A2 v Australian Crime Commission

Federal Court of Australia (Full Court)|2006-10-17|Before: Jacobson JJ

THE COURT: 1 This appeal concerns the validity of two search warrants issued by the second respondent, a chamber magistrate of the Local Court of New South Wales ('the Magistrate'). The warrants were issued under Part 1AA of the Crimes Act 1914 (Cth) ('the Crimes Act') on the application of members of the staff of the first respondent, Australian Crime Commission ('the Commission'). The warrants were sought for the sole purpose of assisting a special investigation being undertaken by the Commission under the Australian Crime Commission Act 2002 (Cth) ('the Commission Act'). The appellant contends that Part 1AA of the Crimes Act does not authorise the issue of search warrants for that purpose. 2 The appellant commenced a proceeding in the original jurisdiction of the Federal Court seeking declarations that the warrant applications were ultra vires, unlawful and of no force and effect and that the decisions of the Magistrate to issue the warrants were therefore unlawful and of no force and effect. The appellant also claimed declarations that the warrants themselves were therefore ultra vires, void, unlawful and of no force and effect and that the seizure, use and communication of materials obtained by the warrants was and is unlawful. On 16 February 2006, a judge of the Court ordered that the proceeding be dismissed with costs. By notice of appeal filed on 8 March 2006, the appellant appealed to the Full Court from the orders made by the primary judge.

The Crimes Act 4 Section 3E of the Crimes Act, which is in Division 2 of Part 1AA, deals with the circumstances when search warrants can be issued. Section 3E(1) relevantly provides that an issuing officer, as defined in s 3C, may issue a warrant to search premises if the officer is satisfied that there are reasonable grounds for suspecting that there is any evidential material at those premises. The Magistrate is an issuing officer within the meaning of s 3C. The term evidential material relevantly means a thing relevant to an indictable offence. That latter phrase is defined in s 3 but its precise terms are not presently relevant. Under s 3E(5), if an issuing officer issues a warrant to search premises, the officer is to state certain things and matters in the warrant concerning its effect. 5 Under s 3F(1), a warrant that is in force in relation to particular premises authorises the executing officer to enter those premises and to search the premises for the kinds of evidential materials described in the warrant. In addition, under s 3F(2), a warrant that is in force also authorises the executing officer to seize other things found in the premises that the executing officer believes, on reasonable grounds, to be evidential material in relation to an offence to which the warrant relates, evidential material in relation to another indictable offence or evidential material or tainted property within the meaning of Proceeds of Crime Act 2002 (Cth) ('the Proceeds of Crime Act'). However, seizure of such other things is authorised only if the executing officer believes, on reasonable grounds, that such seizure is necessary to prevent their concealment, loss or destruction or their use in committing an offence. 6 Section 3D(1) of the Crimes Act expressly provides that Part 1AA is not intended to limit or exclude the operation of another law of the Commonwealth relating to the search of premises or the seizure of things. To avoid any doubt, it is declared in s 3D(2) that, even though another law of the Commonwealth provides power to do one or more of those things, a similar power conferred by Part 1AA may be used despite the existence of the power under the other law.

The Commission Act 7 The Commission was established by the Australian Crime Commission Establishment Act 2002 (Cth) ('the Commission Establishment Act'). The Commission Establishment Act made extensive amendments to the National Crime Authority Act 1984 (Cth) ('the Authority Act'). The Commission was given the functions of the National Crime Authority ('the Authority'), the Australian Bureau of Criminal Intelligence and the Office of Strategic Crime Assessments. The functions of the Commission include the collection of criminal information and intelligence, the undertaking of intelligence operations and the investigation of federally relevant criminal activity, as that term is defined in s 4 of the Commission Act. 8 Under s 7C of the Commission Act, the Board of the Commission may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective. 9 The Commission is not a prosecuting authority. Rather, it is an investigative authority. The functions of the Commission, as provided by s 7A of the Commission Act, include the following: · to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence; · to undertake intelligence operations; · to investigate matters relating to federally relevant criminal activity; · to provide reports to the Board on the outcomes of those operations or investigations; · to provide strategic criminal intelligence assessments to the Board; · to provide advice to the Board on national criminal intelligence priorities. Under s 12, where the Commission, in carrying out an intelligence operation or an investigation, obtained evidence of an offence that would be admissible in a prosecution for the offence, the chief executive officer of the Commission must assemble the evidence and give it to a relevant law enforcement agency or prosecution authority. Doubtless, it would then be a matter for the relevant law enforcement agency or prosecuting authority to make such use as it is advised of the evidence so given to it. 10 Section 22 of the Commission Act deals with search warrants. Under s 22(1), an eligible person, as defined in s 4, may apply to an issuing officer, as so defined, for the issue of a warrant under s 22(2) if, relevantly: · the eligible person has reasonable grounds for suspecting that there may be upon or in any premises a thing or things of a particular kind connected with a special Commission investigation (referred to as things of a relevant kind); and · the eligible person believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed. 11 Under s 22(2), the issuing officer may issue a warrant authorising any person named in the warrant: · to enter upon specified premises; · to search the premises for things of the relevant kind; and · to seize any things of the relevant kind found upon or in the premises and deliver things so seized to any person participating in the Commission's special investigation. 12 Under s 22(5), a warrant issued under s 22 must, relevantly: · include a statement of the purpose for which the warrant is issued, which shall include a reference to the Commission's special investigation and with which the things of the relevant kind are connected; · include a description of the kind of things authorised to be seized. 13 Section 22(10) provides that nothing in s 22 affects a right of a person to apply for, or the power of a person to issue, a warrant, being a right or power existing otherwise than by virtue of s 22. Thus, s 22(10) complements s 3D(2) of the Crimes Act.

