Smethurst & Anor v Commissioner of Police & Anor
[2019] HCATrans 216
[2019] HCATrans 216
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S196 of 2019
B e t w e e n -
ANNIKA SMETHURST
First Plaintiff
NATIONWIDE NEWS PTY LTD
Second Plaintiff
and
COMMISSIONER OF POLICE
First Defendant
JAMES LAWTON
Second Defendant
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 12 NOVEMBER 2019, AT 10.00 AM
Copyright in the High Court of Australia
____________________
MR S.B. LLOYD, SC: May it please the Court, I appear with my learned friends, MR P.D. HERZFELD and MR B. HANCOCK, for the plaintiffs. (instructed by Ashurst Australia)
MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with MR C.L. LENEHAN, SC and MS S. ZELEZNIKOW for the first defendant and the Commonwealth Attorney‑General intervening. (instructed by Australian Government Solicitor)
KIEFEL CJ: There is a submitting appearance for the second defendant.
MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MS K.M. SCOTT, for the Attorney‑General for the State of South Australia intervening. (instructed by Crown Solicitor’s Office (SA))
MS K.A. STERN, SC: May it please the Court, I appear with MR D.P. HUME for the Australian Human Rights Commission. (instructed by Australian Human Rights Commission)
KIEFEL CJ: The parties received a communication from the Court advising that the Court would be assisted if, in the first instance at least, there was a concentration of argument upon the validity of warrant and any relief flowing from that question. I see that your outline has dealt with that accordingly.
MR LLOYD: Yes, your Honour. What I am proposing to do and what I understood that email meant was that I should address those questions and then stop, and then the Commonwealth ‑ ‑ ‑
KIEFEL CJ: Yes, that is correct. I do not think the interveners will be concerned in this question. Thank you.
MR LLOYD: Part 1AA of the Crimes Act – I am looking first here at the search warrant legislation, deals with the search powers. It starts at page CJ of the court book. Division 2, which concerns search warrants, starts at page CQ and section 3E is also on that page. Looking at section 3E, maybe seeing that an issuing officer has a power to issue a search warrant in respect of premises once the specified state of satisfaction is reached - that is a state of satisfaction that there are reasonable grounds to suspect that there is any evidential material at the premises. Although I will need to come back to this page, I need to ask the Court to turn back to page CK, which is where section 3C is and there is a definition there of “evidential material”.
KIEFEL CJ: Mr Lloyd, you probably do not need to refer to pages - I think almost everyone is using pamphlet copies - just the section number.
MR LLOYD: Certainly. So there is a definition there of “evidential material” which refers to the two kinds of offences – sorry, to two kinds of offences, indictable and summary offences, and to things in electronic form. Then those two expressions are defined in section 3, which is page 9 of my pamphlet form but I am not sure if I have the same version.
KIEFEL CJ: This is the compilation date of 20 September, I think that is right.
MR LLOYD: Sorry, I will not go by the page numbers, I will just go by the ‑ ‑ ‑
KIEFEL CJ: Section.
MR LLOYD: Section 3 and it was the definition of:
thing relevant to an indictable offence or a thing relevant to a summary offence -
Both definitions can be engaged by things having a requisite connection to an offence against any law of the Commonwealth, which is sufficient for present purposes. Turning then back to section 3E(1), and bearing in mind those definitions:
An issuing officer may issue a warrant . . . if the officer is satisfied . . . that there are reasonable grounds for suspecting that there is ‑
at the premises anything with respect to an offence against a law of the Commonwealth that has been committed or is suspected on reasonable grounds to have been committed. Section 3E(5) prescribes several matters that must be included in a warrant. One is
the offence to which the warrant relates -
in 3E(5)(a). The provision reveals that all warrants must relate to one or more offences. I will just use the singular for convenience. The offence to which the warrant relates is the offence that is the subject of the state of satisfaction in 3E(1), hence the issuing officer cannot reach a state of satisfaction in 3E(1) unless satisfied that an offence has been committed, or there are reasonable grounds for suspecting that an offence has been committed, or possibly that there are reasonable grounds for suspecting that an offence will be committed.
These elements are derived from the definitions I have already taken the Court to from evidential material and things relevant to an offence. So on its ordinary reading, section 3E(5)(a) is referring to an offence in the sense of offending conduct, the subject of the issuing officer’s state of satisfaction. We note that section 3E(5)(c) requires a warrant to identify:
the kinds of evidential material that are to be searched for -
Again, in order to issue a warrant, the issuing officer must be satisfied that there are reasonable grounds for suspecting that there is any evidential material at the premises. State of satisfaction is to be based on information or oath. So the issuing officer must suspect particular kinds of evidential material to be at the premises. An officer executing the warrant is then empowered to search for those kinds of material and one sees that in 3F(1)(c).
The point we seek to make here, however, is that the warrant must in the first instance identify kinds of evidential material that are to be searched for. This Court has repeatedly held that the validity of a search warrant is dependent upon strict compliance with the conditions governing it or governing its issue. I can make good that proposition and some other propositions by going to this Court’s decision in NSW v Corbett (2007) 230 CLR 606, which is in volume 5, tab 39, of the joint bundle.
It starts at page 1521 of that bundle. I will refer, in case your Honours are not using the bundle, to the report page number, the CLR page number and to paragraph numbers. At paragraph 1 the Chief Justice agrees with the reasons of Justices Callinan and Crennan, and in paragraph 3 Justice Gummow does the same.
If I can go from there to page 617 and paragraph 44 - that is the beginning of the joint judgment of Justices Callinan and Crennan. At 48 it was made clear that one issue in appeal was whether the reference in the search warrant application to a repealed offence provision affected the validity of the warrant. It makes apparent that the repealed offence provision was replaced by other offence provisions of a similar nature.
Over from there to paragraph 75, the joint judgment identifies the question, being whether the search warrant legislation had been complied with when the application set out a description of the offence but gave the incorrect reference to the statute then creating the offence. At 87, in discussing the respondent’s submissions, their Honours refer to:
the established principle that strict compliance with statutory conditions governing the issue of search warrants is required -
Then there is a quote I will not read out from George v Rockett, which supports that proposition. Then in paragraph 88 the joint judgment notes that it must consider whether the statutory provisions had been complied with strictly. There is some discussion then as to developments of the laws and principles relating to search warrants, which I will not stop at. Going then to paragraph 95, it is observed that:
The need to specify the object of a search –
warrant –
by reference to a particular offence is now a common statutory requirement -
We say that that finds voice in the current legislation in section 3E5(a) and (c).
KIEFEL CJ: When you say “current legislation” ‑ ‑ ‑
MR LLOYD: I mean in the Crimes Act1914. Then at paragraph 97, a distinction starts to be drawn between the purpose of particularity in an indictment and the purpose of particularity in a search warrant. For an indictment it is to define the issues in the trial – one sees that in 98. In paragraph 99, for a search warrant, it can be less precise. It need only set the bounds of the area of search pertaining to an investigation of a suspected crime.
Over to 101, the reasons refer to a judgment. They considered that search warrants should disclose the nature of the particular offending relied upon. We say that that should be understood as a reference to the offending conduct relied upon. At 102, it is observed that that judgment of Justice Fox has been applied repeatedly. At 103, the judgment refers to a case in which a warrant contained a reference to an incorrect section in a statute. The first thing to note in that passage is that it was said that the warrant:
did not disclose an offence known to the law.
