WIGNEY J:
1 On 15 September 2016, the Court handed down a judgment which resolved a dispute between Mr Allen Caratti and the Commissioner of the Australian Federal Police concerning the issue and execution of various search warrants under the Crimes Act 1914 (Cth): see Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132. The parties were directed to prepare short minutes of order to give effect to the relevant findings and conclusions in the judgment. The parties were able to reach an agreement in respect of most of the orders, including an appropriate order concerning costs. Two relatively minor issues remain to be resolved.
2 The first issue concerns the terms upon which the Commissioner is able to retain and use copies of certain data that was stored on the electronic devices that were found to have been unlawfully seized. Mr Caratti had sought an order requiring the Commissioner to return the unlawfully seized devices. The Court found that the devices should be returned, but not before the Commissioner had an opportunity to interrogate the devices to ascertain whether any data on them satisfied the three conditions in the warrant. If data which satisfied the three conditions in the warrant was located on the devices, the Commissioner would be entitled to take an image or copy the data on the device in accordance with s 3L(1A) of the Crimes Act 1914 (Cth): see Judgment at [474] and [475].
3 It would appear that after seizing the relevant devices the Commissioner made images or copies of all the data stored on them. When the proceedings were commenced, however, the Commissioner gave an undertaking not to inspect the copied data until the proceedings were resolved. Consistent with the Court's findings, the parties have agreed on orders which enable the inspection and, if appropriate, retention of the copied data. The issue between the parties concerns the purposes for which the retained items may be used and retained going forward.
4 The Commissioner contends that the copied data should be able to be retained and used for any of the purposes referred to in s 3ZQU of the Crimes Act. The Commissioner has proposed an order which provides that, if and when he is satisfied that the data is not required, or is no longer required, for any of the purposes mentioned in s 3ZQU, or for any other judicial or administrative review proceedings, he must destroy the data or any reproductions of it.
5 Section 3ZQU provides as follows:
3ZQU Purposes for which things and documents may be used and shared
Use and sharing of thing or document by constable or Commonwealth officer
(1) A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing, investigating or prosecuting an offence;
(b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;
(c) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect;
(d) proceedings for the forfeiture of the thing under a law of the Commonwealth;
(e) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 or 105 of the Criminal Code;
(f) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(g) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;
(h) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
(i) investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006;
(j) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i);
(k) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;
(l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(2) A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.
(3) A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4) 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 (however described) of a document or other thing.
Sharing thing or document for use by State, Territory or foreign agency
(5) A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to:
(a) a State or Territory law enforcement agency; or
(b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory;
(d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002);
(e) proceedings for the forfeiture of the thing under a law of a State or Territory;
(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (l) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and
(b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Definition
(7) In this section:
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission; or
(c) the Independent Commission Against Corruption of New South Wales; or
(d) the Police Integrity Commission of New South Wales; or
(e) the Independent Broad‑based Anti‑corruption Commission of Victoria; or
(f) the Crime and Corruption Commission of Queensland; or
(g) the Corruption and Crime Commission of Western Australia; or
(h) the Independent Commissioner Against Corruption of South Australia.
6 It is necessary to also have regard to ss 3ZQX(1) and (2) of the Crimes Act which provide as follows:
3ZQX When things seized or documents produced under Division 2, 4 or 4B must be returned
When things seized under Division 2 or 4 must be returned
(1) If the Commissioner is satisfied that a thing seized under Division 2 or 4 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(aa) either:
(i) the thing may be retained because of an order under subsection 3ZQZB(3), or any other order under that subsection has been made in relation to the thing; or
(ii) the Commissioner has applied for such an order and the application has not been determined; or
(a) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(b) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
7 Mr Caratti submits that the Commissioner should not be permitted to retain and use the copied data for purposes as broad as those specified in s 3ZQU. Mr Caratti contends that s 3ZQU only applies in respect of things lawfully seized under the Crimes Act and therefore does not apply to data copied pursuant to an order made by the Court. In Mr Caratti's submission, the Commissioner is only in possession of the copied data because the Court exercised its discretion to permit him to retain the copied data for the purposes of investigating or prosecuting the offences to which the warrants related. In those circumstances, Mr Caratti submits that s 3ZQU does not apply and the Commissioner should be ordered to destroy the copied data if and when it is no longer required for that specific purpose. The Commissioner should not be able to retain or use it for any other purpose.