THE WARRANTS IN QUESTION 14 On 13 May 2003, the Board of the Commission made a determination pursuant to s 7C of the Commission Act. The determination is termed 'the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003' ('the Determination'). The special investigation authorised by the Determination extends to activities that may have involved the commission of offences ('the Relevant Offences') against: · s 29D of the Crimes Act, · ss 134.2(1) and 400(4) of the Criminal Code Act 1995 (Cth), · s 82 of the Proceeds of Crime Act 1987 (Cth). There is no challenge to the validity of the Determination. 15 The Magistrate issued two warrants on 8 June 2005. The first warrant authorised the executing officer to enter and search residential premises occupied by the appellant and to seize, relevantly, evidential material relating to the commission of the Relevant Offences. 16 The second warrant authorised the executing officer to enter and search certain business premises occupied by a group of companies of which the appellant was a director and to seize evidential material relating to the commission of one or more of the Relevant Offences. Both warrants were executed on 9 June 2005. Material was seized pursuant to the warrants, including material that was the property of the appellant. 17 It is common ground that the two warrants in question were applied for and the warrants were executed in order to assist the Commission's special investigation pursuant to the Determination. That fact is critical to the question raised in the appeal.

THE QUESTION IN THE APPEAL 18 The appellant contends, in essence, that, where the sole purpose, for which an application is made for a search warrant, is to assist in connection with a special investigation by the Commission, the only power to apply for such a warrant is that conferred by s 22 of the Commission Act. That is to say, s 3E of the Crimes Act does not authorise the issue of a search warrant where the sole purpose for which the warrant is sought is to assist in connection with a special investigation by the Commission. Sections 3D(2) of the Crimes Act and 22(10) of the Commission Act have similar effects. The effect of those provisions is critical to the question raised by the appeal. 19 The appellant accepts that the question raised by the appeal is governed by the decision of the Full Court of the Federal Court in Ryder v Morley (1987) 16 FCR 257. The appellant does not contend that Ryder v Morley can be distinguished. However, the appellant says that this Court should decline to follow that case on the basis that it was wrongly decided. 20 Thus, there are two issues as follows: · whether the construction of s 22 of the Commission Act and ss 3E and 3D of the Crimes Act contended for by the appellant is correct; · if so, whether the Court should decline to follow Ryder v Morley.