It was accepted in that case that if a warrant did not specify an offence known to law it would have validated the warrant. The paragraph goes on to refer to Justice Burchett – or a decision of Justice Burchett that downplayed the reference to “verbal formula”. What is important, we submit, is whether the warrant discloses the nature of the offence so as to indicate the scope of the search. Again, we submit the reference to the nature of the offence is to the particular offending conduct. We gain support also from that in a passage in paragraph 104. Towards the end of that paragraph the Court says:
The concern of the common law courts to avoid general warrants and to strictly confine any exception to the principle that a person’s home was inviolable is the original source of common, although differently expressed, statutory requirements. These requirements have as their purpose the proper identification of the object of a search by reference to a particular offence. This in turn limits the scope of the search authorised by the search warrant.
We say the need for the scope of the search to be apparent from the face of the warrant is important in two respects, first of all, the executing officer who has given the warrant needs to know the scope of the search and the person whose premises are being searched is also entitled – is entitled to be given the warrant, that is under section 3H and entitled, therefore, to know what the scope of the search is.
We say the scope of the warrant must be clear by its terms. Neither the executing officer nor occupier should be left to have any – have to infer or deduce the scope of the authorised search. I will not ask the Court to go to it but I note that in support of the motion that one should not have to infer or deduce the scope Justice Hely said that in Williams v Keelty (2001) 111 FCR 175 at 140 which is at page 2568 of the bundle.
Returning to Corbett, at paragraph 105 it re‑emphasises the need for strict compliance. At 106 - at the end of 106 the application was not invalid because it had stated the nature of the offence sufficiently even if it referred to the repealed legislation, that is, it was the conduct was described – that constituted the description of the offence and that was seen to be acceptable and that is what we say has not happened in this case. That is all I wanted to say about Corbett. I would refer the Court to one further authority in relation to warrants, which is the decision of Justice Lockhart in Australian Broadcasting Corporation v Cloran. It is in volume 6 at page 1783 ‑ ‑ ‑
EDELMAN J: Which tab?
MR LLOYD: Tab 44.
EDELMAN J: Thank you.
MR LLOYD: So we say that this is another case which suggests that the offence must refer to the offending conduct and not to be a bare reference to the section. So at page 152, using the report pages, one sees the terms of the warrant begin at the bottom of that page, over to the next page. At the end of the first paragraph on page 153 there is a reference to section 70 of the Crimes Act. At the bottom of that page, 153, over to the next page, Justice Lockhart explains that:
The warrants are therefore bad because they fail to describe the particular offences -
His Honour also points to the need for greater particularity where a provision creates a number of offences. We say that is the position in our case in relation to section 79 of the Crimes Act.
As we note in our reply, the Commissioner’s reliance on cases where warrants are upheld, even when they have wrong section references, we say supports our submissions because it shows that it is really the description of the offending conduct which is critical rather than the number of the section.
KIEFEL CJ: Is there a distinction – you talk about the nature of the offence and the offending conduct as the same thing? Is it - at particular stages of investigation you might not know - it might be the offending conduct that is itself the subject of the investigation. How specific do you say you have to be?
MR LLOYD: Not hugely specific. But I will give an example in relation to the warrant in this case. The difficulty in this case - and I will come to the warrant shortly, I want to go to section 79 first, but the difficulty in this case is not only that it does not even identify the elements of the offence which are being relied upon - and there can be an offence - under section 79(3) there could be many different elements that engage it, and it should at least identify as far as – on whatever basis satisfied the magistrate that there is a reasonable ground for thinking that an offence has been committed –it should identify what basis that was done under. So I am not saying it has to be pages of description; it certainly does not have to be like an indictment. But it has to be enough to limit the search or to define the scope of the search.
If I go now to section 79 and that is in - your Honours will have your own versions. Part VII of the Crimes Act is entitled “Official secrets and unlawful soundings”. Section 77 makes provision for construction of some standard provisions.
KIEFEL CJ: Parts VI and VII have been replaced, have they not, at the end of last year?
MR LLOYD: That is so.
KIEFEL CJ: So we are dealing with former legislation.
MR LLOYD: That is so. We are dealing with the legislation that was in place at the time of what is said to be the offending conduct of my clients.
KIEFEL CJ: Yes.
MR LLOYD: Section 77(1) contains a series of what we would say were spectacularly broad, inclusive definitions. We note the definition of “article”. We note the definition of “information” meaning:
information of any kind whatsoever, whether true or false –
including opinions. Subsection 2(a) is designed to give the part, again, broad operation. Section 77(5) says:
This Part applies to and in relation to -
so that little combination of words tends to give it a very broad operation. Then, relevantly:
document or article –
remembering the breadth of the word - how “article” was defined:
by whomsoever –
so that is very broad, and then:
whatsoever information it contains.
We will in due course say that that refutes an aspect of an implication that the Commonwealth seeks, that it is actually limited to certain categories of information, but the actual express words make it clear that the part is not limited to any specific categories or types of information. It is any information whatsoever, we would say.
Turning then to section 79, it contains 10 subsections. Subsection (1) identifies the circumstances when one of the stated things is a prescribed thing of that kind:
in relation to a person -
I will come back to this subsection because it is important, but just to explain the structure of the section. Subsections (2) to (4) create offences pertaining to things that are proscribed under subsection (1). Subsections (5) and (6) create offences pertaining to the receipt of things that need not be prescribed in respect of the receiving person. So taking (6) as an example, the receipt of information known to be or reasonably believed to be communicated in breach of subsection (3) is an offence - it does not have to be prescribed; the thing.
Now, if this offence had not been repealed, as your Honour the Chief Justice pointed out, perhaps, taking your Court to the article in this case might have been a risky proposition but happily it has been repealed. Section 79(7) to (9) operates together to, in certain circumstances, allow the intent element in subsection (2) to be proved by reference to the accused’s conduct or so‑called known character. Nothing turns on those subsections but it is relevant to know that they are there. Subsection (10), finally, provides that:
A person charged . . . subsection (2) may be found guilty . . . against subsection (3) -
That is presumably if they do not have the intent requirement at the beginning of subsection (2), and:
a person charged with an offence against subsection (5) may be found guilty of an offence against subsection (6).
Now, if I can return then to subsections (2) and (3). The offence in (2)(a) is identical to the offences in (3) save for two matters. The first is penalty. Subsection (2)(a) has a maximum penalty of seven years and (3) has a maximum penalty of two years. Secondly, (2)(a) is engaged only where the acts are done:
with the intention of prejudicing the security or defence of the Commonwealth or a part of the Queen’s dominions -
Subsection (3) applies to the prescribed conduct regardless of any intent of the person communicating the information in that respect. Thus, one subsection is concerned with the disclosure of secrets that have an impact on security or defence and the other is not so constrained.
Not only is there nothing in section 79(3) that limits its information pertaining to national security and defence but we would say section 77(5) speaks in favour of it having a much broader application. Given that I am not currently addressing the constitutional point, I will not take that matter further.
