Smethurst v Commissioner of the Australian Federal Police

[2020] HCA 14

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

ANNIKA SMETHURST & ANOR  PLAINTIFFS

AND

COMMISSIONER OF POLICE & ANOR  DEFENDANTS

Smethurst v Commissioner of Police

[2020] HCA 14

Date of Hearing: 12 & 13 November 2019

Date of Judgment: 15 April 2020

S196/2019

ORDER

The questions of law stated in the special case filed on 6 September 2019 be answered as follows:

(1)Is the search warrant issued on 3 June 2019 ("the Second Warrant") invalid on the ground that:

(a)it misstates the substance of s 79(3) of the Crimes Act 1914 (Cth), as it stood on 29 April 2018?

Answer:Yes.

(b)it does not state the offence to which it relates with sufficient precision?

Answer:Yes.

(c)s 79(3) of the Crimes Act, as it stood on 29 April 2018, was invalid on the ground that it infringed the implied freedom of political communication?

Answer:Does not arise.

(2)Is the order issued on 31 May 2019 under s 3LA of the Crimes Act invalid on the ground that:

(a)at the time it was made, the Second Warrant was not in force?

(b)it was made in aid of a different warrant, namely the warrant issued on 31 May 2019 ("the First Warrant")?

(c)it did not specify the information or assistance required to be provided by the first plaintiff, with sufficient precision, or at all?

(d)it did not specify the computer or data storage device to which it related, with sufficient precision, or at all?

Answer:Unnecessary to answer.

(3)Was s 79(3) of the Crimes Act, as it stood on 29 April 2018, invalid on the ground that it infringed the implied freedom of political communication?

Answer:Unnecessary to answer.

(4)If the answer to any or all of questions (1)–(3) is "yes", what relief, if any, should issue?

Answer:There should be an order for certiorari quashing the search warrant issued on 3 June 2019.

(5)Who should pay the costs of and incidental to this special case?

Answer:The first defendant should pay the plaintiffs' costs of the special case.

Representation

S B Lloyd SC with P D Herzfeld and B Hancock for the plaintiffs (instructed by Ashurst Australia)

S P Donaghue QC, Solicitor-General of the Commonwealth, with C L Lenehan SC and S Zeleznikow for the first defendant and for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

C D Bleby SC, Solicitor-General for the State of South Australia, with K M Scott for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

K A Stern SC with D P Hume for the Australian Human Rights Commission, appearing as amicus curiae (instructed by Australian Human Rights Commission)

Submitting appearance for the second defendant

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Smethurst v Commissioner of Police

Police – Search warrants – Validity of warrant – Where police searched premises in reliance on warrant – Where police retained material copied from first plaintiff's mobile phone in reliance on warrant – Where warrant relied upon reasonable grounds for suspecting commission of Commonwealth offence – Where warrant purported to set out offence against s 79(3) of Crimes Act 1914 (Cth) – Whether warrant misstated substance of s 79(3) of Crimes Act – Whether warrant failed to state offence to which it related with sufficient precision.

Injunctions – Mandatory injunction – Principles applicable – Where plaintiffs sought mandatory injunction requiring destruction or delivery up of material obtained under invalid warrant – Where plaintiffs sought injunction restraining police from making information available to prosecuting authorities – Whether statutory basis for injunction – Whether plaintiffs identified legal right to support injunction in auxiliary jurisdiction – Whether consequences of trespass provide basis for injunction – Whether s 75(v) of Constitution provides basis for injunction – Whether damages inadequate – Whether injunctive relief should be refused on discretionary grounds.

Words and phrases – "adequacy of damages", "auxiliary jurisdiction", "basis for injunction", "certiorari", "computer or data storage device", "constitutional injunction", "constitutional remedies", "constitutional writs", "description of the offence", "discretionary considerations", "entry, search and seizure", "equity", "evidential material", "injunction", "injunctive relief", "juridical basis", "legal right or interest", "mandatory injunction", "misstatement", "mobile phone", "nature of the offence", "official secrets", "privacy", "relief", "remedy", "right to privacy", "search warrants", "statement of offence", "substance of the offence", "sufficient interest", "sufficient particularity", "sufficient precision", "trespass".

Constitution, s 75(v).

Australian Federal Police Act 1979 (Cth), s 8.

Crimes Act 1914 (Cth), Pts IAA, VII; ss 3C, 3E, 3F, 3H, 3LA, 3ZQU, 79(3).

Judiciary Act 1903 (Cth), s 32.

1. KIEFEL CJ, BELL AND KEANE JJ.   The first plaintiff, Ms Annika Smethurst, is a journalist. She is employed by the second plaintiff, Nationwide News Pty Ltd, which is the publisher of the Sunday Telegraph newspaper and a website. On 29 April 2018, the second plaintiff published articles in its newspaper and on its website of which the first plaintiff was the author. The three articles published in the newspaper were entitled: "We don't want Big Brother watching"; "Secret plan to spy on Aussies"; and "Spies told just keep looking elsewhere". Those articles published on the website were entitled: "Spying shock: Shades of Big Brother as cyber-security vision comes to light" and "We Don't Want Big Brother Watching". In general terms the articles informed the reader that amendments which were proposed to existing legislation would extend the powers of the Australian Signals Directorate ("the ASD") so as to enable it to covertly access data respecting not only foreigners but also Australian citizens. The articles contained expressions of concern and alarm.

2. Two of the articles contained an image of the top part of a document entitled "MINISTERIAL SUBMISSION". Its subject matter was stated to be "ASD AS A STATUTORY AGENCY – FURTHER AMENDMENTS TO THE INTELLIGENCE SERVICES ACT 2001". The document bore the markings "SECRET AUSTEO COVERING TOP SECRET COMINT AUSTEO".

   The Second Warrant and the search

3. Sometime after 30 April 2018 the Australian Federal Police ("the AFP") commenced an investigation into the publication of the articles. On 31 May 2019, in the course of that investigation, a member of the AFP obtained a warrant from a magistrate ("the First Warrant") to enter and search the residential premises occupied by the first plaintiff and to search her motor vehicle. On the same day the magistrate made an order under s 3LA of the Crimes Act 1914 (Cth) ("the s 3LA Order") directed to the first plaintiff, which required her to provide any reasonable and necessary information and assistance to enable a constable to access, copy and convert data held on a computer or data storage device into documentary form.

4. Due to concerns held by the member of the AFP who was named as the executing officer in the First Warrant about whether it authorised a search of the specified vehicle if it was not at the first plaintiff's premises, further separate warrants were obtained on 3 June 2019. One warrant ("the Second Warrant") was directed to the premises and the other to the vehicle. The warrant respecting the vehicle has never been executed.

5. The Second Warrant was in the same terms as the First Warrant so far as it concerned the search of the first plaintiff's residence. It was six pages in length. It stated that the magistrate was satisfied by information on oath that there were reasonable grounds for suspecting that there was, or would within the next 48 hours be, at those premises "evidential material, as defined in the Crimes Act" which satisfied all of the three conditions which were set out in the warrant.

6. The first condition was said to relate to the kinds of things that were the subject of the Second Warrant. It was stated broadly and included any notes, diaries, correspondence, emails and other forms of electronic messaging, minutes, reports, briefing documents, assessments, graphics, sketches or photographs, story pitch, planning logs, broadcast and online schedules, story boards, website content and USBs. The first condition also specified a document having the same title as the document the head of which appeared in two of the articles. It was described as a classified ASD document. The warrant was said to extend to both originals and copies of these things and to anything stored on a computer storage device or other storage device, together with any manual, instruction or password that assists to gain access to, interpret or decode any of those things.

7. The second condition referred to the persons or entities to whom those things might relate. They included the first plaintiff, the Sunday Telegraph, "News Corp", the ASD, the Department of Home Affairs, the Department of Defence, a named individual and the webpage on which one of the two articles mentioned above was published.

8. The third condition commenced by explaining the purpose of seeking the things relating to the persons identified. It was said to be "as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth". This statement then followed:

   "On the 29 April 2018, Annika Smethurst and the Sunday Telegraph communicated a document or article to a person, that was not in the interest of the Commonwealth, and permitted that person to have access to the document, contrary to section 79(3) of the Crimes Act 1914, Official Secrets. This offence was punishable by 2 years imprisonment."

9. On 4 June 2019, members of the AFP searched the first plaintiff's residence relying upon the authority of the Second Warrant. When the AFP located the first plaintiff's mobile telephone, the first plaintiff was required to provide its passcode to enable access to information stored on it. The data from the mobile phone was copied onto the AFP's forensic laptop computer and the mobile phone was returned to the first plaintiff. Keyword searches were undertaken by the AFP on the copied data, intended to identify documents that fell within the conditions of the Second Warrant, and those documents were reviewed by the executing officer. At the completion of this process, the documents identified as falling within the conditions of the Second Warrant were copied onto a USB stick which the AFP officers had brought with them, and the USB stick was taken from the premises. The information taken from the mobile phone was deleted from the AFP laptop before it was removed from the premises. No other property was taken from the premises. The first defendant, the Commissioner of Police, has undertaken that the AFP will not access or use any of the material obtained during the execution of the Second Warrant until the final determination of these proceedings.

10. No criminal charges have been laid arising out of the AFP's investigation. It is not disputed that the AFP officers who conducted the search and required the first plaintiff to provide her mobile phone passcode believed that their actions were authorised by the Second Warrant and the s 3LA Order. If the Second Warrant is invalid for any of the reasons which are the subject of the first question of law in this special case it would follow, contrary to that belief, that the search conducted of the first plaintiff's premises was not authorised by law. The question which would then arise is what are the consequences of invalidity and more particularly what is to be done with the information now held by the AFP as a result of unlawful acts.

    The Crimes Act provisions

    The warrant provisions

11. Section 3E of the Crimes Act appears in Div 2 ("Search warrants") of Pt IAA of that Act, which is entitled "Search, information gathering, arrest and related powers (other than powers under delayed notification search warrants)". It provides the basis upon which search warrants may be issued. Section 3E(1) states in relevant part:

    "An issuing officer^[[1]] may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is ... any evidential material at the premises."

