Rogers, Peter v Jacobsen, Johannes

CATCHWORDS

ADMINISTRATIVE LAW - search warrant issued under s 10 of the Crimes Act 1914 (Cth) - requiring production of fishermen's returns provided to the Fisheries Department of Western Australia - warrant issued to Australian Federal Police in connection with possible offences against Commonwealth law - whether public interest immunity attaches to fishermen's returns to prevent execution of the warrants - existence of public interest immunity a discretionary question involving balancing of competing interests - interest in maintaining confidentiality of information provided in confidence pursuant to statute - competing public interest relating to investigation of possible offences against Commonwealth law.

Judiciary Act 1903 (Cth) - s 39B, s 79
Crimes Act 1914 (Cth) - s 10
Income Tax Assessment Act 1936 (Cth) - s 16, s 263
Taxation Administration Act 1953 (Cth) - s 3C
Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 5(1)
Australian Federal Police Act 1979 (Cth) - s 60A
Fisheries Act 1905 (WA) - s 18, s 19
Public Service Regulations - reg 35

Alister v The Queen (1983-1984) 154 CLR 404
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commission (No. 2) [1974] AC 405
George v Rockett (1990) 170 CLR 104
New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (Unreported, 30 August 1995)
Arno v Forsyth (1986) 9 FCR 576
Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403
Jacobsen v Rogers (1995) 127 ALR 159
Brewer v Castles (No 3) (1984) 52 ALR 581
Sankey v Whitlam (1978) 142 CLR 1

PETER ROGERS v JOHANNES JACOBSEN AND TERENCE LESTER DIBB

No. WAG 85 of 1995

FOSTER, HILL & LINDGREN JJ
16 NOVEMBER 1995
SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA )
  )
WESTERN AUSTRALIA DISTRICT REGISTRY     ) No. WAG 85 of 1995
  )
GENERAL DIVISION                  )

On appeal from the Honourable Mr Justice French in the Federal Court of Australia held at Perth in Action No. WAG 28 of 1995 (on remittal from the High Court of Australia).

BETWEEN:PETER ROGERS

Appellant (Applicant)

AND:JOHANNES JACOBSEN AND TERENCE LESTER DIBB

Respondents

JUDGES MAKING ORDERS: FOSTER, HILL & LINDGREN JJ

DATE: 16 NOVEMBER 1995

PLACE: SYDNEY (HEARD IN PERTH)

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed.

The appellant pay the respondents' costs of this appeal.

The appellant pay the respondents' costs of:

(i)The original application being WAG Nos 19 and 20 of 1992;

(ii)The first appeal being WAG No 203 of 1992;

(iii)The remitted application being WAG No 28 of 1995.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
WESTERN AUSTRALIA DISTRICT REGISTRY     ) No. WAG 85 of 1995
  )
GENERAL DIVISION                  )

On appeal from the Honourable Mr Justice French in the Federal Court of Australia held at Perth in Action No. WAG 28 of 1995 (on remittal from the High Court of Australia).

BETWEEN:PETER ROGERS

Appellant (Applicant)

AND:JOHANNES JACOBSEN AND TERENCE LESTER DIBB

Respondents

CORAM: FOSTER, HILL & LINDGREN JJ

DATE: 16 NOVEMBER 1995

PLACE: SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

FOSTER J: This is an appeal from the decision of French J given on 21 July 1995. His Honour dismissed an application seeking to restrain the execution of two search warrants issued under s 10 of the Crimes Act 1914 (Cth) ("the Crimes Act"). The application had been remitted to this Court by order of the High Court of Australia in circumstances to which I shall refer later. The basis of the application was that the documents proposed to be seized under the warrant were protected from seizure on the ground of public interest immunity.

BACKGROUND FACTS
The background to this appeal may be stated shortly as follows:-

(a)On 12 February 1992, a Stipendiary Magistrate for the State of Western Australia issued two search warrants under s 10 of the Crimes Act. The warrants authorised two named members of the Australian Federal Police, the respondents Jacobsen and Dibb, to enter specified premises of the Fisheries Department of Western Australia and to seize specified categories of documents which might afford evidence of particular offences against Commonwealth law. These offences related to the alleged evasion of income tax in the Western Australia rock lobster fishing industry. The categories of documents specified were:-

Returns furnished pursuant to the Fisheries Act 1905 of Western Australia and relating to rock lobster.

(ii)Documents and information relating to the catching, carriage or purchase of rock lobster.

(iii) Files.

The warrants further limited these classes of documents by imposing the condition that they relate to one or more of the following categories of information:-

Information regarding 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 (inclusive).

(ii)Information regarding the quantity of rock lobster purchased or received by certain specified organisations during the period.
(iii)Information regarding the quantity of rock lobster transported or carried by specified vessels.

This information was to relate only to rock lobsters caught, carried or purchased in particular specified areas off the West Australian coast.

A further limitation on seizure was imposed, namely, that there be reasonable grounds for believing that the documents would afford evidence as to the commission of specified offences against the Crimes Act and the Taxation Administration Act 1953.

(b)On 25 February 1992, two applications were filed by the present appellant Peter Rogers, the Executive Director of Fisheries for Western Australia, one in apparent reliance on s 39B of the Judiciary Act 1903 and the other under the Administrative Decisions (Judicial Review) Act 1977. These applications were subsequently consolidated by order of Lee J made on 25 February 1992. The consolidated application sought an order quashing the decision of the Magistrate to issue the warrants and associated declaratory and injunctive relief against the present respondents, the policemen to whom the warrants had been issued. The application was heard by French J on 24 and 25 August 1992. In his judgment of 21 July 1995 his Honour summarised (at 3) the grounds upon which the consolidated application was brought as:-

"1.Failure on the part of the [Magistrate as] decision-maker to take into account relevant considerations.

The Court should intervene to restrain the execution of the warrants on the basis that the documents proposed to be seized are subject to the protection of public interest immunity.

Section 10 of the Crimes Act 1914 (Cwth) under which the warrants were issued should be read down on the basis that it does not authorise seizure of documents the subject of public interest immunity. Alternatively, s.10 of the Crimes Act and s.19 of the Fisheries Act 1905 (WA) should be read together on the basis that they are disparate statutes dealing with entirely different subject matter.

4.Section 10 of the Crimes Act is invalid to the extent of inconsistency with the provisions of s.19 of the Fisheries Act 1905 (WA) because it unduly interferes with the State's exercise of governmental functions."

(c)French J delivered judgment on 4 December 1992 ((1992-1993) 39 FCR 201) dismissing the application on the grounds that there had been no failure to take into account relevant considerations, that s 10 of the Crimes Act should not be read down on either of the bases submitted and that the section was not invalid through interference with the exercise of governmental functions by the State of Western Australia. His Honour also expressed the view that the case did not disclose convincing circumstances for the affording of public interest immunity.

(d)The present appellant and the Attorney-General for Western Australia, who had intervened in the hearing before French J, appealed to the Full Court of this Court. The appeal was allowed on the ground that s 10 of the Crimes Act did not bind the Crown in right of the State of Western Australia, with the consequence that the warrants were invalid ((1993) 41 FCR 301).

(e)An appeal against this decision was upheld by the High Court on 17 February 1995 ((1995) 127 ALR 159). It was held, by majority, that s 10 of the Crimes Act was binding upon the Crown in right of Western Australia and that, consequently, the warrants had been validly issued by the Magistrate. In this regard, the majority, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, expressed the view (at 164-165) that:-
"... it cannot have been intended by the legislature that a search warrant issued under s 10 of the Crimes Act should stop short of Crown premises with the result that criminal offences might go unpunished or, at the very least, that their investigation and prosecution might be made more difficult".