An offence is committed if a person either communicates a prescribed document to another person or permits the other person to have access to it under section 79(3). I will focus on documents, just to keep it simpler than referring to all of the various nouns that are there, but obviously the communicating or the permitting of access to applies to any of those listed prescribed things. The offence identifies, however, two categories of persons who can be communicated to without committing an offence. They are in section 79(3)(a) and (b).
KIEFEL CJ: I think in some of the written submissions subsection (3) is approached by reference to first person and second person, the first person communicating and obviously the second person receiving the communication or the prescribed information. The first person so referred to in subsection (3) is the person referred to in section 79(1)?
MR LLOYD: Yes. It is prescribed in relation to a person if it is prescribed in relation to the first person.
KIEFEL CJ: So when the warrant here refers to the plaintiffs as being the first person under section 79(3) that is tantamount to saying that they fall within section 79(1) in relation to prescribed information.
MR LLOYD: Well, it certainly – I am not if it is tantamount to saying that, but it means that 79(1) has to somehow be engaged, that has to be made out.
KIEFEL CJ: With respect to them and the prescribed information.
MR LLOYD: Indeed, and one of our complaints is that it does not actually say what part of section 79(1) is even relied upon. Yes.
KIEFEL CJ: Do you accept, though, the possibility that the plaintiffs could be persons to which section 79(1) refers?
MR LLOYD: Well, we would say, putting aside 79(1)(c) because that really is a different issue and no party is really relying upon that, we would say that neither of the plaintiffs could fall under 79(1)(b) and that leaves 79(1)(a). The exact construction of 79(1)(a) is somewhat elusive. The approach – I mean for our arguments, both as to the warrant and on the constitutional point, nothing ultimately turns on the different constructions but the Commonwealth approach would be that, as we understand it, somebody from the Signals Directorate perhaps got the documents under 79(1)(b) and provided them to one of my clients. That was a breach of section 79(3) presumably and, therefore, a contravention of Part VII and then my client – then a prescribed person in relation to my client, the Commonwealth would say, under 79(1)(a).
So, they say that it is in the possession of my client or was in the possession of my client and that it had been made or obtained in contravention and so as we apprehend how they put it is that it was attained by us in circumstances that it was a contravention – the giving of it to us was a contravention and, therefore, we obtained it in contravention.
Now, there are different possible ways of construing 79(1)(a) and, in a sense, the narrower it gets would require greater particularity in relation to the warrants and it could only strengthen our case. We say that we can succeed on the Commonwealth’s approach and in relation to the constitutional point we say it does not really affect that because that turns on the breadth of what communications it hampers rather than anything else.
So, we are proceeding for the moment on the assumption that a document provided to, in effect, anyone in circumstances where the provision of it amounted to a contravention of Part VII then means that that document is a prescribed thing in relation to that person so that if that person then passes it to somebody else then that person can commit 79(3). That is the only way on which my clients could possibly become subject to the provision. Now, I think I have covered ‑ ‑ ‑
KIEFEL CJ: Section 91.1 of the Criminal Code relates to defence secrets. No one is relying upon that?
MR LLOYD: Yes, no one is relying upon it. I think it relates to classified material or to espionage. It is in the book at page BR. It relates to communicating:
information concerning the Commonwealth’s security or defence –
and then with an intent requirement as well. So, certainly it is not suggested by the Commonwealth in their submissions that my client is brought within the scope of section 79 by reason of section 91.1.
I think I had just addressed section 79(3) and noted that there are two exceptions. The first exception pertains to people - a person who is “authorized to communicate it”. There is not any actual explanation in the scheme as to how that authorisation comes about, but presumably it means some unspecified form of authorisation by some unspecified member of the Executive.
Then the second limb in 3(b) talks about duties. So it is a person to whom it is “his or her duty to communicate it”. So you can give it to somebody if they have a – if that person has a duty – sorry, you can communicate it if you have a duty to communicate it to that person. You can give it to a person - you cannot give it to a person other than a person to whom it is his or her duty to communicate it. Then that duty then has to have the character of being in the “interest of the Commonwealth”. So that is presumably not every duty of that kind, but just duties pertaining to the interest of the Commonwealth, which is again somewhat vague, but it finds, we would say, a wrongful but some place in the warrant description in this case.
GAGELER J: Can you give an example where (b) is engaged?
MR LLOYD: It may be that an officer in the army has a duty to give something to a more senior officer.
NETTLE J: What about an ordinary citizen into whose hands such a document came, would he or she have a duty to report it to the security services?
MR LLOYD: I suppose it would depend upon the circumstances but not per se.
KIEFEL CJ: The question then would be whether it is a legal duty or some moral or ethical duty, which I think is the point made by the Australian Human Rights Commission.
MR LLOYD: Yes, but the duty – that is to do with the nature of the duty, but it still has to be a duty of whatever kind in the interests of the Commonwealth and then the word “duty” itself is used twice – it is used in subsection(3) and it is also used in subsection(1)(b). Perhaps I should go back to (1)(b) because we have to say some things about that. So it has to fall within either (a), (b) or (c).
I have already said something about (a); (c) pertains to places. I will not say anything further about (c). But (b) is a more complex provision. It has two elements. It has what I would call a connection element and then it has a duty element. The connection element is satisfied if the accused has been “entrusted” with the document:
by a Commonwealth officer or a person holding office under the Queen –
That is option 1, or option 2 is the accused has:
made or obtained [the document] owing to his or her position as a person –
under (i) to (v). So, that is a range of positions that bear some connection to the Commonwealth. Then the duty element is in the tailpiece to paragraph (1)(b). Now, that element is satisfied if the accused is under a duty to treat the document as secret by reason of either (a), its nature; (b) the circumstances under which the document was entrusted to the accused - so that picks up the first category of people in the first element; or the circumstances under which the accused made or obtained the document - that picks up the second category of persons in the first category of people; and then “or any other reason”, so if you have a duty for any other reason.
Now, what one sees over section 79(1)(a) is that there are then many different ways in which it could be asserted that a thing or information or document is prescribed in relation to a person. In the Franks Committee report they had some material which suggested that there were over 2,000 different ways that the various iterations in these sections could be formulated into charges. Whether it is that many or not there are certainly many different ways. So, concerning questions (1)(a) and (b) of the special case, that is all we want to say about section 79.
KIEFEL CJ: Could I just ask you this, Mr Lloyd, if one read section 79(1)(a) as applying to a person who has received a document or thing from another person and that other person has given it to the first person in breach of 79(1)(b), would the offence under 79(3)(a) connecting with section 79(1)(a) have a mental element, knowledge or understanding?
MR LLOYD: Yes, well, the Commonwealth has pleaded that there is an intent element, so you have to intend to communicate it – to communicate something which is a prescribed – has the character of being a prescribed thing which would then bring in whatever iteration of section 79 made it a prescribed thing.
KIEFEL CJ: I am just wondering, though, whether section 79(1)(a) itself brings in a mental element of knowing that the document has been made or obtained in contravention of the part before section 79(3) can operate.
MR LLOYD: Possibly, your Honour, I do not think it matters to our argument, but ‑ ‑ ‑
KIEFEL CJ: No, you are certainly ‑ ‑ ‑
MR LLOYD: It could be ‑ ‑ ‑
KIEFEL CJ: ‑ ‑ ‑ analysing the sections rather more than those who drafted the warrant, I suspect.