    "Evidential material" is defined to include "a thing relevant to an indictable offence ... including such a thing in electronic form"[2]. A "thing relevant to an indictable [Commonwealth] offence" is defined to include "anything with respect to which an indictable offence against any law of the Commonwealth ... has been committed or is suspected, on reasonable grounds, to have been committed"; or "anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence"[3].

    [1]A term which includes a magistrate: see Crimes Act 1914 (Cth), s 3C(1).

    [2]Crimes Act 1914 (Cth), s 3C(1).

    [3]Crimes Act 1914 (Cth), s 3(1).

12. Section 3E(5) relevantly provides:

    "If an issuing officer issues a warrant, the officer is to state in the warrant:

    (a)the offence to which the warrant relates; and

    (b)a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

    (c)the kinds of evidential material that are to be searched for under the warrant".

    The principal issue concerning these requirements is whether the Second Warrant satisfies s 3E(5)(a).

13. Section 3F(1) relevantly provides that a warrant that is in force in relation to premises authorises the executing officer or a constable assisting to enter the warrant premises[4] and:

    "(c)to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises".

    [4]Crimes Act 1914 (Cth), s 3F(1)(a).

14. A copy of the warrant must be made available to the occupier of the premises if they are present when the warrant is being executed[5].

    [5]Crimes Act 1914 (Cth), s 3H(1).

15. Section 3LA(2) provides that a magistrate may make an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to access data on a computer or data storage device that is on warrant premises if the magistrate is satisfied of certain matters.

    The offence provisions

16. Section 79(3) of the Crimes Act, which was referred to in the third condition of the Second Warrant, appeared in Pt VII of that Act, which was headed "Official secrets and unlawful soundings". Parts VI and VII of the Crimes Act, including s 79, were repealed on 29 December 2018 and replaced with provisions of the Criminal Code (Cth)[6] which are in different terms.

    [6]National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth).

17. Section 79(3) in relevant part was in these terms:

    "If a person communicates a prescribed … document or article, or prescribed information, to a person, other than:

    (a)a person to whom he or she is authorized to communicate it; or

    (b)a person to whom it is, in the interest of the Commonwealth or a part of the Queen's dominions, his or her duty to communicate it;

    or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he or she commits an offence.

    Penalty: Imprisonment for 2 years."

18. To ascertain what is a prescribed document or article or prescribed information it is necessary to refer to s 79(1). Consideration later in these reasons of the operation of s 79(1), in light of its importance to s 79(3), requires reference to most of its text:

    "For the purposes of this section, a … document, or article is a prescribed … document or article in relation to a person, and information is prescribed information in relation to a person, if the person has it in his or her possession or control and:

    (a)it has been made or obtained in contravention of this Part or in contravention of section 91.1 of the Criminal Code;

    (b)it has been entrusted to the person by a Commonwealth officer or a person holding office under the Queen or he or she has made or obtained it owing to his or her position as a person:

    (i)who is or has been a Commonwealth officer;

    (ii)who holds or has held office under the Queen;

    (iii)who holds or has held a contract made on behalf of the Queen or the Commonwealth;

    (iv)who is or has been employed by or under a person to whom a preceding subparagraph applies; or

    (v)acting with the permission of a Minister;

    and, by reason of its nature or the circumstances under which it was entrusted to him or her or it was made or obtained by him or her or for any other reason, it is his or her duty to treat it as secret".

    The special case

19. The plaintiffs filed an amended application for a constitutional or other writ in which they sought orders for: writs of certiorari quashing the Second Warrant and the s 3LA Order; a declaration that s 79(3), as it stood at 29 April 2018, was invalid; writs of mandamus or injunctions compelling the delivery up or the destruction of the material seized pursuant to the Second Warrant or the s 3LA Order; and writs of prohibition or injunctions restraining the first defendant from providing that material to prosecuting authorities.

20. The parties subsequently agreed in stating questions of law for the opinion of the Full Court of this Court in a special case. Bell J ordered that those questions be referred for the consideration of the Full Court. The questions are:

    "(1)Is the Second Warrant invalid on the ground that:

    (a)it misstates the substance of s 79(3) of the Crimes Act, as it stood on 29 April 2018?

    (b)it does not state the offence to which it relates with sufficient precision?

    (c)s 79(3) of the Crimes Act, as it stood on 29 April 2018, was invalid on the ground that it infringed the implied freedom of political communication?

    (2)Is the s 3LA Order invalid on the ground that:

    (a)at the time it was made, the Second Warrant was not in force?

    (b)it was made in aid of a different warrant, namely the First Warrant?

    (c)it did not specify the information or assistance required to be provided by the First Plaintiff, with sufficient precision, or at all?

    (d)it did not specify the computer or data storage device to which it related, with sufficient precision, or at all?

    (3)Was s 79(3) of the Crimes Act, as it stood on 29 April 2018, invalid on the ground that it infringed the implied freedom of political communication?

    (4)If the answer to any or all of questions (1)–(3) is 'yes', what relief, if any, should issue?

    (5)Who should pay the costs of and incidental to this Special Case?"

21. Questions 1(a) and 1(b) should be answered in the affirmative, for the reasons which follow. Not only did the Second Warrant not satisfy the statutory condition that it state the offence to which it relates, it substantially misstated an offence said to arise under s 79(3) of the Crimes Act. It is not necessary to answer the further questions save as to the relief to be given (Question 4) and costs (Question 5).

    A statement of the offence

22. The requirement that the offence to which a warrant relates be stated in the warrant has its origins in the common law's refusal to countenance the issue of general warrants[7] and its strictly confining any exception to the principle that a person's home is inviolable[8]. General warrants, as their name implies, contain no specification of the object of the search and purport to confer a free‑ranging power of search. They were described in Wilkes v Wood[9] as a discretionary power given to messengers to search "wherever their suspicions may chance to fall" and as "totally subversive of the liberty of the subject". They were infamously used for the purposes of controlling the writing and printing of seditious and radical political works[10].

    [7]Wilkes v Wood (1763) Lofft 1 [98 ER 489]; Money v Leach (1765) 1 Black W 555 [96 ER 320]; Entick v Carrington (1765) 2 Wils KB 275 [95 ER 807].

    [8]New South Wales v Corbett (2007) 230 CLR 606 at 632 [104].

    [9](1763) Lofft 1 at 18 [98 ER 489 at 498].

    [10]New South Wales v Corbett (2007) 230 CLR 606 at 629 [93], referring to Tronc, Crawford and Smith, Search and Seizure in Australia and New Zealand (1996) at 55.

1. The power to search has always been regarded as an exceptional power, to be exercised only under certain justifying conditions[11]. One essential condition, found in statutes authorising the issue of warrants for search and seizure, both Commonwealth and State and Territory, is that the object of the search be specified by reference to a particular offence[12].

   [11]Feldman, The Law Relating to Entry, Search and Seizure (1986) at [1.03].

   [12]General warrants are permitted in South Australia: see Summary Offences Act 1953 (SA), s 67. General warrants are permitted in Tasmania with respect to a search for stolen property: see Police Offences Act 1935 (Tas), s 60; but otherwise a search warrant is required to state the offence to which it relates: see Search Warrants Act 1997 (Tas), s 5(2)(a).

2. In George v Rockett[13], the Court observed that in prescribing conditions governing the issue of search warrants the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasion of their privacy[14]. A person's interest in privacy is recognised in all modern bills of rights and it has achieved a status in international human rights law[15].

   [13](1990) 170 CLR 104 at 110.

   [14]See also New South Wales v Corbett (2007) 230 CLR 606 at 630 [96].

   [15]Feldman, The Law Relating to Entry, Search and Seizure (1986) at [1.01].

3. It may be accepted that the balance struck by the legislature to a greater extent favours the public interest in the investigation and prosecution of crimes. Nevertheless it remains a concern of the legislature, in enacting provisions authorising warrants for search and seizure, to provide a measure of protection to persons affected by a warrant. It does so in large part by ensuring that the object of the warrant is identified by reference to a particular offence and that the limits of the authority to search may thereby be discerned. The courts' insistence on strict compliance with the statutory conditions for a warrant gives effect to this legislative purpose[16].

   [16]George v Rockett (1990) 170 CLR 104 at 110-111; New South Wales v Corbett (2007) 230 CLR 606 at 628 [88].

4. Provisions of the kind mentioned are found in Pt IAA of the Crimes Act, in its requirements that: there be reasonable grounds for suspecting that there is or will be on the premises to be searched material relevant to an offence (s 3E(1) read with s 3C(1)); and the warrant which issues under s 3E(1) state in it the particular offence to which it relates (s 3E(5)(a)). These conditions need only be shortly stated to appreciate the centrality of the identification of the offence in question to the scheme of authorisation of warrants. It is not disputed that unless these conditions are met a warrant purporting to be issued under s 3E(1) is not authorised and is not valid.

5. The protective purpose to which these provisions are directed is achieved by ensuring that each of the issuing officer, the officer executing the warrant and the persons affected by the warrant understand what is the object of the search and the limits to it. The issuing officer obviously needs to appreciate the boundaries of the authorisation which is to be given. The executing officer and those affected by the warrant must likewise understand the object of the search and comprehend the limits to the scope of the search which has been authorised[17]. In each case this can only be achieved by the nature of the offence the object of the warrant being stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand[18].

   [17]George v Rockett (1990) 170 CLR 104 at 118; New South Wales v Corbett (2007) 230 CLR 606 at 632 [104]; Williams v Keelty (2001) 111 FCR 175 at 206 [140].

   [18]New South Wales v Corbett (2007) 230 CLR 606 at 632-633 [105]-[106].

6. It is not necessary that the warrant state the offence with the same precision and specificity as is required for an indictment. The purpose of a warrant is not to define the issues for trial[19]. The power to issue a search warrant is given in aid of criminal investigation as well as finding evidence which will be admissible at trial[20]. What emerges from the cases is a test of sufficiency to indicate the areas of the search. The test of sufficiency with respect to the statement of offence reflects the purpose of the condition, that persons executing and affected by the warrant understand what is being sought. If the object of the search is not identified the warrant becomes a general warrant.