Their Honours also said (at 165):-
"Section 10, in arming the executive government with authority to investigate criminal offences by the exercise of powers of search and seizure, does not contemplate that it should be powerless where the premises or property in relation to which it seeks to exercise those powers are Crown premises or Crown property. That would be inconsistent with the main purpose of s.10 which, for that reason, sufficiently exhibits an intention to rebut the presumption that it does not bind the Crown".

(f)Their Honours, however, considered that the doctrine of public interest immunity could have a role to play in relation to the execution of the warrants. They said (at 165):-
"...where the public interest in maintaining the confidentiality of particular documents in the possession of government or a government agency ought to prevail over the public interest in the prosecution of crime, then those documents have in our view public interest immunity from search and seizure under s.10.

In Baker v. Campbell (1983) 153 CLR 52, this Court held by a majority that the doctrine of legal professional privilege is not confined to judicial and quasi-judicial proceedings and extends to the compulsory disclosure of communications in extrajudicial proceedings. In particular, it was held to extend to search and seizure under a warrant issued pursuant to s.10 of the Crimes Act. The majority referred to the principle that a basic common law doctrine is not to be abrogated except in the clearest of terms and held that s.10, being silent upon the matter, did not exclude the doctrine of legal professional privilege (See Norwich Pharmacal v. Customs & Excise Commissioners [1974] AC 133 at 206-207), although it has never been thought to be confined to judicial and quasi-judicial proceedings (See The Commonwealth of Australia v. John Fairfax & Sons Ltd. (1980) 147 CLR 39 at 52). In accordance with the approach adopted in Baker v. Campbell, it is open to the Crown to resist the seizure under a s.10 search warrant of documents to which public interest immunity attaches."

Their Honours also said (at 166):-
"Public interest immunity has a particular application in the case of information gleaned upon the basis of confidentiality. As Viscount Dilhorne said in Norwich Pharmacal v. Customs & Excise Commissioners [1974] AC at 189:

`I do not accept the proposition that all information given to a government department is to be treated as confidential and protected from disclosure, but I agree that information of a personal character obtained in the exercise of statutory powers, information of such a character that the giver of it would not expect it to be used for any purpose other than that for which it is given, or disclosed to any person not concerned with that purpose, is to be regarded as protected from disclosure, even though there is no statutory prohibition of its disclosure.'

And in Conway v. Rimmer [1968] AC 910 at 946, Lord Reid said:

`If the state insists on a man disclosing his private affairs for a particular purpose it requires a very strong case to justify that disclosure being used for other purposes.'

The principle does not appear to depend upon the encouragement of candour but rather upon the consideration that the public interest is best served by preserving the basis upon which the information was given. It may be necessary for the proper functioning of the public service to withhold documents where failure to do so would impair confidence in its assurances (See Sankey v. Whitlam (1978) 142 CLR 1 at 39). Confidential information of a business character required to be given by a statute which prohibits the disclosure of the information and protects it from production to a court would appear to present a particularly strong case for immunity. Nevertheless, even where the private right to confidentiality is of some magnitude and its preservation is in itself in the public interest, it must be weighed against the public interest in disclosure for the purposes of the investigation and prosecution of the offences in question (ibid. at 60-62). Ultimately, that issue may require judicial determination but, as we have said, if the warrant is executed in a reasonable manner, as it must be (Federal Commissioner of Taxation v. Citibank Ltd (1989) 85 ALR at 598-599, 618-619), there is no reason why that issue may not be resolved by a court."

(g)Their Honours allowed the appeal and set aside the order of the Full Court of this Court. Having done so they then said (at 167):-
"Since the judge at first instance rejected the submission that public interest immunity could have an application in relation to the execution of a warrant under s.10, we would remit the matter to the Federal Court to consider, in the light of these reasons, whether there is immunity in this case".

(h)The application, thus remitted, came before French J who said, in relation to the remitter (at 7):-
"I respectfully accept that, for the reasons expressed in the joint judgment, I am bound to proceed on the basis that public interest immunity is capable of being claimed in a case such as the present. The determination now required is whether or not public interest immunity applies to prevent the production of the documents the subject of the search warrants".

(i)I infer, from this passage, that his Honour considered his task to be that of determining the following claims made by the applicant in the consolidated application:-

"[A] declaration that information to which s.19 of the Fisheries Act of Western Australia applies is immune from being searched under the authority of the warrants.

An injunction permanently restraining the second respondents from executing the warrants."

(j)The question for his Honour's decision was, therefore, whether the doctrine of public interest immunity should, in the circumstances of the case, apply to prevent the execution of the warrants by the respondents, Jacobsen and Dibb, notwithstanding that they had been validly issued by the Magistrate. In deciding the question, his Honour had regard to the evidence which had been given at the first hearing before him, his findings, insofar as appropriate, in that hearing and also to additional evidence then introduced for the first time. The object of this evidence was to bring the factual situation up to date. On 2 July 1995, his Honour found that the claim for public interest immunity had not been made out, with the result that the application was dismissed. This appeal has been brought from that decision.

THE CASE BEFORE FRENCH J
It is convenient to set out, as did his Honour, the relevant statutory framework:-

Section 10 of the Crimes Act 1914 (Cth) provides:-

"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 18 of the Fisheries Act 1905 (WA) ("the Fisheries Act") provides (inter alia) for the furnishing of returns by persons engaged in the fishing industry. The relevant parts of the section are:-

"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;

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

.
.
.
(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.

(3)Any person required to furnish a return under this section shall furnish that return at such time, in respect of such period and to such person, as may be prescribed, and shall set out in the return such particulars as to the weight, quantity, value or price of any one or more varieties of fish or parts of fish or fish product or aquatic organism and as to the locality in which any fish or any one or more varieties or species of fish or aquatic organism were taken, as may be prescribed.

(4) Any person who neglects or fails to furnish a return in accordance with this section, or who furnishes any false information in any such return, commits an offence and is liable on conviction to a penalty of not less than $100 nor more than $750."

Section 19 of that Act provides for confidentiality of information provided by way of returns furnished under s.18 or otherwise obtained under the Act:-

"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."

It is clear that the main object of the execution of the warrants was the obtaining of the returns furnished by the individuals and organisations specified in the warrants. Those returns were entitled to the veil of secrecy provided by the Western Australian legislation but were, in accordance with the decision of the High Court, in the absence of a valid claim to public interest immunity, vulnerable to the s 10 search warrants.

The evidence before French J on behalf of the respondents Jacobsen and Dibb, consisted of the sworn information placed before the Magistrate for the issue of the search warrants. As his Honour observed in the first judgment (at 207) it explained "the basis upon which the second respondents sought to use the warrants for their investigative purposes". For this reason, as his Honour said, it was desirable to set it out in full. I consider it necessary to do the same. It reads as follows:-

"On the 12th day of February 1992, Terence Lester DIBB of Perth in the State of Western Australia, a member of the Australian Federal Police, hereinafter called "the informant", appears before me, a Justice of the Peace within the meaning of that expression in Section 10 of the Crimes Act 1914 of the Commonwealth of Australia and informs me on Oath:-

That he is a Detective Constable in the Australian Federal Police, currently attached to the Fraud and General Crime Branch, Perth, Western Australia. From enquiries made by him and on his behalf he verily believes the following.

In August 1991 the Australian Taxation Office (ATO) requested the involvement of the Australian Federal Police in an investigation into the under declaration of income by crayfishermen at and around Geraldton in the State of Western Australia. The crayfishing industry (also known as the rock lobster industry) has been the subject of close scrutiny by members of the ATO Audit Section since 1978. The audit team is currently led by Mr Terry THOMPSON. More recently Ms Sheila RAJAN and members of the ATO Prosecution Section have had carriage of the matter. The informant therefore relies primarily on information gathered under the provisions of the Income Tax Assessment Act 1936 and Taxation Administration Act 1953 by these officers of the ATO and their team members.