MR LLOYD: I am sure. It may be that it is simply - that it is in fact in contravention ‑ ‑ ‑
KIEFEL CJ: Yes.
NETTLE J: You would have to know - to commit the offence you would have to know or have reasonable grounds to believe.
MR LLOYD: Yes.
NETTLE J: The general intent.
MR LLOYD: That is so. So at that point I think I would want to turn then to the warrant in this case. There are two warrants in the special case book. The relevant warrant that was executed is the second warrant, and that is under page 38 of the book, it starts at page 38. It will be seen that the issuing officer was satisfied that there were reasonable grounds for thinking that there was at the stated premises, evidential material that satisfied all of the three conditions.
The first condition was very broad. There is a range of kinds of things that might record information, being only need to comprise any one of the things on the list. The second condition provided that the items in the first condition must relate to any of the named persons or entities or things in the second condition, and it may be observed that given that the premises were Ms Smethurst’s home, it might be expected that pretty much everything in the home would relate to her. So that is the first two conditions. The third condition required that the evidential material must:
afford evidence as to the commission of the . . . [stated] indictable offence -
Then there is a one‑paragraph description. The grammar of the paragraph is somewhat unclear. There is an adjectival clause:
that was not in the interest of the Commonwealth -
immediately follows the word “person”, presumably is not referring to a person that was not in the interest of the Commonwealth, which means that - perhaps it means that document was not in the interests of the Commonwealth or perhaps it means that the communication of the document to a person was not in the interests of the Commonwealth, in which case I suppose it would be an adverbial phrase.
It also alleges that the plaintiffs together permitted that person to access the document. This is all said to have been contrary to section 79(3). We say whichever way it is read it does not state the offence as required by section 3E(5)(a). The offence applies only to prescribed documents and prescribed articles. They must be prescribed in relation to a person and, in particular, they must be prescribed in relation to both of the accused.
Both the failure to state that prescription was an element of the offence, as well as the failure to state the manner in which it was suspected that the document or article was prescribed in relation to the plaintiffs meant that the warrant did not state an offence known to law. Moreover, the formulation used was, we say, apt to mislead both Ms Smethurst and the executing officers.
So to look at that paragraph, the prescription could have said something like “On 29 April, Annika Smethurst and The Sunday Telegraph communicated an article” – or “published one or more articles that contained information obtained by an officer of the Commonwealth that that officer was under a duty to keep secret”. Now, if it contained all of those elements that would be a narrower and different search to this search.
So there may be some – a searcher might have come across a document that might have been an article or something that, say, was published that was highly critical of the government. Now, a searcher might have said well, that article is not in the interests of the Commonwealth and it falls within this search, but if it had have been properly particularised by reference to the actual offence then maybe they would say there is nothing in the article at all that is secret or referred to as being secret, so it would fall outside the search.
So it is not merely theoretical. It is important that these warrants have some measure of precision and the example I have given does not require an outlandish measure of precision, just something which is not wrong.
KIEFEL CJ: The first defendant and the Attorney intervening say that if you read the third condition with the first and/or second conditions you are able to deduce sufficient ‑ ‑ ‑
MR LLOYD: We then go back to rely upon what Justice Hely said, that you should not have to deduce, and second of all, we say there is a requirement to state the offence and that it does not state the offence and it does not say that the material was secret. There is also the fact that it is not limited by reference to that. So if, for example ‑ ‑ ‑
GORDON J: Not limited by reference to what, Mr Lloyd?
MR LLOYD: It is not limited by reference to the matters one sees in the first condition and the second condition that the Commissioner says you should be able to adduce from because in the first condition it does refer to some document from the Signals Directorate, but that is just one of many things that could be there.
So if that was referred to in the third condition and similarly if the article that is relied upon in the second condition was in the third condition and then put in the context of the terms of a prescription of a thing in relation to a person, that could properly narrow the scope of it. So if it had those elements, plus the elements of how the matter is said to be prescribed in relation to the person, that would be enough, but it does not do that. So it does not have that narrowing capacity.
In addition, it talks vaguely about the notion that something has to have been not in the interests of the Commonwealth. But the thing that has relevance to “not in the interests of the Commonwealth” is the character of the duty of the recipient and that is not how it is put at all. So it does not positively state the elements of the offence in a coherent way and, to the extent that it picks up something from section 79(3)(b), it mischaracterises that material. We say that is enough to mean that the warrant does not state an offence known to law.
EDELMAN J: When you say “the elements of the offence” do you mean the factual matters that could satisfy the elements of the offence or do you simply mean drawing out from section 79 the elements that are required by that legislation abstracted from any of the factual circumstances?
MR LLOYD: We say that we can succeed on either of those matters but we would say that the case law suggests that you have to say the nature of the offence and, in the context of that, that would require the elements by reference to the factual circumstances.
EDELMAN J: So, if an offence, for example, were an offence of engaging in unconscionable conduct it would not be sufficient to refer to engaging in unconscionable conduct without some degree of particularity of what the conduct is said to be?
MR LLOYD: I suppose, again, I would say in this case they did not even get to engaging in unconscionable conduct so that would be enough for us. But, we would say that, yes, the nature of the offence – the statement of the offence for section 3E(5)(a) should include some description of the factual circumstances to what it was that constituted that thing. We say that the absence of that is enough to mean that this warrant does not state an offence known to law and, in so doing, is apt to mislead the ambit of the search and that that makes the warrant invalid and that is enough to answer question (1)(a) yes.
We also contend that even if the warrant does state an offence known to law it does not do it with sufficient particularity because the first and second conditions were so general, the need for particularity in the third is heightened. We contend that there are many ways in which the document could become a prescribed document in relation to a person. The description of the offence lacked any sufficient precision. It did not state the document was prescribed – nor that it was prescribed in relation to one or other, or both of the plaintiffs. Needless to say that it did not identify in any manner the way in which the documents were said to be prescribed in relation to the plaintiffs.
So, looking at the document which is referred to there – that document is at page – sorry, the document referred to in the second condition which is the web page, is set out in the special case book from page 18. I suppose two observations can be made about this. It is set out from page 18 through to page 23. The first thing to note is that my client – is this document which is the ministerial submission – there is something that appears to be a photograph at the very top of it. Then there is some discussion as to the contents being what legislative reforms really were proposed in it. Then there is some discussion of various sources. That is one of the sources but not the only source referred to in the document.
So, for example, on page 21, in the last paragraph, there is a reference to “an intelligence source”, at the bottom of page 21. Over on to page 22, there is a reference – presumably to the same intelligence source – on page 22. On page 23, the second‑last paragraph, to a “government source”. So, again, the warrant does not particularise which, if any, of those sources that are being referred to or relied upon.
GORDON J: Your complaint really is, is it not, that the failure to engage with 79(1)(a), i.e., identify with precision the prescribed information at the outset and, therefore, to set the extent of the search by reference to that identification, in effect, provides the answer or identifies the reason why you end up in this predicament. In other words, absent that – as I understand your argument, whether it is – no offence known to law or whether it is lacking sufficient particularity it is the failure to identify with precision what it is is the prescribed information giving rise to the problem that gives rise to these difficulties.
