Zhang v The Commissioner of Police & Ors

[2021] HCATrans 59

[2021] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S129 of 2020

B e t w e e n -

JOHN SHI SHENG ZHANG

Plaintiff

and

THE COMMISSIONER OF POLICE

First Defendant

JANE MOTTLEY

Second Defendant

JOSEPH KARAM

Third Defendant

MICHAEL ANTRUM

Fourth Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 APRIL 2021, AT 10.00 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Herzfeld.

MR HERZFELD:   Thank you, your Honour.  Your Honours, we have addressed the question of relief in our written submissions at paragraphs 45 and following.  We would seek to elaborate on only one matter orally which arises if the warrants are wholly invalid and that is the question of whether a mandatory injunction as sought by the plaintiff should issue.

May we draw attention to five features of the special case.  If your Honours would turn to page 45 of the special case book and then in the special case itself the first point to which we draw attention is what appears in paragraphs 9 and 10.  Your Honours have heard a deal about the seriousness of the threat of foreign interference.  These paragraphs show that the investigation of the plaintiff is part of Australia’s response to that threat.  If your Honours then notice paragraph 28, consistently with what appears in paragraphs 9 and 10, that paragraph notes that the plaintiff was being investigated for suspected involvement in contravention of the impugned provisions.

In terms of the status of that investigation, that is explained in paragraphs 33 and 35 and in addition paragraph 36 refers to the fact that, given the discovery of approximately $60,000 in cash during the execution of the first search warrant, the plaintiffs and others are presently being investigated for money‑laundering offences.  So the offences at issue are serious ones.  The investigation is ongoing, and the AFP is continuing to give consideration to whether a brief of evidence should be referred to the Commonwealth Director of Public Prosecutions.  That is the first feature to which we draw attention.

The second feature of the special case to which we draw attention is what appears in paragraph 26, concerning the conduct of the AFP officers during the execution of the searches.

The third feature to which we draw attention is that, unlike Smethurst, the subject matter of the proceeding is both copied data and some personal property.  As to the copied data, your Honours will see what is said in paragraph 29, to which the learned Solicitor‑General drew your Honour’s attention.  Your Honours can see how what was found there immediately has apparent relevance to the suspected offending.

As for the personal property, your Honours will see what appears in paragraph 30, relating to the personal property that the AFP continues to retain.  All other personal property which was seized during the searches has been returned.

The fourth feature to which we draw attention is what occurred following the execution of the first and second warrants at the end of June 2020.  The plaintiff did not foreshadow a challenge to the warrants until nearly a month later, on 22 July 2020.  If your Honours turn to page 88 of the special case book, your Honours will see, in the fourth paragraph of that letter, the foreshadowed challenge, and at the top of page 89, a request that the AFP cease examination of the material pending the outcome of the challenge.  The proceeding itself was not, in fact, instituted until about a week later.  So, that is about five weeks after the execution of the first and second warrants.

Returning to the special case itself, what had occurred in the meantime is what appears in paragraph 18 of the special case.  It shows that, to plaintiff’s knowledge, the AFP had already begun taking steps to examine the electronic devices that had been found during the searches.  As I have already taken your Honours to, paragraph 29 shows that the AFP had found information indicating the plaintiff had:

on multiple occasions, met and communicated with representatives of the United Front Work Department.

As noted in paragraph 34 of the special case, unlike Smethurst, no undertaking was given by the AFP to cease examination pending the outcome of these proceedings.  The plaintiff at no time sought an interlocutory injunction requiring the AFP to cease doing so.  Without going to all of the correspondence referred to in that paragraph, would your Honours please turn to page 95 of the special case book.  We draw attention in the letter on page 95 to what appears in paragraph 4 in the first two sentences. 

This leads to the fifth feature to which we draw attention, and it is what appears in paragraphs 31, 32 and again 33, but particularly 31 and 32 of the special case.  In summary:

The AFP has based investigative enquiries on, and plans to take further investigative action as a result of, the material seized under –

the warrants.  As explained there, though the plaintiff was unable to recall his WeChat password, the Huawei phones are being examined, and a vast number of WeChat messages have been identified as being held on those phones.  So they are the five features of the special case to which we draw attention relevant to relief.