The Rock Lobster fishing season operates each year between 15th November and the 30th June of the following year. It is an industry characterised by substantial financial returns to the crayfishing boat operators, including significant remuneration by way of cash in hand. It is estimated by the ATO that in the region of 95% of the rock lobster harvest by the cray fishing boat operators is sold to processing companies based in Geraldton and Perth. The remainder is sold offshore and to local entities as private sale. These estimates by the ATO are based upon information contained within annual reports by the State Department of Fisheries and data provided by processing companies.

Crays are taken by professional crayfishermen under licence from the Department of Fisheries. In this instance the relevant area extends some 370 kilometres off the West Australian coast between latitude 21 44 S and 30 S; such area being designated as Zones A & B pursuant to the provisions of Section 12A of the Fisheries Act 1905 (WA). The taking of crayfish by crayfishermen is regulated by the provisions of the Fisheries Act (WA) 1905.

I am informed by the ATO and verily believe the divers crayfishermen have failed to declare the true amount of cash received from the sale of their catch to processing companies in their respective income tax returns lodged with the Commissioner of Taxation. This is assessable income within the terms of the Income Tax Assessment Act 1936. It is believed that these processors are knowingly concerned in this defrauding of 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.

I am advised by the ATO that their records disclose cash payments made by processors collectively for the 1987 financial year totalled $12,467,419.00. The figure for the 1988 is $18,729,663.00. An analysis of figures by the ATO obtained from the industry shows that for the financial years 1987, 88, 89 crays to the approximate value of $503,632,853.00 were purchased by processors from crayfishermen. Declared income by crayfishermen to the ATO for this period totalled $458,525,199.00. The discrepancy of $45,107,654.00 is reasonably suspected as being income undeclared by divers crayfishermen.

Processors identified as coming within the ambit of this investigation by the ATO due to their significant purchases of crayfish over the period of the financial years 1987, 1988 and 1989 are:

[names given but not reproduced here]

There are four basic modes of payment to crayfishermen for receipt of crays by processors. Briefly they may be classified as follows:

a. POOL: Prior agreement between the parties results in a weekly payment for a percentage of the catch being made. The balance is paid during the season following sale by the processors.

b. CASH ON LEDGER: Weekly payments to crayfishermen based on the prevailing price at the time the catch is weighed.

c. BEACH POOL PRICE: Crayfishermen accept the prevailing rate at the time their catch is weighed. They elect to defer a percentage of payment to a later date, usually after the end of the financial year.

In each of the above cases payment is usually made by the processing companies directly crediting the crayfisherman's bank account. The ATO do not experience difficulty in isolating which individual crayfisherman was paid what amount by each processor.

d. CASH CASH: This is a cash mode of payment. It is effected by means of a docket issued by the processor's tallyman and subsequently produced at the office of the processing company by the crayfishermen. It is marked only to CASH and records the weight of the bagged crays accepted by the tallyman. This document is transferable and redeemable on demand at the processing company office. On the face of the document there is no record of which crayfishermen received a specific cash payment. Further there appear to be no other records kept by the processors which identify the totality of cash payment made to individual crayfishermen.

The mode of payment described in paragraph 8.d effectively prevents the ATO from accurately auditing the income tax returns of individual crayfishermen. The facility for substantial under declaration of earnings by the crayfishermen is thereby created. This is because monies paid by the various processing companies for bagged crays to crayfishermen (which constitutes assessable income of crayfishermen) is not identifiable as a payment to any specific crayfisherman. I am informed by members of the ATO audit team that the practice of non identification of recipient crayfishermen on the cash dockets was instigated and continued at the request of the various crayfishermen.

10.Processors are required under the provision of Section 13(1)(b) Fisheries Act (WA) 1905 to make certain legible records. Specifically when purchasing fish, to document quantity and species, date of purchase and the name and address of the vendor. Furthermore processors are obliged by virtue of Section 18(2)(ca) of that Act to furnish a return to the Department of Fisheries containing this information.

11.Individual crayfishermen are obliged by virtue of Sections 18(2)(a) and 18(3) of the Fisheries Act (WA) 1905 to furnish a return to the Department of Fisheries providing particulars of each catch of crayfish.

12.A part of the crayfishing industry is concerned with conducting operations within the area of the Abrolhos Islands. Various systems are utilised for processors to receive each catch from the crayfishermen. The mode of receival in this instance is via carrier boat. The crays are collected from individual fishermen operating on the Abrolhos Islands. This period falls between 15 March and 30 June each year. In the operation of his business the carrier boat skipper creates manifests identifying individuals and the number of bags he transports to the mainland for them.

The crayfish carrier boats, operators and respective accountants are listed as:

[names given but not reproduced here]

13.Those persons providing carriage of fish are obliged under the Fisheries Act 1905 Section 18(2)(f) to furnish a return to that authority.

14.I am informed and verily believe that all the information required under the provisions of the Fisheries Act (WA) 1905 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 @ 108 St. George's Terrace, Perth and the W.A. 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.

AND further informs me on oath that by reason of the above preceding paragraphs there are reasonable grounds for suspecting that there are at the premises, namely:

Department of Fisheries, 108 Adelaide Terrace, Perth,

and WA Marine Research Laboratories, Reserve Number 29967, Lot Number 1, West Coast Drive, Watermans

in the State of Western Australia, returns to the Department of Fisheries and records thereof relating to the catching, carriage or purchase of crayfish, which afford reasonable grounds for believing that the same will afford evidence as to the commission of offences against the following laws of the Commonwealth:

[six offences against the Commonwealth under the Crimes Act and Taxation Administration Act 1953 specified].

WHEREFORE the informant prays that a search warrant may be granted to search the premises named above and to seize the said things more fully described above as to which will afford evidence as to the commission of the said offences."

On behalf of the present appellant considerable evidence was called in relation to the problems which would arise in the proper administration of the relevant Western Australian fisheries should the warrants be executed. It was contended that the execution of the warrants would seriously endanger the cooperation that existed between the Department and the fishing industry with respect to research and management in the industry. This cooperation was to a very large extent based upon the statutory guarantee of confidentiality in respect of the information supplied. In the first judgment his Honour made the following findings in this regard (at 211-212):-

"Certain facts were not in dispute and others were the subject of evidence at the hearing in relation to those matters. It was not in dispute that the Department of Fisheries in Western Australia manages commercial fisheries in the waters off the State which have an annual production value of $350 million at the point of sale. The Department is constantly undertaking fisheries research at a current annual cost of $3 million and has conducted research into the rock lobster fisheries since the 1960's. The object of its research is to ensure that fisheries are managed on a sustainable basis. This involves assessing and monitoring the quantity and geographical distribution of stocks. Analysis of stocks in this respect is 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. The Director of Research of the Department, James Penn, explained that catch and effort returns provided by fishermen record their catch, the number of pots pulled per day, fishing gear information such as pot types and information in relation to the boat's skipper such as his years of experience. The catch figures provided by fishermen are often estimated to the nearest 100 kilograms which is all that is required for stock assessment purposes. The catch and effort statistical system into which this information is fed is known as CAESS. In addition to that information, the Department obtains landings data from the processor plants. According to Dr. Penn, and I accept his evidence, the level of catch reported to the Department and stored in the CAESS system equates closely to the level of catch reported for individual vessels in the processing plant returns. The discrepancy is around 1%. He also said, and I accept, that in addition to its catch and effort and processor plant returns, the Department collects a variety of data which is provided voluntarily by fishermen. This includes biological information collected by research staff such as the numbers of spawning female lobsters and undersize lobsters caught and the information on boat type used.