MR LLOYD: Indeed, and allows for a much broader search than might have been done if it had have been done with greater precision. Now, in terms of the ability to have greater precision, although we do not say it needed to be anything like this, we note that the Commissioner’s submissions at paragraphs 37 to 40 were able to provide greater particularity and we say that that shows that it could have been done. It must have been done in greater particularity in order to satisfy the magistrate.
KIEFEL CJ: But the special case does not contain the information that was before the magistrate.
MR LLOYD: No, I mean, we asked for it and the Commissioner declined.
KIEFEL CJ: They declined, yes. So, this Court does not know what was before the magistrate either.
MR LLOYD: No. I do not think anything turns on that save for when it comes to a, sort of, discretionary issue later.
KIEFEL CJ: Well, no, nothing turns on it in the sense that there is no issue raised concerning whether or not the magistrate had reasonable grounds for belief. Your point about the question of whether an issuing officer has grounds for belief relates more generally to the warrant and why the warrant needs to state the offence.
MR LLOYD: Yes, so that the executing officer can know what it is that the magistrate was satisfied about. So we say that there needed to be greater level of specification. It was not done. Whether one answers question (a) yes or (b) yes, we say that is sufficient to make out our case that the warrant is invalid.
Now, if I turn to question (4) insofar as it relates to question (1). Question (4), of course, is about relief. We would say that the warrant should be quashed. If one reviews what occurred from the perspective of the warrant was invalid then the entire search was a trespass and is, obviously, therefore, tortious.
In Corbett, well, I mean I think - I will not take the Court to it but in Corbett at paragraph 81 the Court notes that where a warrant is invalid the conduct is liable to be tortious as a trespass. It follows that the taking of the seized material was a consequence of tortious conduct. A wrongful but honest belief in lawful authority is not a defence to a trespass, it still remains unlawful.
The court has the power to grant an injunction to reverse the consequences of a tort and we cite in our submissions in paragraph – footnote 62, I think, cases that support that. So, there is a power to do it. Here we say that this would be achieved by requiring the Commissioner to delete the material that was copied.
EDELMAN J: Just so I understand that, there are a few propositions that are wrapped up in that submission. One is that a trespass is committed, as I understand it, by the copying of information from a computer on to a USB drive. Is that right?
MR LLOYD: Well, the going onto the property and the requiring access to it, it all constitutes conduct done during an act of trespass.
EDELMAN J: But you said that it is the reversing of the consequences of the trespass?
MR LLOYD: Yes, so if, for example, they had come in and just seized something we would say they should give it back. The difficulty is that in this case they took the phone, copied the material that was on the phone, presumably – I do not know this – but I presume on to some drive or device they already owned and then they took that away. So to undo the consequences of the trespass - in this case we say an injunction requiring the deletion of that copy then undoes the trespass.
KIEFEL CJ: As you say, though, if they had simply taken the information you may have had delivery up for obstruction under notions like confidential information in equity. But that is not this case.
MR LLOYD: No, no. But we would say that if they had just taken – if they had seized something we could have asked for it to be returned and an injunction to return it would have undone the tort ‑ ‑ ‑
EDELMAN J: But that is easy because if they had seized something you would still have a greater right to possession than the AFP who have taken it.
NETTLE J: It could be an action in detinue if they have taken documents.
MR LLOYD: Certainly. So what we say here, to undo the lawfulness that was done during the trespass, or in the course of the trespass, it is a matter of deleting, if the ‑ ‑ ‑
EDELMAN J: So your point is that the copying was an unlawfulness - the act of copying was unlawful.
MR LLOYD: It was part of the unlawfulness during the trespass. It was done in effect by force of the warrant. My learned junior is pointing out to me there are two matters. One is the trespass to the property, but the other is the trespass to or conversion of the goods, and using the phone in order to take the copy of it. All of that, we would say, was tortious.
NETTLE J: You have damages for the conversion of the phone in manipulating it. You want not damages for that, but an injunction in effect deleting their copy of the information.
MR LLOYD: That is ‑ ‑ ‑
NETTLE J: It is not alleged to be confidential, and it does not sound as though it is to you. On what basis would there be an injunction mandatorily to compel them to delete it?
MR LLOYD: So, in our submissions, at footnote 62, we cite – I do not think these are in the book – but we cited those authorities – my friends did not contest that the court had power to make orders to reverse or to give the orders that we seek in relation to the deletion so we did not put them in the bundle, but we say that there was a trespass in requiring us to provide the phone. Obviously everything on the phone is – belongs to my client and the taking of it – the forced copying of it is part of a trespass.
EDELMAN J: Is there authority that the “consensual but mistaken” or the “consensual but given consequent to a warrant if invalid” conduct can amount to a trespass? In other words, we do not have all the facts, but if the facts were that the phone was handed over voluntarily under the mistaken view on your case that the warrant was valid, that that amounts to a trespass?
MR LLOYD: Well, we have enough facts because we know that – we have also challenged, although it is not something we have been asked about on this occasion or we have prepared some submissions for or to address on, but there is a provision under the Act at section 3LA to require my client to provide assistance in order to access it and an order was made under that. So absent that – and the special case facts, as I recall, indicate that that order was used to require my client to provide access to the phone ‑ ‑ ‑
EDELMAN J: Assume that your argument about all of that is correct and that there was no legal basis for either the warrant or the order to require the assistance, nevertheless, if the assistance was given under the mistaken view that the order was valid and the warrant was valid, does that amount to a trespass?
MR LLOYD: We would say that it was because the powers to actually even turn the phone on only arise under the warrant, under section 3K, and section 3L provides express power to actually use the phone. Absent that ‑ ‑ ‑
NETTLE J: It was a trespass to chattels when they turned the phone on.
MR LLOYD: Exactly.
NETTLE J: But you still have to get the information and Lenah Game Meats was on the basis of an equitable obligation of confidence, it having been filmed in private. You do not allege confidence.
KIEFEL CJ: You are talking in terms of property but I do not think it has been suggested in your written submissions that any information taken was confidential to the first plaintiff.
MR LLOYD: Well, it was on her phone. We would say everything that is on a person’s phone ‑ ‑ ‑
KIEFEL CJ: Much may turn on what its ultimate source was. That is what we do not know. There may be some communications that could be said to be confidential and recognised by equity as such and there may be others that would not be. It might be a mixed - we do not know.
MR LLOYD: It is certainly true, your Honour, that our claim has not asserted and is not relying upon the need for confidence.
GORDON J: With respect to any of the documentation that has been taken from the phone.
MR LLOYD: We say that it is enough that it was forcibly taken from the phone. So, there is a tort in accessing the property where the phone was located, a tort in taking the phone.
NETTLE J: That gets you damages; it does not get you destruction, unless you show a basis or a mandatory injunction.
MR LLOYD: Well, we say that the basis for the injunction is to undo ‑ ‑ ‑
NETTLE J: What is the cause of action that underlies the injunction?
MR LLOYD: Damages is not an adequate remedy to us in the circumstances of this case. To undo the tort - destruction achieves the undoing of the tort.
EDELMAN J: You want to really say that the information is property that you want to treat in the same way as tangible property and it is property of your client.
MR LLOYD: Well, I do not think I have to go that far. It is sufficient that the respondent had put themself into a position of having information which was in our possession only by reason of a series of torts in order to get that information. If we want relief in respect to undo that tort then, although damages can be a remedy, injunctions can also be a remedy to undo it and the damages does not provide us with useful or material relief in the circumstances of this case, unlike an injunction.