In light of those features, both as to the personal property and the copied data, in our submission injunctive relief should be refused as a matter of discretion, quite apart from any question of power relating to the copied data.  We make four points in support of that contention. 

The first is that in circumstances where, as in Smethurst, the officers in question acted in good faith, believing their actions to be authorised, we rely on the discretionary consideration which found favour with the majority in Smethurst, namely the policy of the law to refuse to grant equitable relief when to do so would prevent the disclosure of criminality.  Without going to it, I will give your Honours the references to the paragraphs in Smethurst.  They are paragraphs [99] to [104] in the joint reasons and paragraph [160] in the reasons of Justice Nettle. 

Secondly, one of the points made by your Honour Justice Gageler in Smethurst at paragraph [137] and your Honour Justice Edelman at paragraph [267] was the absence of any material in the Smethurst special case to ground an inference about the relevance of the copied information to the investigation of any offending.  Now, in contrast, the special case here does provide a basis for such an inference, particularly what appears at paragraphs [29], [31], [32] and [36], to which I have drawn attention.

Thirdly, we rely on the delay on the part of the plaintiff in seeking an injunction between the execution of the first and second warrants in late June and the commencement of this proceeding and during that period the plaintiff knew that the AFP were examining the seized material.  The absence of any such a delay was a matter to which again your Honour Justice Gageler drew attention in Smethurst at paragraphs [136] to [137], and so too your Honour Justice Gordon in paragraph [192].  There is delay here which was not present in Smethurst.

The fourth point we rely on is the use that has been made of the material by the AFP since the execution of the warrants, both before and after the commencement of the proceeding.  I have already drawn your Honours’ attention to the relevant parts of the special case, but unlike Smethurst the copied data has not been quarantined pending the outcome of the proceeding, and that occurred in circumstances where no interlocutory injunction was sought by the plaintiff.  Again, the fact that in Smethurst there had been a quarantining of the data was a matter to which your Honour Justice Gageler drew attention in Smethurst at paragraphs [136] to [137]. 

In those circumstances, without going to it, we rely on the reasons of Justice Kirby in Malubel Pty Ltd v Elder, the citation for which is in our oral outline.  His Honour in granting an interlocutory injunction there to prevent access to seize documents pending an application for special leave, reasoned that absent such an injunction it would be impossible for the officers of the Commonwealth to put out of their minds information which then came to their notice, and it would be impossible for them to ignore leads or inquiry and investigation which might then might be raised. 

But the plaintiff’s conduct here, both in the delay in commencing the proceeding and in choosing not to seek an interlocutory injunction, has given rise to that very situation.  In relation to the choice not to seek an interlocutory injunction, again, without going to it, may we draw attention to what was said by the Court in Day v Pinglen. 

One of the matters relied on there by the active respondent to resist a final injunction was the choice of the applicant – sorry, the appellant, not to seek an interlocutory injunction with the result that the building work at issue had been completed during the pendency of the various proceedings and the active respondent relying on that choice as a reason to resist the grant of a final injunction.  The Court at page 302 of the CLR described that submission as not without substance.

There was a countervailing consideration there, which was the need obviously to give an undertaking as to damages, as the price for an interlocutory injunction, which in Day v Pinglen could have been a very substantial thing because what was at issue was a development project, the delay of which could have cost potentially millions of dollars.

That is quite different from the circumstances at issue here.  Here, the choice by the plaintiff not to seek an interlocutory injunction where absent such an injunction it was the function of the AFP to progress its criminal investigations, and where the AFP has done so in part in reliance on the seized material, that is a significant factor pointing against the exercise of the discretion in the plaintiff’s favour.  So, for those reasons, quite apart from any question of power relating to the copied data, an injunction relating to both personal property and the copied data should be refused as a matter of discretion.

The final topic we would address orally concerns the basis for an injunction relied upon by the plaintiff in relation to the copied data.  On that topic, we make three submissions.

The first is that the injunction which is sought by the plaintiff is in terms broader than that favoured by the minority in Smethurst.  The injunction sought by the plaintiff makes no accommodation for the possibility of a valid warrant to permit retention of the copied – I am so sorry, reseizure of the copied data.  Certainly, the injunction sought by the plaintiff was not favoured even by the minority in Smethurst.