According to Dr. Penn, the guarantee of confidentiality attaching to the information provided by fishermen, particularly that voluntarily provided, is vital in ensuring the continuing co-operation of the industry. This confidentiality is necessary because of the industry's competitive nature. He pointed out by way of example that the various commercial negotiations which can take place between the skipper, owner and/or leaseholder and/or financier of a vessel, the vessel operator and purchasing processor factories can all be affected by the respective understanding each party has of the possible catch. Vessel operators are in strong competition with each other and it is, he said, critical that other operators do not know the quantity or location of an operator's catch. The Department does not collect data on the price paid for any given catch. The evidence of Dr. Penn in this respect was generally supported by the Executive Director of Fisheries, Mr Peter Rogers. He asserted that execution of the warrants would contradict all the understandings of the fishing industry about the confidentiality of the information which they have given to the Department. The Department, he said, would be unable in the future to make any assumption about the reliability of information provided by the fishing industry or about the co-operation of the industry. The research and management systems of the Department which enable it to maintain the present $350 million production on a sustainable basis would be fundamentally impaired. It is, he said, contrary to the public interest for such impairment to be allowed to occur by execution of the warrants."

His Honour also had before him the evidence of Mr Caputi, a senior research scientist and statistician with the Western Australian Department of Fisheries. It is clear that he accepted Mr Caputi's evidence which he summarised in the first judgment (at 213) as follows:-

"... he ... had conducted research which demonstrated that generally the levels of catch reported to the Fisheries Department very closely equated to the level of catch recorded for individual vessels in the processing plant returns. He referred also to research conducted by the Department in conjunction with the CSIRO division of Fisheries and Oceanography. The research which evidently began in the 1960's and early 1970's included fishermens' Catch and Fishing Effort Returns, the monitoring of the larval and juvenile stages of the Western rock lobster, spawning stock and biological features including growth and natural mortality rates. The data, he said, could be used to predict catches up to three and four years in advance and to make management decisions. The importance of confidentiality of fishermens' returns to the management techniques referred to was summarised in an article he had published in the Fishing Industry News Service (FINS) Vol. 21 No. 3 1988. There was no cross-examination on his evidence."

His Honour made the following observations in relation to this evidence (at 213-214):-

"On the basis of the oral and affidavit testimony and having due regard to the experience and knowledge of these three witnesses about the industry, I accept that information provided by fishermen, both voluntarily and under statutory compulsion, is of great importance to the proper management of a sustainable fishery. I also accept that it is a highly competitive industry with limited stocks and that it is of great importance to the acquisition of that information that those providing it can be confident that it will not be used in a way that is detrimental to their legitimate commercial interests. To that extent it can be accepted that there is a public interest in maintaining the confidentiality of the information provided. That public interest is supported in this case by s.19 of the Fisheries Act 1905. 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."

On behalf of the present appellant, submissions were also made to the effect that information obtained through the execution of the warrants would add little, if anything, to information which would otherwise be available to the taxation authorities from other sources. French J considered this aspect of the case in the first judgment in the following passage (at 214):-

"Another aspect of the applicant's factual case ... was that the information obtained from the execution of the warrants would not reveal anything that was not already available to the Federal Police from purchasing processor records and would not disclose revenue generated from catches. I accept that Dr. Caputi's research indicated that there was a low rate of discrepancy between information provided on s.18 returns and information obtained from the processors. I am not prepared to infer however that comparisons made between such returns and other information covered by the warrant on the one hand and information otherwise available to the Police from processors, would not be of assistance in the detection of such offences as are referred to in the warrants. In cross-examination Dr. Penn accepted that a correlation might be able to be made between weight of crayfish taken and sale price by a combination of available data from processors, the Department and the industry, although he thought it would be with a low degree of accuracy. He 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, by considering available information, to get an estimate of the price paid for those deliveries."

As already indicated, after considering and rejecting the submission that the doctrine of public interest immunity required a reading down of the ambit of operation of s 10 of the Crimes Act, French J made the observation (at 220) that "having regard to the comments I made earlier on the question of public interest, I would not consider that any convincing case for such an immunity had been disclosed". It is clear that this statement has not been regarded as a concluded finding of fact with the result that when the matter came back before his Honour upon the remitter, further evidence was given on the question.

That evidence consisted of a further affidavit from Dr Penn, the Director of Research at the Department of Fisheries and one from Mr Rogers, the present appellant and the Executive Director of the Department. His Honour (at 8) found, correctly in my view, that Dr Penn's affidavit established the following propositions:-

"1.The rock lobster fishery is considerably more fragile today than it was in 1992. Levels of juvenile lobsters settling along the coast have declined for four consecutive years which is unprecedented in the history of the fishery.

The breeding stock is now estimated to be at 15-20% of the original unfished level which is too low. The Department's view is that a safe level of breeding stock is about 25% of the original unfished level and the international view supports this.

Because of the concern as to the low of breeding stocks, new restrictions on the taking of rock lobster were implemented in 1993/94.

There is no longer any discrepancy between the level of catch reported to the Department and the level of catch reported in the processing plant returns. The records equate within 1%.

The Department now needs to monitor the level of breeding stock in the fishery more precisely and is undertaking an expanded breeding stock research program to enhance the value of the industry provided data base.

The accuracy of returns and the information provided voluntarily by fishermen remain crucial to the management of the fishery under the new system, as does co-operation between fishermen and the Department.

7.The management arrangements now in place in the fishery involve much closer monitoring of catches of some classes of lobster than has previously been undertaken. This level of monitoring is necessary because reducing the catch of those lobsters is the cornerstone of the Department's strategy to build up the breeding stock."

Dr Penn's evidence, therefore, enhanced and emphasised the Department's reliance upon the provision of accurate information from fishermen in the rock lobster industry for the proper control, management, and maintenance of the fishery.

Mr Rogers gave evidence to the effect that there had been a significant increase in the value of production of commercial fisheries managed by the Department since 1992. The rock lobster fishery had an annual production value of $295 million, whilst expenditure on research had increased to a figure of about $5 million per annum.

On the basis of this factual material, his Honour entered upon an exercise which he described as "The Balancing of Interests". He identified the relevant interests (at 9) as follows:-

"... the interest served by the seizure of the documents relates to the investigation and possible prosecution of offences which may have been committed against the law of the Commonwealth. The interest said to be served by non-production is the proper functioning of the Fisheries Department meeting the need to preserve the fishery by ensuring that compulsory and voluntary information important to its management on a sustainable basis is provided and that the information provided is accurate."

It has not been suggested in argument that this was an incorrect analysis of the competing interests. I agree, with respect, that it is a correct statement of the respective positions.

His Honour then set out the appellant's arguments for "an overwhelming public interest in protecting the documents from seizure". These did not differ in any significant respect from the arguments previously put and which have been recorded earlier in these reasons. His Honour then made findings (at 11) which, insofar as they are the subject of attack in the appeal, I find necessary to set out in full, as follows:-

"In my respectful opinion nothing has been put before the Court of a factual character to indicate that circumstances relevant to the determination of public interest immunity have altered significantly since I gave judgment in December 1992. I rely upon the facts then found and the undisputed material which has been put before me on the hearing of the matter remitted by the High Court. In particular, I accept that information provided by fishermen, both voluntarily and under statutory compulsion, is of great importance to the proper management of a sustainable fishery. I accept that it is a highly competitive industry with limited stocks and that it is of great importance to the acquisition of that information that those providing it can be confident that it will not be used in a way that is detrimental to their legitimate commercial interests. I accept also that there is a low rate of discrepancy between information provided on returns lodged with the Fisheries Department and information obtained from processors. In the judgment given in February 1992, I was not prepared to infer that comparisons made between s.18 returns and other information covered by the search warrants on the one hand, and information otherwise available to the Police from processors would not be of assistance in the detection of such offences as are referred to in the warrants. It was implicit in that finding and, if not, I now so find, that comparisons between the documents sought under the search warrants and information otherwise available from processors may be of assistance in the detection of such offences as are referred to in the warrants. In so saying I note my finding that Dr. Penn accepted at the primary trial that a correlation might be able to be made between the weight of crayfish taken and sale price by a combination of available data from processors, Department and industry, although with a low degree of accuracy."