GORDON J: The difficulty about even assessing that contention is we do not know what this material is. It is not before the Court, so how does one make an assessment even at that level, assuming you are right in the way you have put your argument? You are asking for a mandatory injunction. One has to put into play a set of considerations and balances and work out where the balance lies, putting aside even the cause of action.
You have two problems I think you need to address. One is Justice Nettle’s question about the cause of action and the second is where is the balance? How do we assess the balance, absent fact? There is nothing in the special case directed at either of those issues.
MR LLOYD: I accept that, and I accept that the special case does not in terms say that there was a specific character of confidentiality to the material, but it is still material that can only be accessed by accessing the phones so it is, in that sense, confidential because it is not available to the world. It is not accessible to anyone. It requires the permission of the person who controls access to the phone.
EDELMAN J: You are really talking about tort of invasion of privacy then, are you not?
MR LLOYD: We are seeking relief to undo trespass to our property. Damages, in our case, is not an adequate remedy – damages is not an adequate remedy. Injunction is still available to provide a remedy for the tortious conduct.
KIEFEL CJ: Mr Lloyd, if the concern of the plaintiffs is the use of the material, why would not a negative injunction be sufficient in terms of the current undertaking which has been given by the first defendant that the material just not be used?
MR LLOYD: It probably would be sufficient, your Honour. I accept that, that if there was an injunction that they do not use it and do not have regard to it then that would be sufficient to ‑ ‑ ‑
EDELMAN J: You would still need to identify what your underlying right is and you would rely then on this underlying trespass right, would you?
MR LLOYD: Or the series of trespasses, yes, or tortious conduct – the conversion in relation to the phone and the trespass under the warrant and also, we would say, section 3LA order, although I know that is not currently before the Court.
GAGELER J: Mr Lloyd, insofar as you put your case on the basis that you want an injunction to restore you to the position that you would have been in if the trespass had not been committed, what is the best authority you can point to for the ability of a court to grant such an injunction?
MR LLOYD: I think the best authorities we could come up with were in the footnote in paragraph 62. Because it was not pushed back against by the Commonwealth we did not develop that. We are content to do a brief note, if that would assist the Court, to develop what we have in footnote 62.
EDELMAN J: They are all cases, are they not, of confidential information or intellectual property?
MR LLOYD: I do not think so, your Honour, no. We do not think it is limited in that way.
BELL J: Lenah Meats proceeds on that basis, does it not? If one looks at the Chief Justice at page 230 of the report, paragraph 52, his Honour notes that:
If . . . the appellant had been a party to the trespass, it would be necessary to reach a conclusion –
affirmatively respecting the question of breach of confidence. That seems to be the basis on which his Honour proceeded, and then the other members of the Court. That was the equity which supported the injunctive relief, would it not?
KEANE J: Or would have.
MR LLOYD: I think that is so in that case, your Honour.
NETTLE J: Redland Bricks is even less assistance. That is a mandatory injunction to restore land after cutting it away, of the Wollerton and Wilson v Costain kind, and that is because damages were an inadequate remedy to redress the tort of trespass which had there occurred. Here there is no trespass to the information, only to the telephone, and damages are adequate for that.
MR LLOYD: We say damages are not adequate for that because that means that the respondents then get the benefit of the trespass.
NETTLE J: If it is secret, if it is confidential you have a cause of action, but otherwise I fail to see why you should have the aid of equity to restrain its use, particularly when you are fully compensated for the trespass in conversion that is accorded by your cause of action and damages.
MR LLOYD: Well, given the uses that can be made of it, we say we would not be fully compensated in respect of inaction for damages, but perhaps a negative injunction would be sufficient for our purposes, if they are just simply restrained from using it.
NETTLE J: What if they want to use it as evidence?
MR LLOYD: Well, that is what we say they should not be allowed to do, because they get the benefit of the trespass.
NETTLE J: Well, is that not a question under section 138 of the Evidence Act, then?
KEANE J: In cases under section 138 and the discretion to exclude unlawfully obtained evidence has it ever been held that the mere fact that the evidence has been obtained by trespass is of itself a basis for rejecting the evidence, as opposed to being one element in a balancing exercise as to whether or not the Crown should be able to rely on it.
MR LLOYD: I accept that, your Honour, and I accept that the‑ ‑ ‑
KEANE J: So that once you accept it, it makes it difficult to understand your submission that this is about undoing the consequences of the tort. If, in the ordinary course, the case came before - the evidence came before a court of trial the question would be whether the evidence should be admitted. An argument that it should be returned to the accused, or someone else so that it cannot be used, is entirely novel.
MR LLOYD: Well, we would say, your Honour, that in relation to section 138 that arises in the context where the material is - where there is a - if I go back. There are certainly cases in which there are proceedings pending and there has been a warrant that has been held to be invalid and the court has said that it is left for the criminal proceeding to determine what are the consequences of that and the section 138 indicia are taken into account.
We say we are different to that class of case because there is no proceeding pending and that the default position when there is no proceeding pending is for the trespass to be undone, either by returning the material, if it is just seized material, or, we would say, having an injunction which negates the trespass in one way or another so we do not have a situation where a court ‑ ‑ ‑
GORDON J: But once you accept you are in a different – assume you are right and you accept you are in a different position to section 138 then you are driven back to what I put to you before. We have no facts before us to undertake this sort of form of balancing exercise which enables you to identify the cause of action and where the balance lies. We do not know what the material is. We do not know whether or not, by its nature, it itself attracts a claim for confidentiality – whether some other basis attracts to it – whether or not the circumstances given, having regard to the nature, attract relief other than damages.
MR LLOYD: We would say, your Honour, that we are entitled by reason of the trespass to relief. If my friends want to say that, as a matter of discretion, relief should be refused because of the section 138 factors – should be taken into account – that is a discretionary consideration. But that is a discretionary reason why the release that we are prima facie entitled to should be refused – not something that we have to positively establish how a court would determine it under section 138. We would say it was for the Commissioner to say why this material – they do not have access to it but it would have been for them to determine those matters and it just cannot be done at this stage.
KEANE J: Why would not the appropriate order be either to continue the undertaking or to have an injunction that is framed on the footing that the terms of the undertaking apply until an order of a court of competent jurisdiction to the contrary? So that if the evidence is then tendered at a trial, that court can decide one way or the other whether or not to admit it. But, pending that, the current status quo would be preserved.
MR LLOYD: The problem with that, your Honour, is that that means that in every case where, as here, there is an investigation going on and a warrant has been issued – presumably because of an investigation that is going on – if the warrant is unlawful in every case the Commissioner will say we will keep it and see if ‑ ‑ ‑
KEANE J: No, not at all. In cases where someone who has had information taken from them in circumstances where that person can show the information is confidential to that person, then there might be an order for delivery up. But, as has been said a number of times, you are not in that position.
MR LLOYD: We say that we are at least in a position enough – it is confidential because it is on somebody’s own phone and they are the only ones who can access it. On the evidence, what one needs – one needs to have some kind of password in order to access that material.
EDELMAN J: That makes it private. It does not make it confidential.
