parliament thought that the provision was necessary to ensure that the Crown in its various capacities was bound by the Part. The provisions of Part IC of the Crimes Act have a similar significance.
The various matters to which I have referred have persuaded me that the legislature did not intend s.10 to bind the Crown in right of the Commonwealth or in right of any of the States. I am of opinion that the submissions made by the appellant should be accepted. The consequence is that the warrants, directed as they were to a department of the Government of Western Australia were unauthorised by the legislation and are invalid.
That conclusion is enough to dispose of the appeal but I should say something of the remaining matters upon which counsel for the appellant relied, namely, non-disclosure, public interest immunity and substantial interference with State powers or functions. Each of these matters must be considered on the assumption, contrary to the conclusion at which I have arrived, that s.10 of the Crimes Act does bind the Crown in right of the State of Western Australia.
The first matter is the non-disclosure of the confidentiality of the records sought to the first respondent when he issued the warrants. It was submitted that his attention should have been drawn to s.19 of the Fisheries Act and to the likelihood that the records which might be seized, or some of them, would be confidential. But, although that provision was not mentioned in the information, the Fisheries Act was. Particular mention was made of the provisions of s.18 requiring fishermen to lodge returns. This, in my opinion, was sufficient to draw the first respondent's attention to the entirety of the provisions of the Act especially to s.19 which is in the same Part of the Act as s.18 and which, of course, follows it.
To the extent that the matter was put more generally, that is to say on the basis of some obligation to tell the first respondent that the records were, or might be, confidential, I do not understand how such a view can prevail. The only matter which would indicate to the informant that the records were or might be confidential was s.19. Insofar as the submission is more widely based, it requires the informant to speculate on a matter about which he could have had no direct knowledge.
Quite apart from these considerations, there is a real question whether the matter alleged not to have been disclosed was of relevance. The legislative provision which was directly in question was s.10 of the Crimes Act. It provided for the matters about which the first respondent was required to be satisfied. On the assumption upon which I am dealing with the matter, that provision bound the Crown in right of the State of Western Australia. The fact that the returns were confidential records by reason of the operation of s.19 of the Fisheries Act was not a consideration relevant to be taken into account when the warrants were issued. The non-disclosure point, in my opinion, fails.
What I have said disposes also of the public interest immunity point. Although the matter is not free from difficulty, I think the better view is that the problem must be solved by reference, either to the proper construction of s.10 of the Crimes Act or by resort to s.109 of the Constitution. On the basis that s.10 of the Crimes Act binds the Crown in right of the State of Western Australia, it empowers the issuing of a search warrant against an agency of the Western Australian Government. The presence of s.19 in the Fisheries Act is irrelevant to the exercise of that power. If, contrary to that view, it is not, then, to that extent, there is an inconsistency between the federal and State legislation which must be resolved by treating the federal law as prevailing over that of the State. An alternative, and in my view, preferable approach, is to say that the provisions of s.19(1)(b)(iii) and s.19(2) of the Fisheries Act should be read down so as to subject its operation to any valid exercise of relevant Commonwealth legislative power. On any of these views, the submission based on public interest immunity must fail.
I should add that there is a view that, in any event, that public interest immunity is not available in extra-curial proceedings. This matter is comprehensively discussed in Law of Privilege, S.B. McNicol (1992) (at 377-382). There the author expresses the opinion that there are circumstances in which the immunity will be available in other than judicial proceedings. It is not necessary to reach a conclusion on this point but, so it seems to me, the better view is that the opportunity to claim the immunity will not arise until a matter comes before a court, or perhaps an administrative tribunal, and an attempt is made to use the documents for the purposes of pending proceedings.
That leaves the submission based on the Melbourne Corporation case. In this respect, I am in agreement with the reasons and conclusions of French J and have nothing to add to what he has said.
In the result, I would allow the appeal because s.10 of the Crimes Act does not bind the Crown in right of the State of Western Australia. I would dismiss the appeal insofar as it was based on the remaining submissions relied upon by counsel for the appellant. The orders of the primary Judge dismissing the appellant's applications should be set aside and, in lieu thereof, it should be declared that the warrants in question are invalid. Although injunctive relief was sought in the application for review, I see no necessity to grant it. Because the appellant has succeeded on a point not relied upon below, I would not disturb the order for costs made by the primary Judge. The hearing of the appeal occupied somewhat more than a day. The bulk of hearing time was taken up with argument on the question upon which the appellant should, in my opinion, succeed. I would order that the second respondents pay the costs of the appeal of the appellant but limited to a hearing occupying one day.

JUDGE3

LEE J I have had the advantage of reading the reasons for judgment of Sheppard J and adopt his Honour's statement of the relevant facts and agree with his Honour's conclusions and with the orders he proposes. I take the opportunity to add the following observations.