His Honour was not prepared to draw the inference, contended for by the appellant, that a substantial number of fishermen would cease to cooperate 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. He also expressed the view that, insofar as there would now be an awareness in the industry that a search warrant could be executed against the State Fisheries Department, the apprehended impairment of the information gathering process would "already substantially have occurred". His Honour also pointed out that the documents seized under the warrant would still be subject to confidentiality in the hands of the taxation authorities and that the question of public interest immunity could be raised again should such documents be sought to be used publicly in court proceedings. In particular, the question of commercial confidentiality in relation to the information could then be raised. He also pointed out that the very provision of the information sought by the warrants could operate in favour of the fishermen who had acted honestly in relation to their income tax returns, but who were under suspicion due to the reference in the information filed in support of the application for the warrants, to their apparent failure to disclose cash receipts.

French J concluded, that the public interest in favour of disclosure to the taxation authorities prevailed over the public interest in maintaining the confidentiality of that information from the taxation authorities.

THE CASE ON APPEAL
On appeal, it was argued for the appellant that French J had made errors in the weight to be attributed to various factors to be considered in the balancing exercise. Although it must be accepted that the appeal does not consist of a review of a discretionary judgment, but is a re-hearing of the remitted question in accordance with ordinary principles, it is, nevertheless, convenient to deal with the matter by a consideration of errors submitted to have been made by his Honour. If these suggested errors are not made out, then, it is not contended that this Court should do otherwise than accept and endorse his Honour's reasoning and conclusions.

The first attack that was made upon his Honour's approach to the balancing of the relevant interests was that he had failed adequately to consider the degree of importance and utility of the information sought to the investigation. It was submitted that, merely to find that the information in the fishermen's returns might be of some assistance to the inquiries of the taxation authorities, did not confer upon it a sufficient utility to outweigh the harm that the disclosure could cause to the proper administration of the fishery.

It must be borne in mind that the question of the existence or otherwise of public interest immunity in this case arises in unusual circumstances. The immunity is normally claimed in the course of curial proceedings in response to an application for discovery of documents or for their production on subpoena. Such a claim is made in circumstances where the documents themselves are identified as being in the possession of parties to the litigation or, if in the possession of strangers to the litigation, are said to be relevant to issues which have been clearly joined between the parties. In such circumstances, the documents are often examined by the Court in order to determine whether their relevance and importance to the litigation are such that they should be admitted into evidence, notwithstanding a claim that the public interest may be adversely affected by their admission. Here, the question does not arise in the course of adversarial litigation being conducted before the Court. It arises in the course of an investigation being conducted by the executive. It may be noted that in the dissenting judgments in the High Court (Brennan J at 171; McHugh J at 176) the view was expressed that a claim for public interest immunity simply could not arise in relation to investigative procedures conducted pursuant to s 10 of the Crimes Act. Such claims, however, might properly be made and considered in the course of curial proceedings subsequently brought as a result of those investigations. The result of such curial proceedings might be that material obtained as a result of the coercive processes allowed by s 10 will not be allowed into evidence in the prosecution of a person charged as a result of that investigation. The Court might hold that the material, though relevant, is of insignificant value to the prosecution in comparison with the harm that might be occasioned to the legitimate commercial interests of the person affected by its production, or to matters of public interest.

The decision of the majority, however, necessarily requires that the question of public interest immunity be considered in relation to a purely investigative procedure, such as is contemplated in the present case. It follows that the background to the question may be significantly different from the background existing when curial proceedings are on foot or under way. When the intervention of the Court is sought in proceedings which are purely investigatory, the Court must, in my view, necessarily proceed in a cautiously speculative manner. It is unlikely, as in the present case, to have placed before it the documents sought to be protected from seizure. It may, again as in the present case, be provided only with descriptions of those documents together with assertions of their significance or relative lack of it in relation to the investigation. Conversely, the investigator may be reluctant to indicate with any particularity the information already in his possession which could provide a strong indication of the significance to the investigation of the material which he seeks. Again his arguments may lack factual specificity.

It has been necessary both for French J and this Court to approach the resolution of the presence or absence of public interest immunity on the basis of the limited material adduced by the parties. On the one hand, the respondents rely upon the information filed in support of the issue of the warrants. This document has been set out in full above. Whilst it stops short of providing any detailed factual material, it nevertheless lays out in an orderly way information as to the nature of the investigation and the importance of examining the types of documents sought by the respondents under the warrants. On the other hand, the appellant has provided evidence as to the general nature of the information and its suggested lack of usefulness to the inquiry. He has not produced the documents themselves, although it should be remembered that they are the subject of an obligation of confidentiality imposed by statute. He has provided a description of the material in general terms and made submissions as to its apparent significance, having regard to its correlation with information in the hands of the
processors, to which the respondents have access. French J has referred to this material in the passages cited above.

It was submitted on behalf of the appellant that his Honour failed properly to consider the importance of the information sought in the warrants in relation to the detection of any of the alleged offences. Had he done so, it was submitted, he would have found that the degree of usefulness of the information was not such as to warrant its disclosure in light of the protection of confidentiality accorded to it by the State statute. It was submitted that the following considerations should have persuaded his Honour that disclosure through seizure was inappropriate and that the same considerations should require that this Court uphold the claim for immunity:-
(a)The respondents already had essentially the same information as was sought by the warrants. This information was to be found in the material obtained from the processors.
(b)The information in the fishermen's returns did not deal with the question of cash payments which were the subject of the investigation. The evidence established that information as to cash prices obtained for crayfish sold by the fishermen to the processors was not included in the returns furnished to the Department.
(c)The returns only provided information as to the total weight in kilograms of crayfish sold. No information as to price was provided.
(d)The information in the returns would not be admissible in any prosecutions for any offences. In such prosecutions s 19 of the Fisheries Act 1905 would require their exclusion. The section would be applicable by virtue of s 79 of the Judiciary Act 1903 (Cth).
(e)There was no evidence that the investigation would not go ahead and prosecutions be commenced if the information were not provided.

It was submitted that matters (d) and (e) were not considered by his Honour and that this failure significantly flawed his decision. His Honour's reasons do not indicate that he directly considered these matters, although if they were raised in argument, he would undoubtedly have done so. In any event, I am not persuaded that they raise considerations which should result in the balancing of public interest in favour of the appellant. It must be remembered that the case is concerned with an investigation. It is not at all uncommon that material may assist in an investigation even though that material may not, of itself, be admissible in evidence in any curial proceedings resulting from the investigation. Nor is it fundamental to the determination of the question of which public interest should prevail in the present case, that the information sought in the warrant should be critical to the investigation or to any subsequent prosecution. It is, in my view, quite sufficient that it be of apparent use in the furtherance of the investigation.