MR LLOYD: We say there are not any warrant cases that say that relief is only available if something is not confidential – sorry, is confidential. So, we say it should be enough that the warrant was unlawful, that absent a court that is in a position to deal with the documents we should be entitled to a relief that provides us an adequate remedy for that tort and the adequate remedy, in the circumstances of this case, is an injunction at least preventing the Commissioner from having regard to or accessing, or using, the material – if not, just having it deleted.
KIEFEL CJ: That might be a convenient time for the Court’s break, Mr Lloyd.
MR LLOYD: Thank you, your Honour.
AT 11.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.33 AM:
KIEFEL CJ: Mr Lloyd, the Court considers that it might be more useful if we stand over further argument from you in relation to the question of relief until tomorrow morning. Unless there is something that you wish to add, we could proceed to hear from the first defendant and the Attorney but would not expect them, of course, to develop argument in relation to the question of relief although they may wish to say what their position is - we would be assisted by that. Unless there is something further you wish to add, it may be as well to stand the matter over so that you can consider your position further.
MR LLOYD: I would take that, your Honour, but perhaps I should indicate that if ‑ ‑ ‑
KIEFEL CJ: Could you speak up a little, Mr Lloyd.
MR LLOYD: Sorry, I should indicate that from my client’s perspective while if the position the Court were to reach on grounds 1(a) – sorry, questions (1) and (4) were to the effect that the warrant was invalid and either the relief we originally sought or some maybe modified injunction, sort of, a negative injunction - perhaps if I just note this.
One possible negative injunction might be under section 3ZQU of the Crimes Act, that is the section which empowers a constable or a Commonwealth officer to use seized material including for preventing investigating or prosecuting an offence and in a whole lot of other ways, we would say that that power pertains to seized - material that had been lawfully seized under a warrant and so to that extent that may be that we could get an injunction just to prevent the use of that material. That might be one thing we would suggest tomorrow.
KIEFEL CJ: You would need to consider even with a negative injunction, though, your underlying cause, would you not?
MR LLOYD: Indeed, I will develop that tomorrow but the other thing I would want to say is that if my client - ultimately got one or other form of relief which meant that the respondents could not use that material, that might be sufficient to resolve the matter but if my client were to be refused that relief my client would want to press for the declaration of invalidity on constitutional grounds of section 79(3) because that would be another and more direct relief available to my client.
KIEFEL CJ: That would be a relief but how would that further assist in relation to the relief so far as concerns what has been seized or taken? It would not alter that at all.
MR LLOYD: I accept that – well ‑ ‑ ‑
KIEFEL CJ: It would not put you in a stronger position in relation to the ancillary relief which is probably now the most important relief.
KEANE J: So far as the utility of any order the Court would make in that regard, it would not have any particular utility for the future because the provision has been repealed. It would have no utility at all in any practical way.
MR LLOYD: It would have utility for my client, because under the agreed facts my client is currently being investigated for an offence under it. It would also potentially have utility for the relief. If, contrary to our view, the section 138 factors are matters that are to be considered in deciding whether or not to grant an injunction, if in fact the underlying offence, that is to say the offence that supported the warrant was in fact not an offence known to law, that would be a factor to be weighed in our favour as to why an injunction should be granted because there could not be a prosecution in relation to the offence that it was obtained – that the material was seized in respect of.
So the cases are consistent with the position I am putting, but I accept possibly distinguishable by difference of the different statutory model. But the policy is the same. Unlawful seizure does not equal unavailable to be used in criminal proceeding and does not equal an entitlement to return of the material.
I think I have said what I need to say by way of how discretion – why the discretion should be exercised favourably here, save to invite your Honours to note one provision in Part 1AA in the Crimes Act. So if your Honours could go back to the Crimes Act and turn to section 3L.
KIEFEL CJ: I am sorry, did you say 3L?
MR DONAGHUE: Yes, 3L, your Honour. It is headed “Use of electronic equipment at premises”. This is part of the regime, picking up the point I discussed with Justice Gordon earlier this afternoon about the policy of the Act favouring copies being made rather than seizure of equipment. In subsection (1A) there is a power to:
(a)copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or –
(b) if the occupier of the premises agrees –
to copy it to a device “at the premises”, so here we used (a) obviously, and then to “take the device from the premises”. Subsection (3) points out that you can only seize material under (a) if:
(a) it is not practicable to copy –
it, as there identified. And subsection (1B) deals in terms with what happens to the copy. If the person takes the device once:
the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU . . .
the Commissioner must arrange for:
(c) the removal of the data from any device –
Or:
(d) the destruction of any other reproduction –
of it. The purpose is in 3ZQU, which is also in the book, in (1)(a):
(a) preventing, investigating or prosecuting an offence –
not necessarily the offence identified in a warrant, and:
(k)deciding whether to institute proceedings, to make an application or request, or to take any other action –
Now, those provisions in their terms apply to material lawfully seized under a warrant. So I would have to accept, I think, that they do not apply in their terms, if your Honours were against us on the validity of the warrant submissions. But there would be nothing to prevent your Honours, consistently with the kind of approach Justice Wigney adopted in Caratti, of making an order allowing the first plaintiff to retain the material seized on the basis that it be dealt with as if governed by 3L(1)(b) or orders to that effect, such that ‑ ‑ ‑
GORDON J: When you say “first plaintiff”, do you ‑ ‑ ‑
KIEFEL CJ: You mean first defendant?
GORDON J: ‑ ‑ ‑ mean first defendant?
MR DONAGHUE: Sorry, I do mean the first defendant ‑ yes, I do. So, in other words, your Honours could tie any right to retention of the material to the proposition that, in circumstances where the statute would have required it to be destroyed, it must be destroyed. By contrast, in circumstances where it would be entitled to be retained, then that would follow.
I say that because in the event that a proceeding is commenced, and a criminal proceeding is commenced, then obviously the criminal court will rule on the matter. Our friends seem to have a concern that if no proceeding is commenced, then whatever happens to the material – now, on one view, it does not matter. It is a copy that was made, and it would not be relevant to be anything. But to the extent that there is a concern about that, there would be no difficulty with an order that required its destruction, in accordance with the statutory regime.
GAGELER J: While you have got the statute open, we were taken to 3ZQU briefly this morning. Does that also only apply to lawfully seized and copied things and documents?
MR DONAGHUE: That was inherent in an answer I gave to your Honour earlier. Yes, it applies to material seized under this part.
GAGELER J: That is a specific authorisation to use that material for the purpose of investigating or prosecuting an offence.
MR DONAGHUE: Yes. Yes.
GAGELER J: In circumstances where that does not apply what, if any, provision takes its place?
MR DONAGHUE: Well, I apologise, your Honour, for not answering your Honour’s earlier question more clearly. That provision would mean ‑ to go back to the example I gave Justice Edelman ‑ where property has been seized that undoubtedly belongs to someone else, if they bring an action seeking to have their property returned to them, the reason that the police would be able to resist that application is by relying upon 3ZQU. That would be a statutory entitlement to retain the material that had been lawfully seized and that would be the end of the case.
If we do not have ZQU, we do not have a statutory answer, and that is why we are in the territory of discretion. That is why it would be necessary to persuade the Court to exercise the discretion that I have been addressing your Honours about, so as to prevent relief by way of return.