   [19]New South Wales v Corbett (2007) 230 CLR 606 at 629-630 [95], [97]; Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 533.

   [20]George v Rockett (1990) 170 CLR 104 at 119.

7. It follows logically from the underlying rationale of the condition that the offence be stated that the test of sufficient particularity is an objective one, which has regard to the content of the warrant. It can be no answer to a challenge to the validity of a warrant on the ground that it fails clearly to state the nature of the offence in question to say that the persons whose premises are to be searched have some ancillary information as to the offence to which the warrant is intended to relate[21].

   [21]Wright v Queensland Police Service [2002] 2 Qd R 667 at 676 [31]-[32].

8. What is sufficient to be conveyed about the offence in question in a given case may vary with the nature of the offence[22]. Some offences may be shortly described. That in question in New South Wales v Corbett[23] furnishes an example. The statement of the offence of "Possession of Firearm, Firearms Act No 25/1989 Sect 5(a)" was held sufficiently to convey the nature of the offence in question for the purposes of s 5(1)(b) of the Search Warrants Act 1985 (NSW), which provided for the making of applications for a search warrant where there were reasonable grounds for believing that there was in or on any premises "a thing connected with a particular firearms offence". While the Court held that the transitional provisions in the successor Act to the repealed 1989 Act had the effect that the reference to s 5(a) of the repealed Act was to be read as a reference to the relevant provision of the successor Act (which was in materially identical terms), a majority also found that, in any event, the reference to the repealed Act was "mere surplusage" which did not detract from the statement of the nature of the offence in the warrant[24]. On the other hand, when a statute provides for the commission of a somewhat indeterminate number of offences, a general reference to a section may not be sufficient[25]. No verbal formula is possible, rather in each case it is necessary to apply the principle that the warrant should describe the nature of the offence so as to indicate the bounds of the search, and to assess the sufficiency of what is provided from the point of view of those reading it.

   [22]Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 543.

   [23](2007) 230 CLR 606.

   [24]New South Wales v Corbett (2007) 230 CLR 606 at 607 [1], 608 [3], 633 [107].

   [25]See eg Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151.

   The statement in the Second Warrant

9. Ambiguity is evident upon a first reading of the statement in the third condition of the Second Warrant. It is not at all clear whether it is the document or article referred to which was, in some unspecified way, "not in the interest of the Commonwealth", or whether it was the communication of that document or article to a person that was contrary to the Commonwealth's interest.

10. It is not clear to whom the document or article was said to have been communicated. In their submissions the first defendant and the Attorney-General of the Commonwealth intervening (who together, for convenience, shall be referred to as "the Commonwealth") said that the reference "communicated a document or article to a person" was a reference to the publication of the articles by the second plaintiff. But the word "article" as it appears in s 79(3) means no more than a thing the object of a search; it is not referable to an article being something written by a journalist or other commentator and published in the media. The reference in the statement of offence in the third condition to the communication of a thing to "a person" is not apt to convey the meaning suggested by the Commonwealth of any reader of the publication. What is tolerably clear from the statement of offence in the warrant is that an element, if not the critical element, to be considered in connection with the search to be undertaken is whether a document, an article or information is "not in the interest of the Commonwealth".

11. A consideration of the terms of s 79(3) read with s 79(1) reveals that ambiguity is the least of the problems with respect to the statement of offence in the Second Warrant. The Second Warrant not only fails to identify any offence arising under s 79(3), it substantially misstates the nature of an offence arising under it.

12. Section 79(3) does not contain the words "not in the interest of the Commonwealth". It does not bespeak any offence which involves a document or article or a communication of such which is "not in the interest of the Commonwealth". In general terms the circumstances giving rise to an offence under s 79(3) are the communication of a "prescribed" document or article or "prescribed" information. Two exceptions are stated with respect to the conduct giving rise to the offence. The exception that is relevant for present purposes is that stated in s 79(3)(b): where a person who communicates a prescribed document or article or prescribed information is under a duty to communicate it, because it is in the interest of the Commonwealth to do so, no offence is committed. The statement of offence in the Second Warrant has succeeded in stating as a key element of the offence in question an aspect of an exception to the offence and, in the process, has misstated the operation of s 79(3).

13. The other major problem with the Second Warrant is that s 79(3) does not, as the warrant asserts, refer to documents, articles or information more generally. It refers only to "prescribed" documents, articles or information. Section 79(3) appears in the suite of offences provided for in s 79(2) to (6) inclusive. Each of them, in general terms, concerns the communication, receipt or retention of, or failure to abide by a direction respecting, a prescribed document or article or prescribed information. The offence in s 79(3) does not hinge on the interests of the Commonwealth, as the statement in the warrant suggests. It hinges upon the documents, articles or information being prescribed within the meaning of s 79(1).

14. There are a number of circumstances which may result in a document, an article or information being prescribed. It needs also to be recalled that a document, an article or information is not prescribed generally, as for example it might be if it simply referred to information which was classified as secret. In the terms of s 79(1), it is prescribed in relation to a particular person.

15. Section 79(1) has been set out earlier in these reasons. In summary, s 79(1)(a) provides that a document, an article or information is prescribed if it has been made or obtained in contravention of Pt VII of the Crimes Act or in contravention of s 91.1 of the Criminal Code (which deals with defence secrets). Section 79(1)(b) relevantly requires, for the document, article or information to be prescribed, that it has been entrusted to the person by a Commonwealth officer, or that the person has made or obtained it owing to their position as a Commonwealth officer or through some other specified relationship with the Commonwealth. The circumstances in which it was entrusted to, or made or obtained by, the person must be such as to create a duty to treat it as secret. A document, an article or information is prescribed under s 79(1)(c) if it relates to a prohibited place or anything in a prohibited place and the person knows, or ought to know, that it should not be communicated to unauthorised persons.

16. It may be observed from a closer reading of s 79(1) that a document, an article or information may be prescribed in relation to a person, thus opening the possibility of an offence under the following sub-sections of s 79 in a range of different circumstances. Moreover, there may be a combination of factors which result in the same document, article or information being prescribed in relation to more than one person. By way of example, a document, an article or information may be prescribed where person A has obtained it by reason of their position and gives it to person B. In addition to it being prescribed in relation to person A, it may be prescribed in relation to person B because it has been obtained (by person A) in contravention of Pt VII and is in person B's possession.

17. It is only where a document, an article or information is prescribed in relation to a person and is communicated to another, outside of the limited exceptions, that an offence under s 79(3) can be said to arise. And as the summary of s 79(1) and the example given above suggest, there are many possible scenarios and combinations which can arise under s 79(1) by which a document, an article or information comes to be prescribed. An offence under s 79(3) is not one which may be stated as pithily as that in question in New South Wales v Corbett[26], referred to above. More to the point is the type of provision discussed in Australian Broadcasting Corporation v Cloran[27], which allows for the possibility of a number of offences. Such a provision will require more by way of description of the particular offence and how it is said to arise.

    [26](2007) 230 CLR 606.

    [27](1984) 4 FCR 151 at 154.

18. In the course of argument there was some discussion as to what would or would not satisfy the requirements of s 3E(5)(a) and what level of specificity of the offence or the offending conduct needs to be stated in a search warrant. Such considerations do not arise in a case such as this, where the particular offence, one of many possible offences, is not identified at all.

19. The number of ways in which an offence under s 79(3) may arise is one reason why the Commonwealth's submission, that what was provided in the third condition of the Second Warrant was sufficient, cannot be accepted. The Commonwealth submitted that no more was necessary than to provide a reference to the plaintiffs to s 79(3) of the Crimes Act and to "Official secrets", which was the heading to s 79 and, it will be recalled, part of the heading to Pt VII. If more was necessary, the Commonwealth submitted, the reference to the articles published by the second plaintiff and their date and the matters set out with respect to the first and second conditions, including the ASD document identified in the first condition, provided sufficient guidance for the search.

20. It may be accepted that regard may be had to other parts of the warrant to assist in an understanding of what is said in the third condition[28]. But it remains necessary that what is thereby conveyed to the ordinary reader be sufficiently specific to identify the nature of the particular offence. As Hely J said in Williams v Keelty[29], the requirement that the offence to which the warrant relates be stated in the warrant is not satisfied by the provision of information falling short of such a statement but which might enable a person reading the warrant to deduce or infer what offence is intended. Nothing meaningful is conveyed about the particular offence which was intended as the object of the Second Warrant.

    [28]Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 at 154; Brewer v Castles (1984) 1 FCR 55 at 62.

    [29](2001) 111 FCR 175 at 206 [140].

21. Not only did the Second Warrant not state the nature of the offence to which the Second Warrant was said to relate, it succeeded in misstating it and thereby compounded the problem. Contrary to the submissions of the Commonwealth, it is not possible to ignore the words "that was not in the interest of the Commonwealth" and treat them as mere surplusage. In the way the warrant was drawn they gave the impression of being the key to what was said to be the offence the object of the warrant. Those reading the warrant were not only uninformed about any offence under s 79(3), they were misinformed that the offence stated concerned the provision of a document to another person which was somehow said not to be in the interest of the Commonwealth. It is not immediately apparent how the first plaintiff and the executing officer were to understand the boundaries of the search to be drawn by reference to this criterion. It made the authorisation for the search appear impossibly wide.

22. It follows that the condition in s 3E(5)(a) of the Crimes Act was not complied with, with the result that the Second Warrant was invalid. The entry, search and seizure which occurred on 4 June 2019 were not authorised by that Act and were therefore unlawful.

    Relief

23. As the Second Warrant is invalid it is liable to be quashed by an order for certiorari. The question then is whether the plaintiffs are entitled to the injunctive relief that they seek.

24. It is convenient at the outset to record what the plaintiffs do not seek and the limited bases upon which their claims for injunctions are made. The plaintiffs eschew any claim for damages for trespass or other intentional tort. The relief which they seek is either a mandatory injunction requiring the destruction or delivery up of the information taken from the first plaintiff's mobile phone during the search and retained by the AFP, or an injunction restraining the first defendant from making that information available to the prosecuting authority.