Nor do I consider that the matters raised in (a) to (c) require a conclusion that his Honour's approach was flawed or that this Court should reach a different finding. These matters were all taken into account by his Honour, as appears from the passages from his reasons which have been set out above. This is not a case such as Alister v The Queen (1983-1984) 154 CLR 404, where it can be said that the respondents have failed to indicate what they can hope to gain in their investigation from examination of the documents sought. The use to which they wish to put them is, in my opinion, quite satisfactorily explained in the information in support of the warrants. The returns showed the weight of crayfish taken by the individual fishermen on particular days together with other relevant information. Dr Penn, in oral evidence at the first trial, agreed that a correlation might be able to be made between the weight of the crayfish taken and sale prices recorded in the processors documents. Neither the respondents nor his Honour were bound to accept Dr Penn's opinion that the correlation might have "a low degree of accuracy". Clearly the investigators would be in a better position than Dr Penn or the Court to determine this question. I see no reason for departing from his Honour's finding (at 9) that "comparisons between the documents sought under the search warrants and information otherwise available from processors may be of assistance in the detection of such offences as are referred to in the warrants".

It is plain, in my view, on the evidence before his Honour and this Court, that access to the returns supplied by the individual fishermen may well be of assistance in determining whether such fishermen have received cash payments from the processors which have not been disclosed in their income tax returns. The records of the processors do not enable the cash payments made by them to be allocated to individual fishermen. This is a result of the method of making cash payments established by the processors at the instigation of the fishermen themselves. A comparison between the amount of the crayfish catch shown in the returns to the Department by individual fishermen on individual days, with the purchase records of the processors, is an obvious line of inquiry to be followed by the respondents. This line of inquiry cannot be pursued unless and until the respondents are able to execute the warrants. I am satisfied that the information sought has considerable potential to advance the investigation. The appellant's first argument therefore fails.

The appellant's next submission was that French J failed to give adequate weight to the risk of serious impairment to the proper administration of the fishery resulting from the seizure of the fishermen's returns pursuant to the warrants. The appellant took issue with the following finding made by his Honour (at 12):-

"I accept that there is a high public interest in maintaining the confidentiality of the information provided. I am not, however, prepared to draw the inference that a substantial number of fishermen will cease to co-operate with the Department or to comply with s.18 of the Fisheries Act 1905 if they think that the information so provided may become available to the Australian Taxation Office."

Counsel for the appellant submitted that this Court, on a consideration of the evidence, should reverse this finding. Certain cases such as Alfred Crompton Amusement Machines Ltd v Customs and Excise Commission (No. 2) [1974] AC 405, were cited to this Court as illustrations of occasions when Courts of high authority have found that public interest immunity or Crown privilege could be applied to prevent the disclosure of information provided in confidence, on the basis that such disclosure would impair the efficient administration of a statute under which the information was supplied. I do not find decisions given on the facts of other cases to be of any real assistance in the determination of what is essentially a factual question in the present case. The question this Court must determine is whether or not to draw the inference that his Honour drew in the passage cited.

It must be remembered that the warrants seek the seizure of documents relating to the years of income from 1 July 1986 to 30 June 1990. It is immunity from seizure of documents relating to this period that is sought by the appellant. The immunity is claimed on the basis that if seizure is permitted, a substantial number of fishermen will cease to cooperate with the Department or to comply with s 18 of the Fisheries Act. Fishermen will know that the Department cannot guarantee the confidentiality of their records vis‑a‑vis the Australian Taxation Office and will consequently provide unreliable information to the great detriment of the administration of the fishery. There could be no suggestion that there would be any weakening of confidentiality in any other respect. Furthermore, the records would be subject to confidentiality in the hands of the taxation authorities through the operation of s 16 of the Income Tax Assessment Act 1936, s 3C of the Taxation Administration Act 1953, s 60A of the Australian Federal Police Act 1979 and reg 35 of the Public Service Regulations. The question is, therefore, whether this limited opening in the wall of confidentiality would be such as to entail the asserted catastrophic results to the fishery and, because of that, to the public interest.

The evidence in support of this contention came from the witnesses referred to above. It was to the effect that they were strongly apprehensive that if the fishermen could no longer rely upon the confidentiality of the material in the returns, they would no longer supply accurate material. Presumably, they meant that the fishermen would understate their catches in order to make them consistent with an understatement of income in their tax returns. If this regrettable fact occurred, then the s 18 returns could no longer be relied upon for the important purposes of the Fisheries Act.

Whilst there is no reason for doubting the genuineness of these concerns, it is necessary for this Court, as it was for French J, to consider whether the evidence supports a finding that falsification would, in the future, be likely to occur to any significant degree.

It is clear, of course, that exposure of the fishermen's confidential returns to the Department to search and seizure under a s 10 warrant, could not rationally be seen as a threat to commercial confidentiality. The information in the returns could not be used except for the purposes of the inquiry which had sourced the issue of the warrants. There was no serious possibility of the confidential information being made available to business competitors. Accordingly, only those fishermen who might have cause to fear that exposure of their s 18 returns to scrutiny by the taxation authorities might reveal tax evasion, would be likely to understate or otherwise distort the true picture of their lobster catches in those returns. Moreover, obviously only future returns would be distorted. Nothing could be done about past returns.

It is not to be assumed that a significantly large proportion of the fishermen involved would, in the years under investigation, have committed serious tax crime. Nor is it to be assumed that the Western Australian legislature in 1979, when enacting s 19 of the Fisheries Act 1905, would have had
the intention of shielding large scale taxation fraud from investigation by Commonwealth authorities.

Accordingly, the question to be answered is a quite narrow one. If these warrants are executed, will a significant number of fishermen in the future understate their catches in their s 18 returns with resulting impairment to the lobster fishery? The question must be approached, of course, in the context that such an understatement would be a breach of s 18 and that serious breaches could result in the cancellation of a fisherman's licence and the consequent loss of his livelihood. On the assumption that such fishermen had previously provided accurate s 18 returns there would necessarily, in my view, be a noticeable alteration in the size of the catch reported in the subsequent understated returns. This should inevitably provoke inquiry on the part of the Fisheries Department which could well lead to the detection of breaches of s 18. Any fisherman, however strong his desire to avoid the payment of income tax, would be extremely reluctant to run the risk of cancellation of his fishing licence. Moreover, it cannot be reasonably assumed, in my view, that any significant number of fishermen would be so selfish or short sighted as to imperil the maintenance of the fishery which is the very basis of their continuance in business. It should be well known that wide scale understatement of catch in s 18 returns would be destructive of the Department's goal of preservation of the fishery.

I am in total agreement with French J in not being prepared to draw the inference contended for by the appellant. Accordingly, this argument also fails.

The appellant's final contention was that French J had erred in finding that any damage which could be occasioned to the accuracy of the Department's information gathering would "already substantially have occurred". His Honour's finding in this regard forms part of his reasoning that execution of the warrants would be unlikely to cause the harm apprehended by the appellant. His Honour's finding and the reasoning behind it was expressed as follows (at page 13):-

"Much of the argument put by the State centred upon the damage done to the process of acquiring information about fish stocks from fishermen if the confidentiality of that information were seen to be compromised by the execution of a search warrant. It must, however, be accepted that the industry will now be aware that a search warrant can be executed against the State Fisheries Department and that the question of production in light of a claim for public interest immunity is a matter for judicial evaluation. To that extent, in my opinion, if there is damage of the kind hypothesised by the State, that damage will already substantially have occurred."

As I understand the appellant's attack on this aspect of his Honour's judgment, it is to the effect that the finding cannot be supported. I am unable to agree.

To the extent that some of the fishermen may, in the past, have made illegitimate use of the shield of confidentiality provided by s 19, to evade payment of income tax, then, to those wrongdoers, it will now be apparent that the section provides no absolute guarantee of secrecy. It is vulnerable to a warrant under s 10 of the Crimes Act unless it can be demonstrated to the Court that, in the circumstances of the particular warrant, the public interest in maintaining the assurance of confidentiality outweighs the public interest in the protection of the revenue and the detection of crimes against it. To the extent that, in light of this significant weakening in the wall of secrecy, fishermen bent on wrongdoing may have adopted the expedient of understating their catches in their s 18 returns to conform with the understatement of income in their income tax returns, his Honour has expressed the opinion that this damage would already have occurred.