Secondly, the basis for the injunction sought is said to be that identified by your Honour Justice Gageler in Smethurst in paragraph [130], and your Honour Justice Gordon at paragraphs [183] and [186]. But a key aspect of both of your Honours’ reasoning was that an injunction in the exercise of this Court’s jurisdiction under section 75(v) of the Constitution could be issued even if it would not have been issued by a court of equity in the exercise of its non‑constitutional jurisdiction.

Th e proposition that a constitutional injunction, to use that language, might issue in favour of a person in the position of the plaintiff in Smethurst, where an ordinary equitable injunction would not, was rejected by the majority in Smethurst.  We would rely on the joint reasons at paragraphs [91] to [98], and the reasons of Justice Nettle at paragraphs [143] to [146].  It was also rejected though in dissent by your Honour Justice Edelman at paragraphs [229] to [233].

So, the notion that a constitutional injunction could be issued in favour of a person in the position of the plaintiff in Smethurst where an ordinary equitable injunction cannot, is contrary to the ratio of the decision in Smethurst, and the plaintiff has not sought leave to reopen Smethurst on this point.

The third and final point we would make is that focusing on the equitable jurisdiction, the reasons of the majority in Smethurst are likewise fatal to the plaintiff’s claim for an injunction concerning the copied data.  That is because both the joint reasons at paragraphs [67] to [85] and the reasons of Justice Nettle at paragraphs [154] to [161] concluded that none of the ongoing consequences to the plaintiffs of the past trespass was sufficient in Smethurst to enliven any power to grant a mandatory injunction to reverse the consequences of the trespass.

While there may be some differences in the reasoning of the majority Justices, the outcome in the case is binding in any case that is not reasonably distinguishable on the facts and we would draw your Honours’ attention to what was said on this point by Justice McHugh in Re Tyler;

Ex parte Foley (1994) 181 CLR 18 at pages 37 to 38 and the cases cited there. The plaintiff here points to no consequence to him which distinguishes his position from that of the plaintiffs in Smethurst.  For that reason, the outcome in Smethurst is controlling here.

Unless there are any questions, those are the additional oral submissions we would make on the topic of relief.

KIEFEL CJ:   Thank you, Mr Herzfeld.  Solicitor‑General for New South Wales.

MR SEXTON:   If the Court pleases.  Your Honours, my learned friend for the Commonwealth has taken your Honours through the test for contravention of the implied freedom.  Your Honours would appreciate that we do not make any submissions on the search warrants question and I do not think that I can usefully add to what he has said on that.

There is just one point that we would like to underline in that context, which is that the provisions in question, we would say, do not purport to regulate communication as such and are not aimed at its political content at all.  This is something that goes to the extent of the burden that is imposed, which we would say is not substantial in this case.  That is something that influences the application of the various steps, of all of the steps in the test for the contravention of the implied freedom. 

In our outline of oral argument, we have referred to the relevant authorities there and we have quoted from the judgment of the plurality in Brown to underline that fact, that that is particularly relevant – that is, the extent of the burden – to the application of the entire test in relation to the contravention of the implied freedom.

The other point that we would seek to make is that much of the conduct that is the subject of the provisions in question, particularly subsection (1), would not be protected by the implied freedom because it actually undermines the system of representative and responsible government.

We have given as an example subsection(1)(c)(iii) and (iv) and we could add to that (d)(ii) and (iii) and there may be some argument in relation to (d)(i), but in that context we would say that the meaning of the term “covert” in this context is to consciously conceal, as opposed to something that is simply private communication. 

So that it may well be that almost all of the conduct designated in subsection (1) falls into that category of conduct that would not be protected - communication that would not be protected by the implied

freedom because it actually undermines the system of representative and responsible government.

GAGELER J:   Are you saying you do not get to the second limb of the Lange test.

MR SEXTON:   We do not dispute I think, your Honour, here that there is some burden in some circumstances, but what we say is that the burden is not substantial and that in that situation that influences the application of the various limbs of the test.  Is that an answer to your Honour’s question?