25. The plaintiffs do not seek an injunction in the exercise of the Court's exclusive equitable jurisdiction, which is to say an injunction in aid of an equitable right. They do not claim that the information on the AFP's USB stick which was taken from the first plaintiff's premises is confidential to them and thus of a kind which would found the grant of an injunction in that jurisdiction to "restrain the publication of confidential information improperly or surreptitiously obtained"[30]. The information, they concede, could only be described as confidential in the sense that it is not readily accessible to anyone but the person who controls access to the phone. The plaintiffs frankly accept that they may have difficulty establishing a breach of confidential information without prejudicing themselves with respect to any possible criminal proceedings.

    [30]Lord Ashburton v Pape [1913] 2 Ch 469 at 475.

26. The plaintiffs' principal claim to an injunction is based upon the Court's auxiliary jurisdiction in equity. This would ordinarily require that it be granted in aid of some legal right or interest or title to property. The plaintiffs make no claim to the property in the AFP's USB stick. They do not claim a right to privacy which is actionable for breach. They do not ask this Court to continue the debate, left open by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[31], as to whether the courts should recognise such a tort. The plaintiffs nevertheless contend that an injunction should be granted to reverse or protect them from the effects of the trespass committed as a result of the Second Warrant being invalid. Those effects are that the information may be used to further the investigation as to whether offences against s 79(3) of the Crimes Act have been committed and, if charges are laid, as evidence of the commission of those offences.

    [31](2001) 208 CLR 199 at 258 [132].

1. The plaintiffs' alternative argument relies upon the scheme of Pt IAA of the Crimes Act respecting search warrants and in particular the provisions of s 3ZQU. It is contended that a prohibition is to be found as implied in the provisions of Pt IAA, and that this has the effect that the AFP cannot disclose the information obtained and provides the basis for a negative injunction. Such an injunction may be sought by a person with a sufficient interest in the enforcement of the implied prohibition.

2. It is convenient first to consider the argument based upon Pt IAA.

   A statutory basis for an injunction?

3. The plaintiffs' argument begins with the propositions that when a statute confers a power to obtain information for a purpose, it impliedly prohibits the disclosure or use of that information for any other purpose[32] and the prohibition may be enforced by an injunction[33]. Johns v Australian Securities Commission[34] most clearly is authority for these propositions.

   [32]Citing Johns v Australian Securities Commission (1993) 178 CLR 408 at 424; Katsuno v The Queen (1999) 199 CLR 40 at 57 [24].

   [33]Johnsv Australian Securities Commission (1993) 178 CLR 408 at 427.

   [34](1993) 178 CLR 408.

4. The provisions of Pt IAA of the Crimes Act, the plaintiffs submit, form something of a code respecting search warrants. Nevertheless, it is s 3ZQU which is central to the plaintiffs' argument. Section 3ZQU appears in Div 4C of Pt IAA ("Using, sharing and returning things seized and documents produced") and is entitled "Purposes for which things and documents may be used and shared". Section 3ZQU(1) relevantly commences:

   "A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part ... for the purpose of any or all of the following if it is necessary to do so for that purpose".

   There are then listed, in paras (a) to (l), various purposes for which a constable or a Commonwealth officer may use things seized. They begin with "(a) preventing, investigating or prosecuting an offence", and conclude with "(l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979". Sub‑sections (2) to (5) of s 3ZQU include a power to use things seized for the purpose of State and Territory laws and to make the things available to State and Territory law enforcement agencies. Section 3ZQU(4) provides that:

   "To avoid doubt, this section does not limit any other law of the Commonwealth that:

   (a)requires or authorises the use of a document or other thing; or

   (b)requires or authorises the making available … of a document or other thing."

5. The plaintiffs point out that the Crimes Act confers a power to obtain material pursuant to a warrant and that s 3ZQU sets out the purposes for which that material may be used. In reliance on Johns, they submit that Pt IAA therefore impliedly prohibits the use of such information for any purposes other than those which the Act authorises.

6. Johns concerned the exercise by the Australian Securities Commission ("the ASC") of a power to require certain persons to appear before it and be examined on oath. Another provision of the statute in question obliged the ASC to take all reasonable measures to protect information obtained in the exercise of its powers from unauthorised use or disclosure, but authorised the disclosure of such information where it would enable or assist the government or an agency of a State or Territory to perform a function or exercise a power. A delegate of the ASC authorised the disclosure of transcripts of an examination conducted by the ASC to a State Royal Commission.

7. Brennan J explained[35] that a statute which confers a power to obtain information defines, expressly or impliedly, the purpose for which the information obtained can be used. The person obtaining information in the exercise of such a statutory power is therefore under a duty, closely analogous to that imposed by equity, to treat the information obtained as confidential. The information obtained in exercise of the powers conferred by the statute may be used or disclosed for any purpose specified in the statute, but for no other purpose.

   [35]Johns v Australian Securities Commission (1993) 178 CLR 408 at 424-425.

8. The other case relied on by the plaintiffs, Katsuno v The Queen[36], concerned provisions of the Juries Act 1967 (Vic) which authorised the provision to the Chief Commissioner of Police of the names of potential jurors in order that the Chief Commissioner could make inquiries as to whether any person was disqualified from serving as a juror and report the results to the sheriff. Other provisions emphasised the confidential nature of information obtained in the exercise of powers and under the Act. The Chief Commissioner had a practice of providing details of convictions and other information to the Director of Public Prosecutions in relation to those persons named on the panel from which a jury was to be struck. The practice was held to be unlawful. The scheme of the Act was held to give rise to a negative implication that no one but the sheriff was to receive the information obtained by the Chief Commissioner as a result of the inquiries made pursuant to the Act. Any other provision or use of the information was impliedly prohibited.

   [36](1999) 199 CLR 40.

9. The decisions in Johns and Katsuno have application where there arises a question of construction as to whether a statute authorises the use to which information has been or is intended to be put. The plaintiffs accept that the decisions stand for the proposition that information obtained in the exercise of a statutory power for one purpose cannot be used for another, unauthorised purpose. No such question of construction arises in this case. The use to which the information taken from the first plaintiff's mobile phone is intended to be put is the further investigation of an offence under s 79(3). That use is expressly authorised by s 3ZQU(1)(a).

10. The real issue raised by the plaintiffs concerns the source of authority to use the information where s 3ZQU(1) does not apply. The plaintiffs themselves point out that the sub‑section specifies the uses to which material "seized under this Part" may be put. The reference to material "seized under this Part" is to material the seizure of which was actually authorised by the Part. It would follow that neither s 3ZQU(1) nor any other provision of Pt IAA of the Crimes Act authorises the use of material seized pursuant to an invalid warrant.

11. It may be accepted that the words "seized under this Part" refer only to things that are taken lawfully in accordance with Pt IAA. Plaintiff S157/2002 v The Commonwealth[37] concerned s 474(2) of the Migration Act 1958 (Cth), which defined a privative clause decision as a decision "of an administrative character made, proposed to be made, or required to be made … under this Act" other than decisions of certain specified kinds. Gaudron, McHugh, Gummow, Kirby and Hayne JJ explained that when regard was had to the phrase "under this Act", the words of the sub-section in question were not apt to refer to decisions purportedly made under the statute[38]. To be a decision made "under" the Act required that it be made under the authority of the statute.

    [37](2003) 211 CLR 476.

    [38]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 505-506 [75]; see also Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635.

12. It may therefore be concluded that s 3ZQU(1) does not authorise the use of the information by the AFP for the purpose of an investigation, since the authority it gives is referable only to things seized under a warrant which satisfies the conditions of Pt IAA. But so to conclude does not foreclose the possibility that there is another, more general, source of power for that use.

13. Section 3ZQU is not directed to the circumstance of an invalid warrant. The section was inserted in the Crimes Act to meet concerns about uncertainties as to the uses for which seized material might be authorised. The Replacement Explanatory Memorandum to the Bill which inserted it[39] explained[40]:

    "The current provisions in Part IAA do not specify how things seized under Part IAA can be used. As a result, there is uncertainty as to whether law enforcement agencies can use seized material for purposes other than those for which it was seized."

    [39]Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009.

    [40]Australia, Senate, Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009, Replacement Explanatory Memorandum at 71.

14. The Replacement Explanatory Memorandum did not deny that there may be existing sources of authorisation for such uses. It said that its provisions[41]:

    "do not presuppose that these uses are not available currently, but puts the issue beyond doubt by providing a direct legislative basis [for the uses specified in s 3ZQU(1)]".

    [41]Australia, Senate, Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009, Replacement Explanatory Memorandum at 73.

15. Section 3ZQU(4), it will be recalled, provides that s 3ZQU does not affect the operation of any other Commonwealth law which authorises the use of a document or other thing. Section 3ZQU(1)(l) itself points to s 8 of the Australian Federal Police Act 1979 (Cth) as a source of the powers of the AFP.

16. Section 8 of the Australian Federal Police Act specifies the functions of the AFP. They include the provision of police services in relation to the laws of the Commonwealth[42]. "Police services" is defined[43] to include "services by way of the prevention of crime and the protection of persons from injury or death … whether arising from criminal acts or otherwise". The functions of the AFP also include "to do anything incidental or conducive to the performance of the … functions"[44]. The description of "police services" has been held to encompass associated activities such as the investigation of complaints about the commission of crimes with a view to the identification of offenders[45].

    [42]Australian Federal Police Act 1979 (Cth), s 8(1)(b)(i).

    [43]Australian Federal Police Act 1979 (Cth), s 4(1).

    [44]Australian Federal Police Act 1979 (Cth), s 8(1)(c).

    [45]See Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308 at 319 [31]; O'Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688 at [5].