8 There is some merit in Mr Caratti's submission. Section 3ZQU does not strictly apply to data copied from the unlawfully seized devices pursuant to the regime established by the Court's orders. It is also correct to say that the basis upon which the Commissioner was permitted to inspect and copy the data stored on the unlawfully seized devices was the exercise of the Court's discretion not to order the return of unlawfully seized items.
9 Nevertheless, the preferable course is to exercise the Court's discretion in such a way as to permit the Commissioner to retain and use the copied data in accordance with the statutory scheme in ss 3ZQU and 3ZQX of the Crimes Act. There is no reason in principle why the permitted use and retention of the copied data should be on different and narrower terms than that which the statutory regime envisages. It is true, as Mr Caratti submits, that the authorities concerning the exercise of the discretion (conveniently summarised in Puglisi v Australian Fisheries Management [1997] FCA 846; (1997) 148 ALR 393 at 404-405) generally speak in terms of permitting the police to retain illegally seized items for the purpose of obtaining advice in respect of, or use in prosecution proceedings relating to, the offences the subject of the search warrant or warrants in question. It is tolerably clear, however, that those cases were decided well before the insertion of ss 3ZQU and 3ZQX into the relevant statutory scheme for search warrants. Those provisions only came into effect on 20 February 2010.
10 It is also correct that the Court's reasons for permitting the Commissioner to interrogate the unlawfully seized devices and copy the data, before returning the devices to Mr Caratti, focused on the public interest in allowing the police to investigate and prosecute serious criminal offences, balanced against the private interest of a citizen not being unlawfully deprived of goods. It was not said, at least directly, that the police should be permitted to use the documents for any other purpose or purposes. That issue was not the subject of any argument at the trial. The Court's reasons make it abundantly clear, however, that the inspection of the devices and the copying of any data should be done in accordance with s 3L(1A) of the Crimes Act. It was said that the police should, in effect, now be permitted to do what they could have done during the execution of the warrants if they had properly turned their minds to the terms of s 3L(3)(a) (or s 3F(1)(d)) of the Crimes Act. It would, in those circumstances, be appropriate to treat the copied data in effect as if it had been copied pursuant to s 3L(1A). A rational corollary of that is that the balance of the statutory scheme, including ss 3ZQU and 3ZQX, should also apply as if the data had been copied pursuant to s 3L(1A).
11 The discretionary considerations that were taken into account in permitting the Commissioner to inspect the devices and copy the data also militate towards allowing the police to retain and use the copied data for any of the purposes referred to in s 3ZQU, not for the limited purposes suggested by Mr Caratti.
12 In all the circumstances, it is appropriate to make the order dealing with the future permitted use and retention of any copied data (order 4) in the form proposed by the Commissioner, as opposed to the order proposed by Mr Caratti.
13 The second issue concerning the orders that needs to be resolved concerns the dismissal of Mr Caratti's case insofar as it extended beyond claims relating to the unlawful seizure of certain items of electronic equipment. Mr Caratti contends that the appropriate order is that his Second Further Amended Originating Application be "otherwise dismissed". The Commissioner contends that Mr Caratti's Further Amended Points of Claim should also be "otherwise dismissed". The Commissioner submits that such an order would be appropriate in circumstances where the claims and allegations pleaded in Mr Caratti's points of claim extended well beyond the claims in the final iteration of his originating application. The dismissal of the final version of Mr Caratti's points of claim would, in the Commissioner's submission, bring greater clarity to those controversies that have been quelled by the proceedings. Mr Caratti, on the other hand, points out that a pleading, including points of claim, does not itself seek relief. It would accordingly not be appropriate to order that a pleading be dismissed.
14 There is some merit in both parties' submissions. If an applicant is unsuccessful, ordinarily it is only the originating application for relief which is dismissed, not the pleading. This was, however, by no means a typical case. Mr Caratti's case evolved considerably over time. The case presented at trial, and the relief ultimately sought, bore little resemblance to the Further Amended Points of Claim. In those circumstances, it is possible to see some merit in ordering that the Amended Points of Claim should be "otherwise dismissed", even though that is somewhat unusual and not strictly necessary. Mr Caratti did not contend that the dismissal of his pleading would have any adverse or unintended effect or cause any prejudice. His point was purely a procedural one.
15 In the circumstances, the form of order 6 as proposed by the Commissioner should be accepted in preference to the form of the order proposed by Mr Caratti.
16 The orders and declarations were otherwise agreed by the parties and are appropriate.
17 Orders will accordingly be made in accordance with the short minute of orders proposed by the Commissioner.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.