GAGELER J:   I believe it is.

MR SEXTON:   Unless there are any other matters, your Honours, those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Solicitor‑General for South Australia.

MR WAIT:   If the Court pleases.  The parties disagree on the purpose pursued by the provision and its legitimacy.  That disagreement is at least in part informed by different constructions of the provisions that they each contend for.  In the absence of harm to Australia’s interests, the plaintiff says the provisions are not supported by the Commonwealth’s foreign interference purpose and instead illegitimately pursue the purpose of preventing any potential undisclosed or non‑transparent foreign influence over Australian political or governmental processes or over Australian democratic political rights or duties.

South Australia submits that to the extent that the provision, properly construed, requires persons engaging in conduct that may influence political, governmental or democratic processes on behalf of foreign principals to attribute that conduct to those foreign principals, then the provisions may be understood as pursuing the purpose of promoting transparency, whether or not they are also supported by the Commonwealth’s foreign interference purpose. 

Section 92.3(2) is plainly capable of being seen to pursue a transparency purpose.  This is because the notion of concealment or failure to disclose found in paragraph (2)(d) is expressly linked to the circumstances identified at paragraph (b), namely the “acting on behalf of” circumstances.

Various possible constructions of the offence contained in section 92.3(1) were canvassed in argument yesterday, and South Australia makes no submissions about the correct construction of the provisions.  It may be noted that some of the constructions canvassed proposed an operation of section 92.3(1) that might extend beyond a requirement that a person acting on behalf of a foreign principal disclose that fact to his or her audience.

However, at least insofar as section 92.3(1) requires a person acting on behalf of a foreign principal to attribute that conduct to the foreign principal, it may be regarded as pursuing a transparency purpose.  So, the extent of the provisions can be seen to pursue the purpose of promoting transparency with respect to engaging in political or governmental processes or exercising democratic or political rights or duties.  South Australia submits that that purpose is legitimate.

The legitimacy of a purpose of promoting transparency by requiring the attribution of influence in an electoral context is supported by the authority referred to yesterday by Justice Keane of Smith v Oldham.  Chief Justice Griffith observed that the weight to be attributed by electors to electoral material:

may be greater or less than would be attributed to those articles if the electors knew the real authors.

To like effect, Justice Isaacs said that:

Even when nothing is conveyed but advice or opinion, the identity of the person proffering it, if not withheld, might for various reasons seriously affect its weight and value in the minds of the electors.

His Honour went on to note by analogy that the testimony of a witness in court might be appraised differently if the witness’ true personality were known to the jury.

In Harper v Canada, the Supreme Court of Canada made similar observations in considering the validity of provisions that require third parties to identify themselves in electoral advertising.  The court unanimously upheld the validity of the provisions, holding that they supported informed voting.  The majority quoted Professor Aucoin:

Transparency, in short, advances an informed vote.  Secrecy does not.  With disclosure, voters are made aware of . . . who stands behind electoral communications.

There is no reason, in principle, South Australia submits, why a law that requires attribution of influence beyond an electoral context and serves a purpose of promoting transparency in relation to engaging in political or governmental processes, or exercising democratic or political rights or duties, might not equally serve a legitimate end.

Just as electors may be influenced in their electoral choices if they know the real circumstances underlying assertions of fact, opinion and advice, including sources of those assertions, so too may ministers and other executive decision makers.  For example, the exercise of a discretion concerning a land use approval by a State official may be relevantly informed by an acknowledgment that a submission received was made on behalf of a foreign principal.

Further, the absence of such an attribution may give the decision‑maker a degree of confidence that submissions received are not made on behalf of foreign principals.  An understanding of who stands behind a particular communication may also be seen to be important to representative functions performed by Members of Parliament and political parties.  Paragraph 13 of his reply, the plaintiff accepted:

the significance of transparency to Australia’s system of representative and responsible government . . . at a level of generality –

However, it is unclear on what basis the plaintiff suggests that the concept of disclosure of influence found in the provisions may be said to be nebulous.  On the contrary, the provisions are expressly tied to the influencing of political/governmental processes, or democratic rights and duties.