17. The general power given by s 8 is not expressed to be subject to a restriction respecting the use of documents or information and the manner in which they were obtained. Any such restrictions are to be found elsewhere. But neither the common law nor statute law presumes that information unlawfully obtained may not be used in the investigation or prosecution of an offence. Bunning v Cross[46] held that evidence is not on that account alone excluded as admissible evidence. The public interest in bringing persons to conviction is to be weighed against any perception that the courts may be seen to approve unlawful conduct[47]. The discretionary process by which this is achieved is now governed by s 138 of the Evidence Act 1995 (Cth). It would be to give decisive weight to the fact that the information was unlawfully obtained, contrary to the rationale of Bunning v Cross and s 138 of the Evidence Act, if the AFP was not able to retain the information for so long as it is required for the purposes of investigating and, if appropriate, prosecuting an offence or offences against Commonwealth law.

    [46](1978) 141 CLR 54 at 66.

    [47]Bunning v Cross (1978) 141 CLR 54 at 72.

18. The plaintiffs' argument that Pt IAA is the sole source of an authority to use the information taken and that it provides a basis for an injunction must be rejected.

    The consequences of trespass – a basis for injunction?

19. It is well settled that conduct involving the search of premises and the seizure of property under an invalid warrant constitutes a trespass[48]. The trespass extends to goods on the premises the possession of which is subject to interference. But as earlier mentioned, the plaintiffs do not seek damages for the trespass. The principal relief that they seek is a mandatory injunction which would require the information held by the AFP to be destroyed or delivered up to the plaintiffs.

    [48]Coco v The Queen (1994) 179 CLR 427 at 436, cited in New South Wales v Corbett (2007) 230 CLR 606 at 626 [81].

20. The plaintiffs' argument for an injunction of this kind commences with a discussion of what would have occurred had they been able to apply for an injunction prior to the search being conducted and the trespass committed. They contend that the Court would have been in a position to grant a prohibitive injunction in its auxiliary equitable jurisdiction. It would not have been necessary for the plaintiffs to assert an entitlement to an injunction in the exclusive jurisdiction based on an equitable claim for breach of confidence. The threatened tort would have been sufficient to found an entitlement to the injunction. So much may be accepted. But it is also well settled that if a trespass is complete the courts will not interfere. They will only do so if the damage which has occurred is serious or the trespass is continuing in its effects[49].

    [49]Kerr, A Treatise on the Law and Practice of Injunctions, 6th ed (1927) at 94-95.

21. The argument then proceeds to the proposition that equity does not abandon persons such as the plaintiffs because they were unable to obtain an interlocutory order. An injunction may be granted to restore the status quo as it existed prior to the trespass by the court making orders with respect to the consequences of the tort, which is to say the copying of the information from the mobile phone. Again, this is not said to depend upon the plaintiffs having proprietary rights or a claim to confidential information. Rather, it is said that equity will act in the auxiliary jurisdiction to restore the plaintiffs to the position in which they would have been had their legal rights not been infringed.

22. The plaintiffs' argument appears to be premised on the notion that "equity will not suffer a wrong to be without a remedy", but the maxim has never meant that the courts of equity would invent a remedy solely because the plaintiff had suffered an injustice for which no remedy was available. A "wrong" refers to conduct which is recognised as being contrary to law. The maxim means no more than that the court would afford a remedy for the invasion of a subsisting legal or equitable right.

23. To the extent that the plaintiffs may be understood to contend that a mandatory injunction may be granted where there is some ongoing effect from tortious conduct, the contention gains some support from Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia[50]. There Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said[51] that, in a conspiracy case, where the acts referable to the conspiracy have occurred and the tort is complete, ordinarily the plaintiff is limited to the recovery of pecuniary damages. But, their Honours said, there is no rule which prevents a court from granting a mandatory injunction where the damage caused by tortious conduct is ongoing and is "extreme, or at all events very serious"[52]. A mandatory injunction may issue to prevent the occurrence of further damage.

    [50](1998) 195 CLR 1.

    [51]Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 31 [33].

    [52]Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 31 [33], referring inter alia to Durell v Pritchard (1865) LR 1 Ch App 244 at 250 and Joyce, The Law of Injunctions (1872), vol 1 at 439.

24. It may be accepted in the present case that the use of the information obtained from the first plaintiff's mobile phone may have serious consequences for the plaintiffs, but that is not to say that the plaintiffs have suffered damage by reason of the information being taken or that its use, in the investigation of an offence, constitutes damage recognised by the law. In Patrick Stevedores, had the conspiracy been carried through to its completion, employees who were members of the respondent union would have lost their employment and found it difficult to obtain other work. Those consequences were described as "extremely serious"[53] and it was said that damages would be "very large"[54] or "enormous" and hence a factor relevant to the scope of relief available[55].

    [53]Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 31 [32].

    [54]Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 31 [32].

    [55]Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32 [34].

25. In cases of trespass what may constitute injury is somewhat wider than in some other torts. Injury in the nature of an affront to a plaintiff's dignity[56] or the apprehension of harm may qualify as damage for the purpose of an award of damages. Even so, it is not possible to regard the prospect that one may be investigated for an offence as injury. And needless to say, public policy would not permit such a course.

    [56]Sappideen and Vines (eds), Fleming's The Law of Torts, 10th ed (2011) at [9.10]; New South Wales v Ibbett (2006) 229 CLR 638.

26. It may also be accepted that an award of damages will not redress the consequence that the information taken as a result of the trespass may be used in aid of the investigation of one or both of the plaintiffs. At a number of points in their submissions the plaintiffs placed some weight upon damages being an inadequate remedy as supporting the grant of an injunction.

27. The principle that a plaintiff does not obtain an injunction for actionable wrongs for which damages are the proper remedy is well established[57]. If damages are adequate a party "should be relegated to that remedy; only if damages are inadequate will an injunction lie"[58]. The principle is given effect as a rule, in the nature of a negative condition, for a grant of an injunction. It is a necessary, but not sufficient, condition for a grant. It cannot be elevated to an independently sufficient basis for an injunction, as the plaintiffs suggest.

    [57]London and Blackwall Railway Co v Cross (1886) 31 Ch D 354 at 369.

    [58]Heydon, Leeming and Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, 5th ed (2015) at [21-040].

28. No doubt the plaintiffs' argument takes as its starting point the proposition that they would have been granted an interlocutory injunction prohibiting the trespass, had they been in a position to apply in time, because that has been said to be a requirement for a mandatory restorative injunction, one which reverses an act done by the defendant where damages are not an adequate remedy[59]. Examples given in the text to which the plaintiffs refer[60] of cases where such an order has been made include those involving damage to property and other rights and breach of contract, where the order is akin to specific performance. But nowhere is it suggested that such an order will be made where the plaintiff has no legal right. And here the plaintiffs can point to none.

    [59]Young, Croft and Smith, On Equity (2009) at [16.110].

    [60]Young, Croft and Smith, On Equity (2009) at [16.110] (footnote 57).

29. It is well settled that for the grant of an injunction in equity's auxiliary jurisdiction, interlocutory or final, a plaintiff must have a legal right which the injunction will protect[61]. It is so well settled that arguments concerning it tend to focus upon what may or may not constitute such a right. By way of example, recently, in Glencore International AG v Federal Commissioner of Taxation[62], the plaintiffs accepted that they needed to show that they had an actionable right, but they did not succeed in establishing that legal professional privilege qualified as such a right[63].

    [61]Heydon, Leeming and Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, 5th ed (2015) at [21-035].

    [62](2019) 93 ALJR 967; 372 ALR 126.

    [63]Glencore International AG v Federal Commissioner of Taxation (2019) 93 ALJR 967 at 969 [8], 970 [12]; 372 ALR 126 at 128, 129.

1. What was said by Young J in Lincoln Hunt Australia Pty Ltd v Willesee[64] might appear to lend some support to the plaintiffs' argument that equity might grant an injunction respecting information even if no equity of confidence attached to it. In that case an injunction was sought to prevent the publication of a film taken by a trespasser in circumstances where the trespasser's conduct was egregious. His Honour considered that the circumstances in which the filming occurred, combined with evidence that the publication might affect the plaintiff's goodwill, required that serious consideration be given as to whether an injunction should be granted[65]. His Honour expressed the opinion that the courts have power to grant an injunction even though no confidentiality was involved, although he qualified that by saying that the court would only intervene "if the circumstances are such to make publication unconscionable"[66]. His Honour did not have to decide that question. Injunctive relief was denied in that case on the basis that an award of exemplary damages at trial would be an adequate remedy.

   [64](1986) 4 NSWLR 457.

   [65]Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 464.

   [66]Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 463.

2. At a factual level the circumstances of the present case are remote from those in Lincoln Hunt. There is nothing to suggest any untoward conduct on the part of the AFP officers who executed the Second Warrant. It is an agreed fact that they believed the warrant to be valid and the search and seizure therefore to be authorised. But these observations should not be taken as accepting the point of principle stated in Lincoln Hunt.

3. The approach of Young J in Lincoln Hunt may be contrasted with that of the Full Court of the Supreme Court of Queensland in Coco v Shaw[67]. There the primary judge had ordered the delivery up to the plaintiff of recordings which had been obtained through the use of an unauthorised listening device. McPherson SPJ observed[68] that the fact that the conversation recorded was private did not make it confidential in the sense spoken of in equity. His Honour stated that the law does not protect conversations as such, whether private or otherwise, from disclosure. What it protects from disclosure is information which properly justifies and attracts judicial protection. Ryan J observed[69] that if the entry for the purpose of putting the listening devices in place was unauthorised and therefore unlawful, that circumstance might provide a basis for the rejection of the evidence as a matter of discretion, in accordance with Bunning v Cross, but it would not warrant the making of the orders made by the primary judge.

   [67][1994] 1 Qd R 469.

   [68]Coco v Shaw [1994] 1 Qd R 469 at 486.

   [69]Coco v Shaw [1994] 1 Qd R 469 at 493.

4. The respondent in Lenah Game Meats faced a similar difficulty to the plaintiffs in the present case. The respondent's claim to an injunction to prevent the publication of a film taken of processes in its abattoir in the course of a trespass was not based upon a claim to property or to the intellectual property in the film. It attempted, unsuccessfully, to establish an equitable right by analogy with confidential information.