GAGELER J: Mr Solicitor, it reads to me not as a statutory authority to retain, although that would be its consequence, but rather as a statutory authority to make use of. So my real question was, where do you get the statutory authority to make use of unlawfully seized material for the purpose of an investigation or prosecution?
MR DONAGHUE: Your Honour, I cannot point you to a provision that grants that authority. But, in my submission, the question would be, why is specific statutory authority needed? In circumstances where the answer to that might ordinarily be expected to be because somebody else has a private law right that they can enforce against you that would prevent your ongoing retention and use of the material.
If an attempt has been made to vindicate that right, and the court has rejected on discretionary grounds that application, so as to allow the material to remain in the hands of law enforcement until it is sought to be used at the criminal trial, then no more than that is required.
If I am wrong in that answer then that would seem to have quite profound implications for Bunning v Cross because whenever prosecution or law enforcement have unlawfully obtained material, the question your Honour asks me could be asked, well, where are you getting your authority to use or to seek to tender that unlawfully acquired material and the answer, one would expect, to be much the same because one does not tend to find statutory authorisations entitling the use of illegal material.
So, in my submission, it is one thing to say as obviously one does need affirmative statutory authority when taking a step that interferes with rights, one needs to have a statutory underpinning, but here a statutory underpinning having been found to be ineffective for whatever reason by hypothesis so that the warrant has failed, I am forced to accept that there is no affirmative authority but, equally, there is no prohibition on the use of the material so that if it is allowed to be retained in the hands of law enforcement it should be able to be used like any other material and if sought to be tendered, dealt with in the usual way. I do not think I can take it any ‑ ‑ ‑
GORDON J: Is there anything else in the Act – is there anything in the AFP Act that affects that answer?
MR DONAGHUE: Well, there may be. Certainly, there is the general empowering provisions of the usual kind to take all steps necessary in relation to functions et cetera but I do not – I will look at that overnight. If what I need is a specific authority to use unlawfully obtained material, I do not think I am likely to find it but I will check.
The submissions that I have just been making on question (4) in relation to relief are in writing directed to the submission to the relief that was actually sought, being the order for the destruction of the copies. Mr Lloyd seems to be flirting this morning with the idea that negative injunctive relief would be enough. In my submission, the principles are no different.
So, just as your Honours have indicated, well, whether the order is for return or negative injunctive relief you would need a cause of action, equally if the question is should law enforcement authorities be prevented – be required to return evidence or be prevented from using it or should the fate of that information, notwithstanding that it was unlawfully obtained, be left to be determined in accordance with Bunning v Cross.
To grant a negative injunction would pre‑empt the Bunning v Cross exercise just as much as it would be to grant a mandatory injunction because if we can never look at it, the material, no one can ever decide is it relevant to the decision to lay charges and no one could ever tender it because they would never get to the position where they would be able to know that the material was relevant and able to be used. So, in our submission, it makes, whether framed affirmatively or negatively, the principles are the same and the approach on the authorities I have identified would suggest that the matter should appropriately be left to the criminal court.
Can I say finally, your Honours, that in the event that your Honours are against us on question (1), that the warrant is invalid for some reason, but for the Commonwealth on question (4), so that relief is refused either because it is a cause of action point or because of the point I have just been developing, in our submission, the case should rest there.
For the reason that the – in circumstances where one puts the warrant to one side, the validity of section 79 would not, in our submission, be ripe for determination. We say that for a couple of reasons. First, because it has been repealed, it cannot have any effect on ongoing behaviour, and that is the basis to distinguish Croome. So in Mr Croome’s case, there was a possibility of future prosecution, but there was also the need for him to
regulate his future conduct, having regard to the Act that was on the statute book, and that was what made it ripe for determination. That is not the position here; obviously, no one can now contravene section 79.
As to past behaviour, plainly in the event that someone is charged, if that were to occur under section 79, they would have – the issue would then be ripe for determination. There would be no question as to their standing. But if that occurred, then there would be, by definition, a particularisation of the way in which section 79 was said to apply to that person, and that would then provide the answer to your Honour Justice Gageler’s question about which bits of section 79 were or were not properly to be put in play. One could tell that by reference to the way the charge had been framed.
But that may never happen and, in our submission ‑ again, the warrant having been taken out of the equation ‑ there is no general right for a person to challenge an investigation that does not involve any use of coercive powers against them but is just an investigation by police in the ordinary way, simply because there is the possibility that criminal charges might ultimately be laid.
In our submission, your Honours would be justified in taking the view that if and when charges were to be laid, then there would be a controversy ripe for determination, but not otherwise. None of that would, of course, be true, if the warrant survives attack on the grounds that have been discussed so far today because there is then the question of whether or not the validity of the section is relevant to the validity of the warrant.
GORDON J: Could I ask one other question. The Chief Justice asked you, in relation to the undertaking, I assume that that is – what is the Commonwealth’s position about that that was offered?
MR DONAGHUE: Well, the undertaking was preserving the position pending the resolution of the issue in this case. So our submission is that if your Honours were to resolve the matter either on the basis that the warrant is valid, or on the basis that even though the warrant is invalid, relief should be refused for question (4) reasons, then the undertaking would expire, and the police would be entitled to use the material, subject to any future ruling on Bunning v Cross and that would, in our submission, be the appropriate outcome. That is the outcome Caratti and that line of cases contemplate. If it please the court.
KIEFEL CJ: Yes, thank you. If there is nothing further – do you wish to add anything, Mr Lloyd, before the Court adjourns?
MR LLOYD: No, your Honour, I just wanted to clarify that what I anticipate is happening is that we will say anything further we want to say about relief on question (4).
KIEFEL CJ: Yes.
MR LLOYD: Then my friend will have an opportunity to say anything he wants to say in response to that and then we will do our reply for everything.
KIEFEL CJ: A reply for everything?
MR LLOYD: A reply in response to the entirety, your Honour. I am not going to reply now to ‑ ‑ ‑
KIEFEL CJ: The validity of the warrant more – questions (1)(a) and (b)?
MR LLOYD: Certainly.
KIEFEL CJ: Yes.
MR LLOYD: Perhaps one thing I will just say is that my friend said if we are successful on the warrant being invalid but relief is refused, I am assuming when he says that he means injunctive relief and not certiorari. He did not say anything about us not getting certiorari.
KIEFEL CJ: I am sure that is right.
MR DONAGHUE: …..
MR LLOYD: Thank you.
GAGELER J: Mr Lloyd, in relation to relief, you may wish to take into account Johns v Australian Securities Commission 178 CLR 408, in particular at pages 424 and 427.
MR LLOYD: We will do that, your Honour.
MR DONAGHUE: Your Honours, before the Court rises, there was some discussion at the Bar table about the interveners’ position on the constitutional issues and whether their presence was required. It may be that that is unknown at this stage, but in the event that ‑ ‑ ‑
KIEFEL CJ: Well, it is because, as I understand it, the plaintiffs will be pressing for us to proceed with the question of the validity of section 79.
MR DONAGHUE: I thought that was the position.
KIEFEL CJ: Until that is resolved I think they must remain.
MR DONAGHUE: If the Court pleases.
KIEFEL CJ: The Court will adjourn to 9.30 am tomorrow for pronouncement of orders, and otherwise to 10.00 am.
AT 3.39 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 NOVEMBER 2019
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