Commissioner of Australian Federal Police v Propend Finance Pty Ltd

The application of these principles to the instant case presents some difficulty. The difficulty arises because the claim for declaratory relief seems to have been regarded as an incident of, or a step towards, the granting of relief by way of judicial review of the application for search warrants, the issuing of the search warrant and the conduct of the police in executing the search warrants. In truth, the determination of the claim for declaratory relief was not, and could not have been, determinative of the claims for judicial review. The fact that there were privileged documents (or documents that were prima facie privileged) in the premises in respect of which search warrants were sought says nothing as to the validity of the applications for warrants to search those premises, assuming that such applications were "decisions" or "conduct" amenable to review under the Administrative Decisions (Judicial Review) Act 1977 Cth or were reviewable pursuant to s 39B of the Judiciary Act. There was nothing to show that the applications were made in bad faith to obtain warrants authorising a search for and seizure of privileged documents. Nor was the decision to issue the warrants invalid. The issuing justice restricted the execution of the warrants so as to ensure observance of the guidelines for dealing with documents in the event that a claim of privilege was made. The conduct of the police in executing the warrants complied with the guidelines. In accordance with those guidelines, the documents for which privilege was claimed were not seized under the warrant but were sealed up and delivered to a third party. The guidelines provide, in effect, that when the documents are sealed up and delivered to a third party, the execution of the warrant be suspended pending the decision in proceedings to establish the privilege. If no such proceedings are taken or such proceedings fail, the documents are released into the possession of a police officer to be dealt with under the warrant. In this way, an accommodation is reached between the legislative intention expressed by s 10(1) and the decision in Baker v Campbell .