5. The respondent in Lenah Game Meats also relied upon what Young J had said in Lincoln Hunt, but it cannot be said that that case received any real measure of support from members of this Court. Gleeson CJ considered that a remedy could be provided only where the information obtained by the trespasser could be regarded as confidential[70]. Whether his Honour considered that that condition might be fulfilled if the activities filmed were sufficiently private may presently be put to one side[71]. So far as concerns what appears to be the basis given by Young J for injunctive relief, that the conduct of the defendant be unconscionable, Gleeson CJ concluded that "the circumstance that the information was tortiously obtained in the first place is not sufficient to make it unconscientious of a person into whose hands that information later comes to use it or publish it. The consequences of such a proposition are too large."[72]

   [70]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 230-231 [55].

   [71]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 230 [52].

   [72]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 231 [55].

6. In the view of Gummow and Hayne JJ[73], the term "unconscientious", rather than "unconscionable", better indicates the areas in which equity intervenes to vindicate the requirements of good conscience, such as where it denies the enforcement of legal rights, sets aside transactions or holds a person estopped. The notion of unconscionable behaviour does not operate at large as the respondent had contended, their Honours observed.

   [73]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 244-245 [98] (Gaudron J agreeing at 231 [58]), referring to The Commonwealth v Verwayen (1990) 170 CLR 394 at 444, 446.

7. Gummow and Hayne JJ accepted that orders of the kind referred to in Lincoln Hunt and later cases[74] might have been made on grounds other than unconscionability. Their Honours considered that a basis in principle might be found in the imposition of a constructive trust over the maker's rights under the Copyright Act 1968 (Cth) in favour of the plaintiff. However, that would only arise where the making of the film involved the invasion of the plaintiff's legal or equitable rights or a breach of confidence. In such a circumstance it might be inequitable or against good conscience for the maker to assert ownership against the plaintiff and to broadcast the film[75].

   [74]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 246 [100], referring to Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 and Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231.

   [75]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 246 [101]-[102].

8. Nothing said in Lenah Game Meats detracts from the need for a plaintiff to identify a legal right as the subject of the court's protection by way of injunction in the auxiliary jurisdiction. Even accepting that the injunction remedy is still the subject of development by courts exercising equitable jurisdiction, as Gummow and Hayne JJ said, "[t]he basic proposition remains that where interlocutory injunctive relief is sought ... it is necessary to identify the legal ... or equitable rights which are to be determined at trial"[76]. The plaintiffs can point to no authority which recognises their interest in not being investigated in relation to an offence as a right.

   [76]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 241 [91].

   An invasion of privacy?

9. The real difficulty for the respondent in Lenah Game Meats, Gummow and Hayne JJ observed, was that it did not raise a recognised cause of action[77]. That is not to say that one might not be available with respect to an invasion of privacy, but the development of the law in that regard will benefit only natural persons, not companies such as the respondent in that case[78]. Their Honours went on to say that the debate about the tort of privacy should not be regarded as foreclosed[79] including by the decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[80].

   [77]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 238 [81].

   [78]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 257 [129], 258 [131].

   [79]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 258 [132].

   [80](1937) 58 CLR 479.

10. Their Honours were of course speaking of the development of the common law. A right of privacy has been recognised in only some jurisdictions in Australia in human rights legislation[81]. It has been observed by the Australian Law Reform Commission[82] that there has been considerable opposition to reform in this area from the media and that some have expressed reluctance to create a statutory cause of action when privacy protection could be left to the incremental development of the common law[83]. On the other hand, the legislature has acknowledged the need to protect persons from invasions of privacy when enacting statutes concerning search warrants, as has been observed earlier in these reasons[84].

    [81]Human Rights Act 2004 (ACT), s 12 and Charter of Human Rights and Responsibilities Act 2006 (Vic), s 13, both referred to in Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) at 2539; see also New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1 (2007) at 14 [1.31].

    [82]Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) at 2556, 2558-2562.

    [83]Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008) at 2555-2556 [74.81]-[74.82]; see also New South Wales Law Reform Commission, Invasion of Privacy, Report 120 (2009) at 8-9 [3.3].

    [84]See above at [24].

11. What was said in Lenah Game Meats concerning the recognition by the common law of privacy as a possible right and a basis for relief post-dated decisions such as Lincoln Hunt and Coco v Shaw where the focus was upon equitable principles. It is noteworthy that in Lenah Game Meats Gleeson CJ considered that the question stated by Young J in Lincoln Hunt, as to whether the circumstances made publication unconscionable, could be answered in the affirmative "provided the activities filmed were private"[85].

    [85]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 230 [52].

12. There have been other recognitions of relief founded upon an invasion of privacy. Hart v Commissioner of Australian Federal Police[86] relevantly concerned an invalid seizure by the AFP of material contained on tapes, cartridges and disks and the taking of copies from them. In dealing with an argument put by the AFP a Full Court of the Federal Court (French, Sackville and R D Nicholson JJ) said[87]:

    "The disk or other storage devices onto which information is downloaded … do not thereby become the property of the owner of the equipment from which the information was copied. But having been copied in consequence of an unauthorised invasion of privacy, the Court will, in such a case, award appropriate relief which may include the delivery up of the relevant storage devices to the owner or occupier of the premises."

    [86](2002) 124 FCR 384.

    [87]Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at 406 [88].

13. Without determining whether the common law of tort may recognise a tort of privacy, it cannot be said that there is no prospect of a remedy, at least for the first plaintiff. The plaintiffs do not seek to have that question determined. In argument they did, however, rely upon the information or material which was taken as something which the first plaintiff sought "to keep private" and they relied upon the fact that the trespass was to her home and her personal mobile phone as "an invasion of her privacy".

    Section 75(v)

14. According to the special case, this matter is brought in the original jurisdiction of this Court including as a matter "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth", as s 75(v) of the Constitution provides. In their submissions before and at the hearing the plaintiffs did not rely upon s 75(v) as expanding the power to grant an injunction. They did not suggest that the jurisdiction given by s 75(v) is to be exercised by the courts other than in accordance with the principles by which injunctions are usually granted by the courts, although obviously enough s 75(v) is concerned with conduct or decisions by persons having a particular status which may have public as well as private effects.

15. Following the hearing of argument on the special case the Court invited further written submissions from the parties and intervenors as to whether the circumstance that officers of the AFP, acting in the purported execution of the Second Warrant, committed a trespass or acted in excess of statutory power provides a sufficient juridical basis for the issuing of an injunction under s 75(v) and whether that provision affects the discretionary arguments put by the parties. The latter subject will be dealt with later in these reasons.

16. The plaintiffs by written submissions responded to the effect that, to the extent that a general law injunction is incapable of reversing the consequences of the tortious conduct in question, s 75(v) should not be regarded as so constrained. That is because, like the constitutional writ of prohibition, an injunction under s 75(v) is not limited to preventing consequences but extends to reversing consequences. The protective constitutional purpose of s 75(v), it is submitted, requires that relief be given where a Commonwealth officer has acted in excess of jurisdiction with "ongoing consequences" but where there is no threat of continued acts in excess of jurisdiction.

17. The Commonwealth submits that s 75(v) does not put the plaintiffs in any stronger position with respect to the grant of an injunction. There is no general principle of the law which says that the court will grant an injunction to reverse the consequences of a tort. If there be any analogy between an injunction under s 75(v) and the remedy of prohibition, it is that prohibition, like an injunction, is not directed to the "consequences" of wrongful conduct, let alone to bringing about their "reversal". In the cases relied upon by the plaintiffs the remedy was said to have in fact issued on a much narrower basis, namely to ensure that the exercise of power made in excess of jurisdiction did not remain in force so as to impose liabilities on an individual[88], or to prevent further action based on a decision which had been quashed[89]. The constitutional purposes of s 75(v), it is submitted, do not require it to have some "wrong-reversal" capacity or operation. Nothing in the Convention Debates suggests that the injunction for which s 75(v) provides was to be given any extended reach[90].

    [88]R v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1920) 28 CLR 456; likewise Jones v Owen (1848) 5 Dow & L 669 at 674.

    [89]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 117 [84].

    [90]Citing, inter alia, Official Record of the Debates of the Australasian Federal Convention (Melbourne), 4 March 1898 at 1876-1878, 1883-1884.

18. The framers no doubt provided the equitable remedy of an injunction to address concerns that the basis for the writs of mandamus and prohibition might be too narrow[91]. The technicalities associated with prerogative writs rendered them inadequate in some respects[92]. Equitable relief might be available when a prerogative remedy is not[93].

    [91]Leeming, "Standing to seek injunctions against officers of the Commonwealth" (2006) 1 Journal of Equity 3 at 7, referring to Official Record of the Debates of the Australasian Federal Convention (Melbourne), 31 January 1898 at 320 (Barton).

    [92]Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 257 [25]; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 144 [19], 157 [58].

    [93]Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 158 [58].

19. The framers of the Constitution must be taken to have understood the bases upon which the three remedies provided by s 75(v) were given by the courts, even if the constitutional writs are not to be regarded as fixed by the general law[94]. At Federation, the injunction was used in England and the United States to restrain injury to the rights of a person by administrative decisions tainted by abuse of power[95]. In this context an injunction may be understood as directed to an unlawful exercise of power[96]. It lies to prevent the implementation of invalid exercises of power[97]. But this says nothing about conduct in excess of power which is not continued. The fact that an officer of the Commonwealth has acted in excess of power may bring s 75(v) into focus but is not itself sufficient for the grant of an injunction. A critical question regarding the grant of that remedy relates to the effect that that conduct has had on the plaintiff and then whether there are discretionary considerations to be weighed. The distinction to be borne in mind is as between the jurisdiction to grant a remedy and the matters which inform the grant.

    [94]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 92-93 [18]-[21], 133-134 [138].

    [95]Gummow, "The Scope of Section 75(v) of the Constitution: Why Injunction but No Certiorari?" (2014) 42 Federal Law Review 241 at 242.

    [96]Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 178-179, 204-205; see also Reynolds, "The Injunction in Section 75(v) of the Constitution" (2019) 30 Public Law Review 211 at 214.

    [97]Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146.