I am satisfied that the opinion is well founded. It is clear from the evidence that in the 1988-1989 season there was essentially no discrepancy between the fishermen's catch returns and the records of the processors, whilst in th e 1989-1990 and 1990-1991 season the discrepancy was less than one per cent. The execution of these warrants in relation to the earlier periods is unlikely to lead to future understatement of lobster catches in s 18 returns, especially because, as already stated, this could lead to detection and the imposition of severe penalties under the Fisheries Act itself.

I find myself in complete agreement with his Honour's conclusion in this regard. This argument also fails.

In the result, an examination of his Honour's reasons and a consideration of the countervailing submissions of the appellant leads me to the conclusion that his Honour's approach and resulting decision were correct and should be upheld by this Court. The public interest in furthering the detection and punishment of serious crime against the revenue laws through the execution of these warrants outweighs, in my opinion, the public interest in maintaining the confidentiality of that material from the legitimate scrutiny of the Australian Taxation Office.

In my view, this appeal should be dismissed.

The High Court set aside the orders of the Full Court of this Court made on 16 July 1993. The orders set aside included an order that "the second respondents" pay the appellant's costs of the appeal to the Full Court limited to the first day of the hearing. (The reference to the "second respondents" was a reference to the present respondents, that is, the two officers of the Australian Federal Police who were given authority by the warrants, the first respondent having been the magistrate who issued the warrants.) Accordingly, no order now exists with respect to the costs of the earlier appeal to the Full Court.

This matter was raised on the hearing before us. The parties were agreed that outstanding issues as to costs should be resolved by this Full Court. Directions were made for the making of any submissions on costs to be made in writing. Helpfully, the parties have agreed on the forms of costs orders to be made according to whether the appeal should be allowed or dismissed and have supplied the forms of those orders.

Since the appeal is to be dismissed, the costs orders should be that:

The appellant pay the respondents' costs of this appeal.
The appellant pay the respondents' costs of:

The original application being WAG Nos 19 and 20 of 1992;

(ii)The first appeal being WAG No 203 of 1992;
(iii)The remitted application being WAG No 28 of 1995.

I certify that this and the preceding forty (40) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

Associate:

Date: 16 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
WESTERN AUSTRALIA DISTRICT REGISTRY   ) No WAG 85 of 1995
  )
GENERAL DIVISION  )

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
(ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA)

BETWEEN:PETER ROGERS

Appellant

AND:JOHANNES JACOBSEN AND TERENCE LESTER DIBB

Respondents

CORAM:    FOSTER, HILL & LINDGREN JJ
PLACE:    SYDNEY (Heard in Perth)
DATED:    16 November 1995

REASONS FOR JUDGMENT

HILL J:

I have had the advantage of reading in draft the reasons of Foster J and agree with those reasons and the orders which his Honour proposes. I have also have advantage of reading in draft the reasons of Lindgren J and agree with the comments which his Honour has made. I would wish only to make some comments on the procedure adopted by the applicants.

As Foster J makes clear, the applicants sought to rely both upon the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR ACT") and s39B of the Judiciary Act 1903 (Cth). The claim made in reliance on the ADJR Act sought judicial review of the decision of the Magistrate to issue the warrants. The claim made under the Judiciary Act was for
injunctive relief against those policemen to whom the warrant was addressed.

There is a real question whether, in a case seeking to impugn the validity of a warrant, it is possible to raise an issue of public interest immunity. Judicial review of the decision of a magistrate to issue a warrant, if based upon the ADJR Act, must depend upon the applicant making out one of the grounds contained in s5(1) of that Act. Ordinarily the Court would be confined to considering whether the warrant on its face was valid (cf George v Rockett (1990) 170 CLR 104), although a warrant could be set aside where the decision to issue the warrant took into account irrelevant considerations or failed to take into account relevant considerations, or was so unreasonable in the administrative law sense that no reasonable decision-maker could have made it.

There would be no difference if the claim were brought under s39 of the Judiciary Act for an injunction restraining the execution of the warrant on the basis that the decision to issue the warrant was bad. Section 39B, as I sought to explain in New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (unreported, 30 August 1995), is concerned with adjectival rather than substantive law. For an injunction to be granted against an officer of the Commonwealth, reliant upon the jurisdiction conferred upon the Court by s39B, it would be necessary to show some ground for relief in substantive law and in a case such as the present by reference to administrative law. The ADJR Act does little more than codify existing administrative law principles, providing an alternative statutory remedy.

There is an analogy with the class of case where a warrant is issued in circumstances where some of the documents to be seized may be expected to be the subject of legal professional privilege. The warrant in Arno v Forsyth (1986) 9 FCR 576 was set aside, not because it might have been expected that some of the documents falling within the description of the documents to be seized were the subject of legal professional privilege, but because the warrant on its face was invalid. In the course of the various judgments delivered in that case divergent views were expressed as to the significance of legal professional privilege where the claim sought to be made out went to the issue of the warrant. Fox J was of the view that the question of privilege was a matter to be dealt with in other proceedings. His Honour said (at 580):

" The question whether there is privilege, and its extent, falls to be dealt with when it is sought to execute the warrant. Before a justice could decide a question of legal professional privilege there would be the hopeless matter of seeing the documents to which it relates, how, and for what purpose, they came into existence and between whom the relevant confidences lay.

If documents the subject of privilege are examined or removed, those doing so will be liable to an action at law (in some cases, possibly criminal proceedings) ...".

Jackson J left open the question whether a search warrant might legally be issued if the documents referred to in it were the subject of legal professional privilege. His Honour said (at 597):

"Assuming, however, that the existence of legal professional privilege in respect of a document should be treated as meaning that a search warrant may not lawfully be granted in respect of such a document, I do not think that the issue whether a warrant has lawfully been granted in respect of such a document is to be determined simply by the fact that the description of the document in the search warrant is such that it would normally indicate a document to which legal professional privilege would attach.

It seems to me that in such circumstances the question whether privilege attaches is one to be determined by matters dehors the warrant itself and I note that in Brewer v Castles (No 3) (1984) 52 ALR 583 when Beaumont J struck out of a search warrant a reference to `opinions of counsel' as being beyond power, he did so only after referring (at 583) to the fact that there was no suggestion in the evidence that the documents had lost the status of being the subject of legal professional privilege."

Lockhart J, on the other hand, was of the view that s10 did not authorise a search of documents which were the subject of privilege. His Honour said (at 587-8):

"The proposition that the warrant should issue without any consideration being given by the justice of the peace to the question of professional privilege and that the privilege question should only be dealt with later by litigation or otherwise is untenable."

The matter arose in a slightly different context in Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403. There the attack was upon a decision to seek access to premises occupied by a merchant bank pursuant to s263 of the Income Tax Assessment Act 1936 (Cth). The decision was set aside largely upon the basis that inadequate attention had been given to providing the bank the opportunity to claim privilege. The attack was also as to the manner in which access was sought, where the question raised was easier to determine. The case may support the view that a decision to issue a warrant to search for documents which on the face of the warrant could be seen to be the subject of legal privilege would be set aside. It would certainly support the proposition that failure by a magistrate to take into account the fact that documents the subject of the search were the subject of privilege would constitute failure to take into account a relevant matter vitiating the decision to issue the warrant. The case might also support the proposition that a decision to issue a warrant which permitted a wide ranging search of a barrister's chambers where privileged documents might reasonably be expected to be found would be an unreasonable decision in the administrative law sense, at least where an inadequate procedure was available for privilege to be claimed.