Again, at paragraph 13 of his reply, the plaintiff submitted that the significance of a transparency purpose may lessen when attached to matters of potential influence upon a range of processes or the exercise of a range of rights or duties.  However, even if this were to be accepted – that the significance of the transparency purpose was lesser outside the context of an electoral regulation – it does not follow that the purpose might thereby become illegitimate. 

The test of compatibility is only concerned to identify whether a purpose impedes our system of representative and responsible government.  If a purpose does not impede that system, it is legitimate.  Any lessening of the importance of the transparency purpose would only become relevant at the third stage of the inquiry in considering the adequacy of balance. 

A purpose that promotes transparency – a foreign influence in connection with government - the political or governmental processes or the exercise of democratic or political rights or duties – preserves and enhances our constitutional and prescribed system of government.  That purpose is

necessarily legitimate.  Unless the Court has any questions, those are the submissions for South Australia.

KIEFEL CJ:   Thank you, Mr Solicitor.

MR WAIT:   Thank you.

KIEFEL CJ:   Mr Walker, reply?

MR WALKER:   Very briefly, your Honours.  With respect to our friend from New South Wales, we would simply say this, that taking as the example, subparagraphs (1) and (2), at paragraph (c) at subsection 92.3(1), of course my friend’s provision aims at conduct which must, of necessity, have a capacity to influence what I will call politics.  That is the whole point of the possible element of criminality being supplied by recklessness as to whether the conduct will influence a political or governmental process, et cetera, or influence the exercise of an Australian democratic or political right or duty. 

If that is so, then it is obvious, with respect, that these are provisions that seek to control any communications by which such influence may occur and to control them by the creation of a punishable offence.  That is the means by which we justify what we put in‑chief, to which our friends from New South Wales were responding, concerning the explicit or ex facie addressing of these offence provisions to political communication.

We accept, as a matter of analysis, that if the word “covert” is understood in some narrower or more focused sense, it may be – by some such phrase of attempted synonym or explanation as my friend for New South Wales ventured – that is, consciously concealed – we accept, that as a matter of analysis, that is the nature of the provision concerning which the constitutional questions may arise and, if they arise, have to be addressed.  It is, of course, the case that the more narrow and focused the notion of “covert” becomes, the more a necessarily nefarious character is given to the conduct – exactly the same as one has with the notion of deception.

Now, that in relation to political discourse does produce some difficult problems that may not be critical and may not even by useful for present purposes.  Justice Keane raised one of them, namely, the notion of lying in political campaigning or political discussion, and by “lying” I mean telling an untruth knowingly, the ordinary meaning of the word “lie”. 

As your Honours appreciate, as a matter of historical policy, Parliament has refrained – with the assistance of an interpretation by this Court – from legislating comprehensively to criminalise lying in political campaigns.  Lies about certain aspects of political and electoral matters have long been criminalised, but not across the board, particularly with matters that would necessarily require a court adjudicating the existence of a lie venturing in upon most invidious matters for the judicial power to adjudicate, namely matters of perception of social mischief calling for the application for particular kinds of policy. 

Those difficulties, which are peculiar to the conjunction or interaction of the judicial power and the political processes do not, in our submission, do anything to lessen the propensity of these provisions to infringe the constitutional protection, unless “covert” is, as it were, deceptive concealment, that is a conscious concealment with a view to permitting a false state of affairs to be engendered in the minds of an audience.  Unless it is of that kind, then this is indeed a provision which overreaches by extending into the realm of merely private communication chosen not to be disclosed to the public.

GAGELER J:   So the real thrust of your argument is one of which the Americans would call “overbreadth”, is it not?

MR WALKER:   Yes, it is, and for the subsection (1) offence, it comes down to “covert”.

GAGELER J:   Yes.

MR WALKER:   It is the not unfamiliar position of, at this stage in a person’s putative affectation by a criminal law exploring the content by way of meaning of critical terms.

GAGELER J:   Without being too simplistic, I hope, if you read “covert” broadly, you say you win; if you read “covert” narrowly, then there is no overbreadth problem.

MR WALKER:   That is a useful simplification, with respect.  I do not intend by my assent to it to dispense with everything I have advanced in support of that, but yes, that is the way in which that part of the argument proceeds.

