Background
The following summary of the background facts is taken mainly from the reasons of the primary judge. These facts are not in dispute.
Freeman is a medical practitioner. As a result of certain search warrants which were issued under the Crimes Act 1958 (Vic), members of the Victoria Police seized 168 blank, but signed, medicare assignment forms. On 27 October 1994, after it appeared to the police officers that the medicare forms could constitute evidence of offences by Freeman under the Health Insurance Act 1973 (Cth) ("the Health Insurance Act"), they informed officers of the Commission about the seizure. On 28 October 1994, after considering the seized forms and certain other evidence provided by the police officers to the Commission, the Commission's Acting Manager of Investigations requested an authorisation by the Managing Director of the Commission for the exercise of investigative powers under Part IID of the Health Insurance Commission Act. The request was for an "ongoing investigation" into what was described as suspected multiple offences by Freeman "against s 128A and/or s 128B" of the Health Insurance Act and possible offences under s 86(1)(a) of the Crimes Act 1914 (Cth).
On 2 November 1994, an authorisation was issued pursuant to s 8L(1) of the Health Insurance Commission Act authorising the exercise of powers under Part IID of the Health Insurance Commission Act "…in connection with an investigation into the possible commission of relevant offences (within the meaning of the Act) by Dr Jack Freeman."
Both before and after the authorisation, officers of the Commission and of the Victoria Police acted in conjunction in relation to the alleged offences against the Health Insurance Act. In due course, Freeman was charged with 519 offences. The charges related to common law offences, offences against the Crimes Act 1958 (Vic), the Drugs Poisons and Controlled Substances Regulations 1995 (Vic) and the Health Insurance Act. The charges in relation to the Health Insurance Act were in respect of alleged contraventions of s 127(1)(a) (150 charges), s 127(1)(b) (150 charges) and s 128B (163 charges). The informant, a State police officer, brought the charges in relation to the alleged contraventions of the Health Insurance Act pursuant to s 13 of the Crimes Act 1914 (Cth).
Proceedings for the committal of Freeman for trial on the 519 charges were commenced in the Magistrates' Court at Melbourne.
During the committal proceedings the informant sought to rely on the 168 medicare forms which had been seized by a member of the Victoria Police when executing a search warrant under s 465 of the Crimes Act 1958 (Vic). The medicare forms were an important part of the evidence required to establish the alleged contraventions of ss 127 and 128B of the Health Insurance Act.
Freeman objected to the tender of the forms on the basis that the seizure had been unlawful. He contended that a search warrant could not validly issue under s 465 of the Crimes Act 1958 (Vic) to obtain evidence to establish a breach of Commonwealth law. The magistrate presiding over the committal proceedings accepted this submission and held that the warrant was invalid. The magistrate ordered the return of the seized medicare forms to Freeman, but granted a stay of 14 days to enable the Director of Public Prosecutions (Vic) to appeal against her order. The primary judge observed that the magistrate's order to return the medicare forms may have been beyond power as the magistrate was not sitting in a judicial capacity and there was no properly constituted civil action in which such an order could be made. However, the point is not relevant to the issues in the present proceeding.
Officers of the Commission became concerned that the return of the forms to Freeman would result in the loss of important evidence which was required for the prosecution of Freeman for contraventions of the Health Insurance Act. Corbett was requested to issue a search warrant under the Health Insurance Commission Act to seize the forms "from the Victoria Police at Flemington so the charges could proceed". In due course Corbett received advice from Hannan who he described as "the Commission's regular legal adviser on matters relating to investigations and prosecutions". Hannan initially advised proceeding under s 8P of the Health Insurance Commission Act. Corbett followed that course and a member of the Victoria Police who had possession of the medicare forms handed them to Corbett.
Hannan then began to have doubts about the correctness of using a notice under s 8P as the means of taking possession of the medicare forms. On 11 November 1996, he advised Corbett of his doubts, and recommended that the medicare forms should be returned to the Victoria Police as soon as possible. This was done. The next morning Corbett conferred with Hannan. Hannan drafted an application for the issue of a search warrant under s 8Y(1) of the Health Insurance Commission Act and also drafted a search warrant. On 12 November 1996, Corbett made application to the third respondent who issued a search warrant in the form drafted by Hannan. It is this warrant which the applicant now seeks to have declared invalid, void and of no effect. The warrant was then executed by Corbett at the Flemington Police Station. Corbett again took possession of the medicare forms.
The application by Corbett for the search warrant stated that:
"The search warrant is sought in connection with an investigation that the Commission is conducting in the performance of its functions and in respect of which the Managing Director of the Commission, acting under Section 8L(1) of the Act, has authorised the powers under Part IID of the Act to be exercised…".
The application outlined the matters leading up to the application, including the order made by the magistrate for the 168 forms to be returned to Freeman.
The undisputed evidence before the primary judge was that the search warrant was obtained by Corbett, as an officer of the Commission, for the purpose of ensuring that the forms would be available for use in the prosecution of Freeman for the contraventions of the Health Insurance Act with which he had been charged.
On learning of these events, Freeman commenced a proceeding in the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) claiming that the search warrant was invalid on a number of separate grounds. The only ground relevant for present purposes is that the search warrant was obtained for an improper purpose. The primary judge summarised the two improper purposes relied upon as follows:
"The first is that the search warrant was issued so that the medicare forms could be retained to assist the Director of Public Prosecutions (Vic) in proceedings against the applicant. The second, which is related to the first, is that the search warrant was issued to circumvent the order made by the Magistrate to return the medicare forms to the applicant so that the Victorian Police retain access to them. Each purpose is said to be improper because it is not a purpose for which a search warrant can be obtained under s 8Y of the Health Insurance Commission Act."
Routine directions for the preparation of the case for trial required Corbett and the Commission to give discovery. In their List of Documents they asserted a claim for legal professional privilege in respect of documents that recorded legal advice, relating to the issue of the search warrant, given to them by Hannan. Freeman accepts that ordinarily those documents would be privileged. However, he contends that because the search warrant was obtained for improper purposes, any document which records advice in furtherance of such purposes cannot be privileged.
Freeman's proceeding was fixed for trial before the primary Judge on 30 July 1997. The parties filed and served their affidavit evidence and outlines of their submissions prior to the hearing. Freeman issued a Notice of Motion dated 6 May 1997 seeking an order that the documents recording the communications (for which privilege had been claimed) between Hannan and the Commission or Corbett be produced for inspection.
The primary judge dealt with the motion on the basis of the affidavits that had been filed by the parties on the substantive application. His Honour found, on a prima facie basis, that:
· on the evidence before him, the investigation had concluded with the bringing of charges for offences under the Health Insurance Act;
· as there was no longer an investigation on foot, it was not a legitimate use of s 8Y of the Health Insurance Commission Act for Corbett to purport to use the Commission's investigative power to obtain the issue of a search warrant for the purpose of seizing evidential material;
· Corbett was cognisant of those matters;
· accordingly, a sufficient case of deliberate abuse of statutory power had been made out in accordance with the requirements stated in Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500 and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
His Honour ordered that the Commission and Corbett serve on Freeman a copy of each of the documents in respect of which legal professional privilege was claimed. The Commission and Corbett have applied for leave to appeal from his Honour's orders and if leave is granted, for orders that the appeal be allowed, the decision of his Honour be set aside and that Freeman's notice of motion for inspection of documents be dismissed with costs.
In order to appreciate the issues arising on the application it is first necessary to consider the relevant provisions of the Health Insurance Commission Act.