Where public interest immunity is claimed in the course of litigation the Court is able to determine the issue by reference to the particular documents in respect of which the immunity is sought. If necessary the Court can inspect the documents to determine whether the immunity should be afforded to them. Where, however, the question of public interest immunity is raised in the context of a search warrant different considerations arise. If there be a challenge to the execution of the warrant on the ground that documents seized are the subject of public interest immunity, the Court can in those proceedings decide whether the documents seized are properly subject to immunity. Such a challenge is no doubt what was contemplated by the joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ in Jacobsen v Rogers (1995) 127 ALR 159 when their Honours said (at 165-6):

"In accordance with the approach adopted in Baker v Campbell, it is open to the Crown to resist the seizure under a s10 search warrant of documents to which public interest immunity attaches.

As is demonstrated by Baker v Campbell and by this case, if a dispute arises as to the existence of the immunity, means are available to obtain a judicial determination of the issue. In any event, practical difficulties in giving effect to the immunity in the context of the execution of a search warrant would seem to us to be an inadequate reason for holding the doctrine to be inapplicable.
Such practical difficulties as exist are not insurmountable. That is demonstrated by the guidelines agreed in 1986 between the Australian Federal Police and the legal profession on the execution of search warrants on lawyers' premises where a claim of legal professional privilege is made."

A claim for public interest immunity in respect of documents seized under a warrant might also be raised in proceedings brought by the owner of the documents for their return on the ground that the seizure of them involved the seizure of documents which were the subject of the immunity. In such proceedings a Court might likewise in an appropriate case examine the documents to determine whether the immunity attached.

I am prepared to accept that once it has been decided, as it has, that public interest immunity may be an answer to a search warrant, the decision to issue a warrant to seize a document to which public interest immunity attached would be bad and could be set aside. But this would only be the case where on the face of the warrant itself, supplemented if necessary by the material before the Justice at the time of issue of the warrant, it is clear that the document for which search and seizure is authorised must be the subject of immunity. In an appropriate case and by analogy to the search warrant cases a decision to issue a search warrant which failed to take into account the existence of public interest

immunity might also be set aside. No such case was sought to be made out by the applicants here.

The problem in the present case is that the warrant authorised search and seizure of various categories of documents. One category was returns furnished pursuant to the Fisheries Act 1905 (WA). Another category concerned documents and information relating to the catching, carriage or purchase of rock lobster. A third category was files. Although returns furnished by fishermen would clearly fall within the secrecy provisions of s19 of the Fisheries Act 1905 (WA), the same could not necessarily be said of other categories of documents. Put in another way, once one moved out of the category of returns it would scarcely have been possible to say that on the face of the warrant it would be possible to identify the precise nature of the material to be seized, let alone to determine whether public interest immunity might attach. Public interest immunity can hardly be decided in the abstract.

The returns stood in a different category in that there was evidence as to the form which such returns took (no particular return was before French J) and the scope of the information to be returned. Further, the protection which was afforded to the return under s19 could clearly be ascertained. It was for this reason that the parties concentrated upon the returns in the present appeal. Had we been of the view that
the returns were documents to which public interest immunity attached the result would not have been that the warrant was wholly bad, for it would have been possible to delete the returns from the category of documents to be searched for and treat the balance of the warrant as valid on the principle of severability applied by Beaumont J in Brewer v Castles (No 3) (1984) 52 ALR 581.

A decision that the returns do not attract public interest immunity does not necessarily determine the application. It leaves theoretically open the possibility that there may be other documents the subject of the warrant to which public interest immunity attaches. What these documents might be and why the immunity might attach to them was not the subject of debate before us. Indeed I understood counsel for the applicants to concede that if he were unable to convince us that public interest immunity attached to the returns then the application would be bound to fail. In these circumstances it is unnecessary to consider the theoretical possibility further, with the consequence that the application must be dismissed.

The present case should, however, for the reasons I have sought to indicate, not be taken as authority that it is possible or desirable on an application to set aside a warrant to raise the issue of public interest immunity by reference to a particular document or class of document specified in a
warrant, except where on the face of the warrant itself it is possible sufficiently to identify the document or class of document so that the issue of public interest immunity may be properly determined. It will ordinarily be preferable to raise the issue in a challenge to the execution of the warrant when the precise documents in respect of which the immunity is claimed can be identified.

I certify that this and the
preceding nine (9) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date: 16 November 1995

IN THE FEDERAL COURT OF AUSTRALIA     )
WESTERN AUSTRALIA DISTRICT REGISTRY   )    No WAG 85 of 1995
GENERAL DIVISION  )

On appeal from the Honourable Mr Justice French in the Federal Court of Australia held at Perth in Action No. WAG 28 of 1995 (on remittal from the High Court of Australia).

BETWEEN:
PETER ROGERS
Appellant (Applicant)

AND:
JOHANNES JACOBSEN AND TERENCE LESTER DIBB
Respondent

CORAM:Foster, Hill and Lindgren JJ
PLACE:Sydney (heard in Perth)
DATE:16 November 1995

REASONS FOR JUDGMENT

LINDGREN J: I agree with the reasons of Foster J and the additional observations of Hill J as well as with the orders proposed by Foster J. I wish to add observations on one matter.

The case seems to be unique in the context of public interest immunity in raising for consideration a suggested competition between what will serve a particular public interest of the Commonwealth and what will serve a particular public interest of a State. Yet both are served by true returns: the Commonwealth's by true returns of income and the State's by true returns of catches. There is no inconsistency between the respective requirements: law abiding fishermen have complied and will comply with both.

The foundation of the appellant's case is a prediction that, in the absence of the immunity, fishermen will furnish false returns by way of understatement of catches in contravention of the State legislation in order to facilitate their furnishing of false returns by way of understatement of income in contravention of Commonwealth legislation.

Even if the evidence established that this was likely to occur (in my view the evidence does not establish this), I would not readily accept that the claim of public interest immunity was established. Although not directly applicable, what Gibbs ACJ said in Sankey v Whitlam (1978) 142 CLR 1 at 46-47 seems to me to be pertinent:

"if the documents can be withheld, the informant will be unable to present to the court his case that the defendants committed criminal offences while carrying out their duties as Ministers. If the defendants did engage in criminal conduct, and the documents are excluded, a rule of evidence designed to serve the public interest will instead have become a shield to protect wrongdoing by Ministers in the execution of their office."

On the appellant's case, public interest immunity in respect of the fishermen's returns would be "a shield to protect wrongdoing" by the fishermen vis-a-vis the Commonwealth.

It would at least require, not only clear evidence that an understatement of catches to a substantial extent was likely to occur, but also cogent evidence that other available means of the State's compelling fishermen to perform their statutory obligation of furnishing accurate returns would be ineffectual, before I could contemplate accepting that public interest immunity exempted the returns from seizure. The statement in the affidavit of Mr Rogers that "there is no economically viable management alternative for surveying and monitoring the abundance of fish stocks other than utilising the extensive records provided by the fishing fleets" does not establish this. Nor would it be established merely by evidence that the State would be put to enforcement costs which it had not needed to incur previously.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:16 November 1995

Heard: 19 October 1995

Place: Sydney (heard in Perth)

Decision: 16 November 1995

Appearances: Mr R Cock with Mr A Willinge of counsel instructed by the Crown Solicitor for the State of Western Australia appeared for the appellant.

Mr E M Heenan QC with Mr J McGrath of counsel instructed by the Commonwealth Director of Public Prosecutions appeared for the respondents.

[1995] FCA 932

16 Nov 1995