GORDON J:   Can I ask one question then?

MR WALKER:   Sorry, your Honour.

GORDON J:   The overbreadth then in relation to subsection (2)?

MR WALKER:   The overbreadth in relation to subsection (2) is perhaps semantically more straightforward for me to put because unlike the word “covert”, which we know has among its idiomatic meanings that which is necessarily nefarious, conceals and fails to disclose, do not quite so straightforwardly indicate only that which is nefarious.

It is for those reasons that for the subsection (2) offence where once one overcomes the ugliness of calling a person a target – I mean the person is only a target perhaps in the same sense as they are a person of potential influence or a conduit of communication – it is an instrumental way for one person to think about another but there is nothing nefarious about a person being a target – the English here is the person is reckless as to whether the conduct will influence another person in relation to a governmental process or the target’s exercise of a democratic or political right or duty.  Those are ugly words to describe what would be true of any of us seeking to persuade a friend to change their vote.

Now, in relation to overbreadth or overreach then in paragraph (2)(d), it is probably more straightforward to point to the fact that concealing or failing to disclose need not always be nefarious, that is it even more obviously extends to the keeping of private those things which are appropriately private and it is for those reasons that subsection (2) proceeds perhaps more straightforwardly in overreach than subsection (1).

EDELMAN J:   Mr Walker, is subparagraph (d) the only respect in which the practical operation of subsection (2) would be broader than the practical operation of subsection (1)?

MR WALKER:   Yes, because otherwise it is narrower by requiring the pivot of a target.  They are very considerable overlap which is no doubt why both offences are mentioned in the warrants for what appears to be the same conduct.

EDELMAN J:   But to the extent that your argument then rests upon invalidity of subsection (2) where subsection (1) might be invalid, it then comes down to the failure to disclose?

MR WALKER:   It does.  Could I remind your Honours about “covert”.  “Covert” is a word that has, if I can put it this way, a decidedly non‑nefarious meaning in an area with which we are concerned.  Surveillance to produce evidence of espionage is covert surveillance.  That is the whole point.  So “covert” is not a word which naturally in this particular context means something wrong or to be deprecated. 

Covert police techniques are greatly to be approved and are hugely to the public benefit, so it is not to be supposed that there is a straightforward reason immediately to shrink “covert” down into things which are of their nature against the commonweal, which is an argument in particular from

our friends for South Australia to which we would offer that by way of reply.

In relation to what I will call the Smith v Oldham point, it is one thing to observe, as with great respect one would not need the judicial power to inform one, that information of a desirable kind is added to political speech by understanding connections and affiliations and sources, because that is true not only in political discourse.  That is why, conventionally, for example, in a currently topical way, scientific research in many milieus nowadays require disclosure of funding.

So, there can be no question about the desirability, intellectually and socially, of correct and informative attribution of connections or sources, a desirability that is enhanced with the significance or importance from the point of view of the speaker and the audience of the occasion of the message and the object of the communications, such as an election.

But that is, we submit, a world of difference constitutionally from considering a requirement sanctioned by criminal punishment that all such connections and attributions be revealed.  It is one thing to talk about the enhancement of information and, thus, the desirability of supply of attribution, it is another thing to burden a freedom of political communication by, in effect, saying you can only deliver your message if you deliver the following details of that which preceded your decision to deliver it.

It is for those reasons, in our submission, that there remains the burden, notwithstanding what is urged against us by the interveners in relation to the high desirability of avoiding foreign interference.  We would particularly observe Smith v Oldham being a very good example of this, that it is not a matter of the provenance of the – or the ultimate provenance of the attributed source or affiliation of a political communication that really matters.  It does not matter whether it is foreign or local.  The high desirability of knowing more about the messenger and the source of the message remains the same.

In our submission, it is for those reasons that unless and until the inappropriate step were taken of regarding foreign influence as per se wrong, then in our submission the notion of attribution, forced attribution, is just as wrong in relation to putative foreign interference as it would be with putative domestic interference or influence.  May it please your Honours.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 10.44 AM THE MATTER WAS ADJOURNED