20. Section 75(v) is an irremovable source of jurisdiction and power[98]. Its purposes are clear. It was included in the Constitution "to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power"[99]. It is a means of assuring all that officers obey the law and neither exceed nor neglect any jurisdiction which the law confers on them[100]. These purposes do not speak to the operation of s 75(v) for which the plaintiffs contend.

    [98]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.

    [99]Bank of New South Wales v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 363.

    [100]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513-514 [104].

21. The remedy of injunction under s 75(v) remains essentially an equitable type of remedy. It may not be subject to the same limitations as are the constitutional writs but, as Gaudron J has observed[101], "[i]n the field of public law, equitable remedies are subject to the same considerations, including discretionary considerations, as apply in any other field".

    [101]Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 158 [58].

    Discretionary considerations

22. Even if the plaintiffs had been able clearly to identify a juridical basis for the injunctive relief sought, strong discretionary considerations, based on the policy of the law, would deny a grant. It has long been accepted that the courts will refuse to exercise their discretion to grant equitable relief when to do so would prevent the disclosure of criminality which it would, in all circumstances, be in the public interest to reveal[102]. Even injunctions which may be given in the exclusive jurisdiction of equity to protect an equitable right such as confidential information may be refused on this ground, for, as has often been said, there is "no confidence as to the disclosure of iniquity"[103].

    [102]A v Hayden (1984) 156 CLR 532 at 544-545; see also at 559-560, 573-574.

    [103]Gartside v Outram (1856) 26 LJ Ch 113, quoted in A v Hayden (1984) 156 CLR 532 at 545, 572.

23. The public interest in question is the same public interest that is recognised by the legislature in enacting statutes which authorise search warrants and which informs the view of the courts[104] and the legislature[105] as to whether evidence unlawfully obtained might nonetheless be admitted into evidence. The fact that documents or information have been obtained without lawful authorisation is not itself sufficient to foreclose their use.

    [104]See Bunning v Cross (1978) 141 CLR 54.

    [105]See Evidence Act 1995 (Cth), s 138.

1. The inadequacy of damages is to be assessed from the perspective of Ms Smethurst only, and not the perspective of the Australian Federal Police. From Ms Smethurst's perspective, the question is whether a damages award would be inadequate to ameliorate the consequences of the trespass by the Australian Federal Police. Contrary to Ms Smethurst's submission, the relevant consequence is not the possibility that she might be exposed to jeopardy due to any incriminating material on her mobile phone or the costs or distress associated with such exposure. Ms Smethurst pointed to no basis for any immunity from investigation by the Australian Federal Police and therefore no lawful interest in resisting investigation or exposure to jeopardy.

2. However, independently of any development of the law concerning private information, Ms Smethurst does have an interest in resisting the potential dissemination of private information contained on her mobile phone which has not been lawfully obtained. In an appropriate case, the strength of that interest will establish that damages are inadequate. The question is whether this case is such an appropriate case. I have not found this question easy. The reasons of Nettle J[388] concerning the limited use to which the Australian Federal Police are likely to put the information in the performance of their functions present a powerful case for a conclusion that damages would be adequate. Ultimately, however, I have concluded that Ms Smethurst's interest in privacy is sufficient to establish that damages would not be adequate.

   [388]Reasons of Nettle J at [158]-[162].

3. There was no dispute that the information obtained from Ms Smethurst's password-protected mobile phone was private information. If that information had been obtained lawfully, it would have been subject to the protections afforded by Pt IAA of the Crimes Act. Those protections, undoubtedly motivated by a concern for unspecified individual rights and freedoms[389], which would encompass privacy, include: (i) in some circumstances providing the occupier of the premises, upon request, with a copy of the information as soon as practicable after the seizure[390]; (ii) restrictions upon using the information as a "thing seized under this Part" for particular purposes and only "if it is necessary to do so for that purpose"[391]; (iii) restrictions on sharing the information with a State, Territory, or foreign agency[392]; and (iv) subject to limited exceptions, requirements to return the information when it is no longer required for purposes provided by statute or for judicial or administrative review proceedings[393].

   [389]Australia, House of Representatives, Parliamentary Debates (Hansard), 17 November 1993 at 3031; Australia, House of Representatives, Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1993, Explanatory Memorandum at 1. See also Australia, House of Representatives, Parliamentary Debates (Hansard), 1 February 1994 at 67, 74.

   [390]Crimes Act, s 3N.

   [391]Crimes Act, s 3ZQU(1).

   [392]Crimes Act, s 3ZQU(5).

   [393]Crimes Act, ss 3ZQX(1), 3ZQX(2).

4. I agree with Kiefel CJ, Bell and Keane JJ that those restrictions do not apply to information obtained by an unlawful warrant[394]. The consequence of the trespass, therefore, is that Ms Smethurst's private information is held by the Australian Federal Police without the privacy protection to which she would otherwise have been entitled. Further, in circumstances in which the second warrant was substantially lacking in clarity, the private information obtained might have gone well beyond the information to which the Australian Federal Police were lawfully entitled. An award of damages, unlike a mandatory injunction, would provide no privacy protection over information that should not have been obtained or even information that would otherwise have been obtained but which would have been subject to the privacy protections of the Crimes Act. In the likely absence of any pecuniary loss, damages would also be very difficult to calculate.

   [394]Reasons of Kiefel CJ, Bell and Keane JJ at [58]-[65].

5. The inadequacy of damages is a consideration in favour of an injunction only from the plaintiff's perspective. The perspective of the defendant must also be considered when assessing whether the defendant should be compelled to take action to reverse or ameliorate the consequences of a wrong where the defendant is not under a duty otherwise to perform the act.

6. From the perspective of the Australian Federal Police, a mandatory injunction could involve a substantial interference with their liberty to act lawfully. Subject to the effect on the statutory powers of police of any development of common law or equitable principles concerning privacy, the Australian Federal Police are at liberty to disseminate private information about others in connection with their lawful investigation of Commonwealth offences[395].

   [395]Australian Federal Police Act 1979 (Cth), s 8(1)(b)(i).

7. The paucity of facts before this Court makes an overall assessment of the relative effect of a mandatory injunction upon each party particularly difficult. There are insufficient facts from which to draw any inference about the nature or quality of the private information copied from Ms Smethurst's mobile phone. Nor are there sufficient facts from which any inference can be drawn about the relevance of any of the private information copied from Ms Smethurst's mobile phone to the investigation of Commonwealth offences, particularly in light of the lack of clarity in the second warrant.

8. Some of the formulations of the injunctive relief sought by the plaintiffs require a greater restriction of the liberty of the Commissioner than could be necessary to ameliorate the adverse consequences of the wrongdoing to Ms Smethurst. For instance, in circumstances where it is not known whether the private information is still possessed by Ms Smethurst, an injunction that required all copies of the private information to be destroyed could prevent the Australian Federal Police from ever lawfully obtaining that information, which might be required to investigate and prosecute crime.

9. The Solicitor-General of the Commonwealth submitted that this Court might permit the Commissioner to retain and use the copied data on terms that restrict the Australian Federal Police to use of the information only according to the regime in the Crimes Act as if the information had been obtained lawfully. An injunction in these terms would protect the interest of Ms Smethurst in her privacy to the same extent as if no trespass had occurred and the warrant had been obtained lawfully. The injunction would constrain the liberty of the Australian Federal Police by restricting them to acting as if the information had been lawfully obtained. However, an injunction in these terms does not truly reverse the consequences of the unlawful action. Rather, it treats the unlawful action as though it were lawful. It should be no answer to a claim for delivery up from a person who unlawfully takes a valuable heirloom for that person to say that the owner would have given him the heirloom if he had asked for it. Further, the lack of clarity of the second warrant means that there is a real possibility that some of the information might never have been lawfully obtained even if the warrant had been clearly expressed.

10. There is a further alternative which does not require treating the trespass as though it were lawful and which would also preserve the liberty of the Australian Federal Police to obtain the information, provided that it can be done lawfully. The appropriate form of such a mandatory injunction, which should be expressed as subject to any lawful warrant that would, in effect, permit the information to be obtained and retained by the Australian Federal Police, would be:

    "Upon 72 hours' notice from Ms Smethurst, and subject to the terms of any lawful warrant, the Commissioner of the Australian Federal Police deliver up to Ms Smethurst, at an agreed time and place, or in default of agreement at an address for service upon Nationwide News Pty Ltd, a Universal Serial Bus (USB) storage device containing the information copied from Ms Smethurst's mobile phone in an accessible form, and delete all other copies of that information held by, or within the control of, the Australian Federal Police."

11. By expressing an injunction in this form, the order ameliorates the consequences of the trespass by intruding to the minimum degree possible upon the liberty of the Commissioner to act lawfully without treating the trespass as though it were lawful. By making the injunction subject to the terms of a lawful warrant the order also avoids the comic possibility of the simultaneous return of the information to Ms Smethurst on a USB storage device and seizure of that USB storage device pursuant to a valid warrant[396]. Naturally, and in any event, the Australian Federal Police would retain title to any USB storage device delivered to Ms Smethurst.

    [396]Compare Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393.

    Considerations external to the parties that inform the discretion to refuse the injunctive relief

12. Even where an injunction would be warranted as necessary to do justice between the parties there remains a "discretion" to refuse the injunction. However, the cases have sometimes conflated the separate questions of (i) whether, as between the parties, a plaintiff would have a right that could support the injunction and (ii) whether the injunction should be refused for "discretionary" reasons. An example is the decision in A v Hayden[397]. In that case, the plaintiffs were members of the Australian Secret Intelligence Service whose identity was not known to the Chief Commissioner of Police but who were believed to have committed breaches of the criminal law. The plaintiffs sought an injunction to restrain the Commonwealth from disclosing their identity to the Chief Commissioner including on the ground that to do so would violate confidentiality terms in their contracts of employment with the Commonwealth. The injunction was refused. A simple reason for refusal might have been that there was no right upon which the injunction could be based because parties cannot, by agreement, confer upon themselves a right that the other will maintain the confidentiality of a crime, arguably other than a trivial misdemeanour[398]. At one point in his judgment Gibbs CJ appeared to favour that view, saying that the injunction would not issue because, quoting Wood VC, "there is no confidence as to the disclosure of iniquity"[399]. However, at another point Gibbs CJ said that the contract term was "not in itself invalid" but a "discretion" should be exercised to deny the injunction[400]. Similarly, Mason J held that although the contract term was not void or unenforceable, the court could refuse a remedy on the ground of "public policy"[401], citing the example of Beresford v Royal Insurance Co[402]. Yet, in that case, Lord Atkin, with whom Lords Thankerton and Russell of Killowen agreed, held that the effect of the "public policy" was that the "contract is in the circumstances unenforceable"[403].