At common law, the Crown had no authority to enter and search the premises of a citizen unless a warrant authorizing that conduct had been issued by a justice, or a Judge, satisfied that there were reasonable grounds for that action. (See Stone, Entry, Search and Seizure (2nd Ed.) para.1.20; Carter, The Law Relating to Search Warrants p.1 et seq.) Such a warrant permitted the Crown to enter premises for the purpose of locating and preserving stolen property but did not permit a search for or the seizure of other property, such as papers or documents. (See Carter p 6 et seq; Crowley v. Murphy (1981) 52 FLR 123 per Lockhart J at p 141-143; Polyviou, Search and Seizure pp 6-9.)
The statutory power to issue a search warrant contained in s.10 of the Crimes Act 1914 ("the Crimes Act"), or in its precursor, s.679 of the Queensland Criminal Code (see Review of Commonwealth Criminal Law, 4th Interim Report at p 257) provides a mechanism by which persons administering the criminal law may obtain wider powers of search and seizure than available at common law but the central purpose for which the common law permitted such warrants to issue underlies the legislative provisions, namely to assist the prosecution of criminal offences by facilitating the seizure and preservation of real evidence. It is the intention of the legislature that the public interest in due prosecution of the criminal law be served by placing in the custody of prosecuting authorities any form of property likely to assist in the proof of an offence that has been committed, or is suspected of having been committed. However, it remains a cardinal principle of law that a search warrant affects the liberty of a subject and should never be issued when its purpose may be achieved by less drastic means. (See Carter p 13.)

Under s.10 a warrant may not be issued to authorize a person to enter and inspect private premises for the purpose of obtaining information about the occupants, the contents of the premises or manner of use of the premises. A warrant may only be issued if a magistrate or justice is satisfied, by information on oath, that there is reasonable ground for suspecting that there is, or will shortly be, specific property on the premises which would be relevant to the prosecution of an offence and should be seized for better effecting that purpose. (See George v. Rockett (1990) 170 CLR 104.)
Parliament may except the Crown, that is the Executive Government, from the operation of a general criminal law but ordinarily all servants and agents of the Executive would be subject to that law. (See Bropho v. State of Western Australia (1990) 171 CLR 1 per Brennan J at p 27; A. v. Hayden (1984) 156 CLR 532 per Brennan J at pp 580-581; Commonwealth of Australia v. Northern Land Council (1993) 112 ALR 409 at p 415.) The fact that the general criminal law extends to the activities of servants and agents of the Executive, however, is only one matter to be considered in ascertaining whether Parliament intended that s.10 of the Crimes Act provide a power to authorize entry upon and search of premises occupied by the Crown in the right of the Commonwealth or of a State.
In addition to the reasons adumbrated by Sheppard J, I would include the following to conclude that s.10 of the Crimes Act does not display any intention on the part of Parliament to create a power to issue a warrant to authorize entry upon premises in which the affairs of Executive Government are conducted, either Commmonwealth or State.
First, the thrust of the legislation is to make lawful an entry upon private premises that otherwise would be a trespass. It would have been apprehended by the legislature that activities in premises occupied by the Executive would be subject to the absolute direction and control of the Executive and any need to enter such premises to preserve property necessary for the due administration of the criminal law by the Crown could be effected by due and swift exercise of Crown powers.
Secondly, in Pt.VII (ss.77-85D) of the Crimes Act, which deals with offences of espionage and communication of official secrets, Parliament has provided an express power to issue a warrant to enter and search premises and seize property believed to be evidence of, or relating to, any offence against that part of the Act. In s.79 of the Crimes Act the definition of "prescribed information" and the offences of communication or possession of prescribed information without authority show that such offences may involve servants or agents at a high level of Executive Government to whom some Executive powers may have been delegated and that in those circumstances detection and preservation of incriminating material may require the empowerment of a prosecuting authority to enter premises of the Executive to search for and seize that material.
Although the power in s.82 of the Crimes Act to grant a search warrant is more extensive in some respects than the power available under s.10, in large measure it repeats the provisions of s.10, an unnecessary step if that section already applied to premises occupied by the Executive. No doubt, it is the exceptional nature of such a warrant that requires the warrant to be the subject of a report to the Attorney-General in respect of all circumstances relating to its grant and execution.
In some respects the conclusion that s.10 does not extend to premises or places on which the affairs of Executive Government are administered, may be unsatisfactory given the breadth and commercial nature of much Executive activity in modern times and the tendency for devolution of the control of those activities. If so, it will be a matter for the legislature to address.

[1993] FCA 475

16 JULY 1993