Construction of the provisions 21 Each of s 3E of the Crimes Act and s 22 of the Commission Act confers power on specified persons to apply for the issue of warrants to search premises and confers power on specified issuing officers to issue warrants to search premises. However, while the powers overlap, the prerequisites for their exercise differ. The question is whether that overlapping has the consequence of restricting the exercise of the powers conferred by s 3E. 22 The conferring of investigative powers by Parliament involves striking a balance between the beneficial purpose of detecting and preventing offences, on the one hand, and the equally beneficial purpose of regulating incursions into the personal liberties of the subject, on the other hand. The importance of the protection of the personal liberties of the subject gives rise to the traditional requirement, in the construction of statutes authorising incursions on such liberties, that the extent of the permitted incursion be stated with compelling clarity. It is of critical importance to the existence and protection of personal liberties that the circumstances in which a person may search private premises should be strictly confined, plainly stated and readily ascertainable (Donaldson v Brumby (1982) 40 ALR 525 at 526). If there is any ambiguity as to the extent of a power that would interfere with the personal liberties of a subject, the ambiguity should be resolved in favour of the subject. Where Parliament imposes safeguards for personal liberties in the exercise of search powers, those safeguards must be strictly observed. 23 Only an eligible person may apply for a warrant under s 22(2) of the Commission Act. An eligible person is defined by s 4 of the Commission Act as either an examiner appointed under s 46B(1) of the Commission Act or a member of the staff of the Commission who is also a member of a police force. A person must not be appointed as an examiner unless the person has been enrolled as a legal practitioner for at least five years. Thus, there is an express limitation on the class of persons who can apply under s 22. 24 Further, the eligible person must believe, on reasonable grounds, that, if a summons were issued for the production of the relevant thing, the thing might be concealed, lost, mutilated or destroyed. Under s 28 of the Commission Act, a summons for production of documents and things may be issued to a person. That would be the normal means whereby the Commission would obtain evidence. Section 22 is therefore an exceptional power. 25 An issuing officer must be satisfied as to the requirement that there be a risk that a thing might be concealed, lost, mutilated or destroyed. That is the effect of s 22(3): an issuing officer must not issue a warrant unless an affidavit has been furnished setting out the grounds upon which the issue of the warrant is being sought, the issuing officer has been given such further information as the issuing officer requires concerning the grounds and the issuing officer is satisfied that there are reasonable grounds for issuing the warrant. 26 Under s 22(5), the warrant must state certain things and include certain information. Thus, it must include a statement of the purpose for which the warrant is issued. That statement must include a reference to the special operation or investigation undertaken by the Commission. Further, the things of the relevant kind, the seizure of which is authorised by the warrant, must be connected with the operation or investigation undertaken by the Commission. In addition, the warrant must include a description of the kind of things authorised to be seized. Finally, the warrant must state the time of day or night when entry is authorised and must specify a date upon which the warrant ceases to have effect, being a date not later than one month after the date of issue. Those are safeguards for the protection of the personal liberties of the subject. 27 Section 3E also states safeguards, by way of prerequisites that must be satisfied before a warrant may be issued. The prerequisites for a valid warrant are similar to, but not identical to, those set out in s 22, which are summarised above. A requirement of s 3E(1) is that the issuing officer must be satisfied that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the relevant premises. Under s 3E(5), the issuing officer must state in the warrant the offence to which the warrant relates and the kinds of evidential material that are to be searched for under the warrant, as well as a description of the premises to which the warrant relates. However, under s 3E(6), a warrant issued under s 3E will also authorise the seizure of things other than the kinds of evidential material that are to be searched for, if the executing officer believes, on reasonable grounds, that seizure of that thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence. 28 Thus, while, under both regimes, there is provision for seizure of a thing to prevent its concealment, loss or destruction, a prerequisite for the issue of a warrant under s 22 of the Commission Act is that the eligible person must believe, on reasonable grounds, that the subject of the warrant might be concealed, lost, mutilated or destroyed if a summons were issued for its production. On the other hand, a warrant under s 3E of the Crimes Act may be issued if the issuing officer is satisfied that there is or will be within the next 72 hours any evidential material at the relevant premises. 29 It follows that there are circumstances in which a warrant could be issued under s 22 but no warrant could be issued under s 3E. It also follows that there are circumstances when a warrant could be issued under s 3E but could not be issued under s 22. However, as a matter of logical analysis of the language of the two provisions, there are also clearly circumstances where a warrant could be issued under either to search the same premises for the same things. The question is whether, if the sole purpose for obtaining a warrant is to assist in a special investigation of the Commission, a warrant under s 3E is not authorised. 30 There is much to be said for the proposition that, apart from the provisions of s 3D(2) and s 22(10), Parliament may be taken to have evinced an intention that s 22 would be an exhaustive statement of the circumstances in which a warrant could be issued to assist a special investigation. That is to say, the investigative function of the Commission may call for the seizure of things where an eligible person believes, on reasonable grounds, that there is a risk that the thing might be concealed, lost, mutilated or destroyed. However, where there are no reasonable grounds for believing that such a risk exists, the searching of premises by the Commission is not authorised and the Commission must rely on its power to issue a summons. In other words, the more general operation of the power under the Crimes Act does not cut down the prerequisites of the Commission Act in the specific circumstances to which the latter applies. Where the provisions of s 22 apply, the only power of interference with the personal liberties of the subject by searching is that conferred by s 22. That power is subject to the prerequisites of s 22 and if those prerequisites are not satisfied, the power cannot be exercised. 31 However, the proposition is difficult to maintain in the light of s 22(10) and s 3D(2). If s 22 had not been enacted, there would be no basis for contending that the power conferred by s 3E could not be exercised. The appellant's contention is that s 22 should be given a construction that cuts down the extent of the power conferred by s 3E. That is to say, an effect of s 22 is to derogate from the power conferred by s 3E. Section 22(10), however, says quite the opposite. Thus, nothing in s 22 is to affect the right of a person to apply for a warrant that exists otherwise than by virtue of s 22, such as a right that exists by virtue of s 3E. Similarly, by the operation of s 22(10), nothing in s 22 is to affect the power of a person to issue a warrant under a power existing otherwise than by virtue of s 22, such as a power existing by virtue of s 3E. Section 3D(2) has much the same effect. Thus, even though s 22, being another law of the Commonwealth, provides power to search premises and seize things, a similar power conferred by Part 1AA, namely, s 3E(1), may be used despite the existence of the power under s 22 of the Commission Act to apply for and to issue warrants relating to the search of premises and seizure of things. 32 Sections 22(10) of the Commission Act and 3D(2) of the Crimes Act make clear that the power conferred by s 3E is not to be cut down in any way by the operation or the existence of s 22. It follows that the construction of those provisions contended for by the appellant must be rejected.