    [397](1984) 156 CLR 532.

    [398]See A v Hayden (1984) 156 CLR 532 at 546, 574.

    [399]A v Hayden (1984) 156 CLR 532 at 545, quoting Gartside v Outram (1856) 26 LJ Ch 113 at 114.

    [400]A v Hayden (1984) 156 CLR 532 at 544-545.

    [401]A v Hayden (1984) 156 CLR 532 at 557.

    [402][1938] AC 586.

    [403]Beresford v Royal Insurance Co [1938] AC 586 at 601.

13. For the reasons given in the previous section, as between the parties the plaintiffs were entitled to an injunction to reverse the consequences of the trespass committed. However, the Commissioner and the Attorney-General also relied upon the Court's discretion to refuse the injunction. The discretionary factors relied upon were reasons independent of the conduct of the parties. These independent reasons of discretion nevertheless involve the application of general principles[404]. If a court were to refuse an injunction for reasons other than those of general principle then, as Lindley LJ said of damages in lieu of an injunction, there would be a danger that the court could be turned into a "tribunal for legalizing wrongful acts"[405].

    [404]Doherty v Allman (1878) 3 App Cas 709 at 724; Warman International Ltd v Dwyer (1995) 182 CLR 544 at 559.

    [405]Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 at 315, see also at 322-323. See also Lawrence v Fen Tigers Ltd [2014] AC 822 at 855 [121].

14. A common instance where an injunction is refused due to considerations of general principle beyond the justice between the parties is where the injunction would interfere with the rights of third parties[406]. Another is where it would interfere with a clear and compelling interest of the general public, such as where a need for public housing meant that, despite their construction being a result of a breach of a negative covenant, it would be "an unpardonable waste of much needed houses to direct that they now be pulled down"[407]. In this case, the reason effectively relied upon by the Commissioner and the Attorney-General is the "public interest in the administration of and non-interference with justice"[408], which, more specifically, has been said to include a liberty for the police lawfully "to do whatever is necessary and reasonable to preserve the evidence of the crime"[409]. It was submitted by the Commissioner and the Attorney-General that, since unlawfully obtained evidence will not always be excluded under s 138 of the Evidence Act 1995 (Cth), the information "might still be admissible in the event that criminal proceedings are commenced", and hence that the public interest required that the police be able to retain and use it.

    [406]See Wood v Sutcliffe (1851) 2 Sim (NS) 163 at 165-166 [61 ER 303 at 304]; Miller v Jackson [1977] QB 966 at 988; Spry, The Principles of Equitable Remedies, 5th ed (1997) at 402-403, quoted in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 42 [65]. See also now Spry, The Principles of Equitable Remedies, 9th ed (2014) at 416-417. See also John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at 46 [129].

    [407]Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 at 811; [1974] 2 All ER 321 at 337.

    [408]Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 405. See also George v Rockett (1990) 170 CLR 104 at 110.

    [409]Ghani v Jones [1970] 1 QB 693 at 708.

15. In some cases it has been said or held to be a sufficient reason to refuse to make an order to return seized material that the material is to be tendered as part of an existing or reasonably certain prosecution[410]. These cases do not assist here for three reasons. First, in this case, no inference can be drawn that any prosecution will be brought, and no inference can be drawn that the material is relevant to any prosecution. Secondly, many of the cases involve claims for the return of lawfully seized material. Where material is lawfully seized, there is a common law power associated with the power to seize, which gives effect to the purpose of seizure, for the material to be retained for as long as it is reasonably required to achieve the purpose for which it has been seized[411].

    [410]Walker v West [1981] 2 NSWLR 570 at 584; Parker v Churchill (1985) 9 FCR 316 at 330-333; Rowell v Larter (1986) 6 NSWLR 21 at 32; Ozzie Discount Software (Aust) Pty Ltd v Muling (1996) 86 A Crim R 387 at 397; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 405; Caratti v Commissioner of the Australian Federal Police [No 2] [2016] FCA 1132 at [463]; Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166 at 221-222 [158].

    [411]Ghani v Jones [1970] 1 QB 693 at 709.

16. Thirdly, and most fundamentally, in none of the cases was there any separate consideration of the two different issues described above which arise upon a claim for the return of seized material: (i) whether the plaintiff would have been entitled to the return of the seized material as against the defendant, and (ii) whether discretion should nevertheless be exercised to refuse to order the return. For instance, in Malone v Metropolitan Police Commissioner[412], the Court of Appeal of England and Wales refused to order the return of the banknotes lawfully seized from Mr Malone, on the basis that they were potentially material evidence at a pending criminal trial[413]. Due to the conclusion by the Court that it was lawful to retain the banknotes, there was no consideration of either (i) whether damages for the capital value or use value of the notes would be adequate for any period of unlawful retention of the banknotes, or, if not, (ii) whether a "discretion" should be exercised to refuse the return of the seized banknotes. These two issues are also not separated in the discussion of any return of the electronic equipment seized in the Caratti litigation[414], or the money and jewellery in Walker v West[415], or in the example given by Lord Denning MR of a saucer with the fingerprints of the great train robbers[416]. In each instance, it is strongly arguable that there would be no basis for an order for return of the material, as between the parties, thus rendering moot the issue of "discretion" based upon an asserted public interest in preserving the evidence of crime.

    [412][1980] QB 49.

    [413]Malone v Metropolitan Police Commissioner [1980] QB 49 at 70. See also Gollan v Nugent (1988) 166 CLR 18 at 43-44.

    [414]Caratti v Commissioner of the Australian Federal Police [No 2] [2016] FCA 1132 at [463]; Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166 at 221-222 [158]-[159].

    [415][1981] 2 NSWLR 570.

    [416]Ghani v Jones [1970] 1 QB 693 at 708.

17. I accept that the public interest in the administration of criminal justice could, particularly in circumstances of serious crime, allow the refusal of an order for the return of unlawfully seized material to which a plaintiff would otherwise have been entitled if the material is (i) reasonably likely to be admissible evidence to prove a crime and (ii) necessary to give that evidence effectively. In contrast, if there is no reasonable likelihood of criminal proceedings, or no reasonable likelihood that the material could be admissible, or if the evidence could be given effectively without the material, such as by identical copies of the material, then there could not be any sufficient public interest to justify denying a plaintiff the right that they would otherwise have to the return of the material.

18. The onus of establishing that a plaintiff should be denied a right to the return of material for reasons of public interest rests upon the person asserting that public interest, here the Commissioner and the Attorney-General. A principle of public interest is not established by speculation. For instance, it would be in the public interest to refuse the return of seized goods to a plaintiff if it were known that the goods would necessarily be used in the commission of a crime. But it is not sufficient to speculate that the goods might be so used, even from evidence that the plaintiff intended to use the goods in the commission of a crime, because the plaintiff might repent of that intention[417].

    [417]Feret v Hill (1854) 15 CB 207 at 226 [139 ER 400 at 408]; Gollan v Nugent (1988) 166 CLR 18 at 45, 48.

19. The Commissioner's and the Attorney-General's assertion of a public interest that would justify the refusal of the mandatory injunction should not be accepted. It requires speculation upon speculation upon speculation. First, there is no basis from which any inference can be drawn that the information contained on the USB storage device held by the police contains evidence of any crime. Secondly, even if it could be assumed that there was information which established evidence of a crime, there is no basis from which it could be concluded that any criminal proceedings are reasonably likely. Thirdly, there is no basis to conclude that information establishing evidence of a crime was reasonably likely to be admissible in such proceedings. Fourthly, and again in the absence of any detail in the special case about the content of the information, there is no basis from which it can be concluded that the information was reasonably necessary to permit admissible evidence to be given effectively. Fifthly, as I have explained, an injunction in the form described at [270] above does not necessarily prevent the Commissioner from lawfully obtaining the information.

    Conclusion

1. It was not in dispute that the plaintiffs had standing to challenge the constitutional validity of s 79(3) of the Crimes Act, upon which the second warrant was based. They relied upon the constitutional invalidity of s 79(3) as a basis to establish the invalidity of the second warrant, which depended upon the existence of an offence known to law. They also relied upon the constitutional invalidity of s 79(3) to negate the Commissioner's and the Attorney-General's assertion of a public interest in the retention of the information for a prosecution under s 79(3). However, since the basis for the plaintiffs' challenge to the validity of the second warrant was not limited to the constitutional invalidity of s 79(3), and since the plaintiffs have succeeded in their challenge to the validity of the second warrant and obtained a form of the relief that they sought, it is unnecessary to consider their case concerning the constitutional validity of s 79(3) of the Crimes Act.

2. The questions stated in the special case, as reframed in these reasons, should be answered as follows:

   (1)(a)-(b)        Yes.

   (1)(c)             Unnecessary to answer.

   (2)       Unnecessary to answer.

   (3)       Unnecessary to answer.

   (4)Orders should be made:

   (i)for certiorari to quash the search warrant issued on 3 June 2019; and

   (ii)that upon 72 hours' notice from Ms Smethurst, and subject to the terms of any lawful warrant, the Commissioner of Police deliver up to Ms Smethurst, at an agreed time and place, or in default of agreement at an address for service upon Nationwide News Pty Ltd, a Universal Serial Bus (USB) storage device containing the information copied from Ms Smethurst's mobile phone in an accessible form, and delete all other copies of that information held by, or within the control of, the Australian Federal Police.

   (5) The first defendant should pay the plaintiffs' costs of the special case.