Ryder v Morley 33 In the light of the conclusion reached concerning the construction of the provisions, it is not strictly necessary to consider whether Ryder v Morley should be followed. However, since the matter was argued, it is appropriate to say something on that question. 34 Ryder v Morley was concerned with the interaction between s 22(10) of the Authority Act, which was in the same terms as s 22(10) of the Commission Act, and s 10(1) of the Crimes Act, which was the precursor of Part 1AA of the Crimes Act. While the legislative provisions are different, and there have been minor amendments to the language of the provisions, the appellant accepts that none of the differences or changes affects, or in any way reduces, the authority of Ryder v Morley. 35 The submission of the applicant in Ryder v Morley was that a search warrant to be executed for the purposes of the Authority must be issued pursuant to, and subject to, the restrictions of the Authority Actand that s 10 of the Crimes Act could not be prayed in aid of such a warrant. In the present context, that proposition would be that a search warrant to be executed for the purpose of assisting the Commission must be issued pursuant to, and subject to the restrictions of, the Commission Act, and Part 1AA of the Crimes Act cannot be prayed in aid of such a warrant. At first instance in Ryder v Morley (1986) 12 FCR 438 at 441, Toohey J accepted that s 22(10) of the Authority Act means what it says and that there is no justification for reading it down. Toohey J accepted that the limitations in s 22 apply when the Authority (the Commission in the present circumstances) relies upon a special investigation that it is conducting to obtain a search warrant in the terms of that section. However, if an eligible person could satisfy an issuing officer, in terms of s 10 (presently s 3E) of the Crimes Act, that a search warrant was justified, the issuing officer could issue a warrant under that section. His Honour considered there was nothing uncertain or ambiguous about s 22(10) and that the provision was designed for the sort of situation that arose in that case (at 441). 36 On appeal, the Full Court accepted the same argument. The Full Court observed that the right to apply for a warrant in s 22 is limited to matters into which the Authority (the Commission, in this case) was conducting a special investigation. Section 22 is more detailed, requires more specific information and is in general expressed to be more protective of the rights of the subject than s 10 (now s 3E) of the Crimes Act. The Full Court noted the argument that, having regard to the relevant parts of s 22 and other provisions of the Authority Act that are protective of individuals being investigated, it could not have been intended that the protection could be subverted by reliance on s 10 of the Crimes Act. However, the Full Court concluded that it should not be assumed that s 22 negatives the operation of s 10 and that the contrary was expressly provided for in s 22(10) (Ryder v Morley (1987) 16 FCR 257 at 263-4). 37 Unless an error in construction of a statute is patent or has produced unintended and perhaps irrational consequences not foreseen by the court giving an earlier decision, the earlier decision should stand so far as a later court, equal in the judicial hierarchy, is concerned. It is only on rare occasions that an intermediate appellate court should allow an issue concerning the construction of a statute to be reopened, if the effect could be to produce uncertainty, disruption to the conduct of affairs and a sense of grievance in those who may subsequently receive treatment less favourable than that received by others under the same statute (see Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 at 602-603, at [27] - [28]). 38 It is significant that persons may have ordered their affairs on the basis of an earlier judicial decision. There is good reason for concluding, from the circumstances of this case, that the Commission has acted on the basis that Ryder v Morley is good law. Even if we had reached a different conclusion on the construction of the provisions, we would have been very reluctant to depart from Ryder v Morley, a decision published nearly 20 years ago.

CONCLUSION 39 The appeal should be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Conti & Jacobson.

Counsel for the Appellant: Mr B Walker SC with Mr A Thomas

Solicitor for the Appellant: Robinson Legal

Counsel for the First Respondent: Mr L Robberds QC with Dr S Donoghue

Solicitor for the First Respondent: Australian Crime Commission

Date of Hearing: 21 August 2006

Date of Judgment: 17 October 2006

National Crime Authority Act 1984(Cth)

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