Construction, Forestry, Mining & Energy Union (Queensland and Northern Territory Branch) v Australian Federal Police

EX TEMPORE REASONS FOR JUDGMENT 1 Late on the afternoon of 19 November 2015, the Construction, Forestry, Mining & Energy Union (the Union) sought an urgent ex parte order to prevent the Commissioner of the Australian Federal Police and/or the Commissioner of the Queensland Police Service from accessing a copy of its computer server, which copy was obtained when officers of the Australian Federal Police and/or the Queensland Police Service executed a search warrant on its premises. The warrant in question was issued on 18 November 2015 by Ms Christine Roney, a Queensland Magistrate. It was issued to Mr Peter Barry Ah Loy, a constable, as defined in the Crimes Act 1914 (Cth) (the Crimes Act). 2 Mr O'Gorman SC, for the Union, informed me that his client was unable to ascertain from those who attended at its premises whether Mr Ah Loy and the other officers involved were all officers of the Australian Federal Police, or all officers of the Queensland Police Service, or some of both. He has, therefore, sought, at this initial stage, to have the order directed to both Commissioners. I will return to the question of whether it should also be directed to the executing officer named in the warrant, Mr Ah Loy. 3 It is also worth recording that the terms of the order Mr O'Gorman sought at the conclusion of the urgent hearing last night is considerably narrower than that sought by the Union in its originating application. Specifically, the order does not now seek, at least at this stage of the proceeding, to have the search warrant set aside, nor does it seek to prevent access to any of the hard copy documents that were seized at the premises during the execution of the warrant yesterday. Instead, the order sought is as follows: The copy of the applicant's computer server seized pursuant to the search warrant not be accessed by anyone without the permission of the applicant, and/or be sealed until further order of this Court. 4 The warrant was issued under the provisions of Part 1AA of the Crimes Act, particularly s 3E. It authorised Mr Ah Loy and others to enter and search the premises at 14-16 Campbell Street, Bowen Hills, Queensland, including: ... all motor vehicles, rooms, safes, storerooms and storage areas to which access is controlled by the occupants, computer equipment, electronic data servers and data storage devices and garbage containers and garbage areas attached to or unattached for the use of the said premises. 5 And to, among things: ... seize any other thing found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be: (i) evidential material in relation to an offence to which the warrant relates; (ii) evidential material in relation to another offence that is an indictable offence; or (iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act). 6 The warrant is directed to evidential material as defined in the Crimes Act, which satisfies three conditions. The first condition contains a long list of things described as: Originals or copies of any one or more of the following, including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device... 7 The list includes electronic documents and files, computer logs, mobile telephones, mobile handsets, and subscriber identity module cards - that is, SIM cards - and numbers, plus approximately another 20 items. 8 The second condition contains a longer list of persons and items. The first person on the list is Mr Michael John Ravbar who, I am told, is the Secretary of the Queensland Division of the Union. That part of the list contains approximately 60 names. The list then sets out various entities, including Bastemeyer Group Pty Ltd, Cleanaway, and a number of others. Finally, the list includes various topics and email addresses, some of which, as Mr O'Gorman pointed out, are quite nondescript, including "urgent", "clean-up", "$770.00", "[e]xcavator", and email addresses, such as "" and others. 9 The third condition describes three indictable offences, as follows: That between 30 March 2014 and 5 April 2014 at Brisbane in Queensland, Michael John RAVBAR born 1 March 1967, David Arthur HANNA born 5 October 1964, and Paula MASTERS born 12 February 1955, knowing that a book / document / thing is or may be required in evidence in a judicial proceeding, namely the Royal Commission into Trade Union Governance and Corruption, being a federal judicial proceeding, destroyed that book / document / thing with the intention of preventing it from being used in evidence, contrary to subsection 39(1) of the Crimes Act 1914 (Cth). That between 30 March 2014 and 5 April 2014 at Brisbane in Queensland, Michael John RAVBAR born 1 March 1967, David Arthur HANNA born 5 October 1964, and Paula Ellen MASTERS born 12 February 1955 did an act namely disposing of approximately 6 tonnes of documents which resulted in a document namely Notice of Intention to Proceed by Summons being destroyed and the said defendants were reckless as to whether the said document was one that may be required as evidence before a Commission namely the Royal Commission into Trade Union Governance and Corruption. That between 26 August 2015 and 3 September 2015 at Brisbane in Queensland, Michael John RAVBAR born 1 March 1967 being a person who was served with a notice under subsection 2(3A) of the Royal Commissions Act 1902 failed to produce a document namely "Notice Of Intention To Proceed By Summons" that the said defendant was required to produce in accordance with the said notice. 10 The warrant then sets out the effect of various provisions of Part 1AA of the Crimes Act, including ss 3F, 3ZR, 3G, and 3L. In short, those provisions prescribe what it is that the executing officer, or those assisting him or her, are authorised to do at the premises, and various constraints on that authority. 11 Importantly, the second-last page of the warrant - it is seven pages long in all - contains this note: This warrant is issued in recognition that a claim for legal professional privilege may be made in respect of documents covered by this warrant and on the understanding that, if that occurs, the executing officer will, as far as is reasonably practicable, follow the course of action set out in the document entitled "Claims for Legal Professional Privilege: Premises other than those of a Lawyer, a Law Society, or Like Institution", a copy of which is attached to this warrant. 12 The Union's application was supported by an affidavit of Mr Payne, a Principal in the firm of Hall Payne Lawyers, the solicitors for the Union, and oral evidence given by Ms Burson, an Associate in the employment of the same firm. Both witnesses described the events they witnessed at the premises from about 7.45 am until about 4.45 pm, as the warrant was being executed. Mr Payne was present during most, if not all, of that period and Ms Burson was present from about 9 am until about 1 pm. 13 They both gave evidence to the effect that the executing officers stated that they intended to take a copy of the Union's computer server and perform searches on its contents away from the premises. The gist of the Union's complaint about this aspect is contained in paragraph 11 of Mr Payne's affidavit as follows; We formally raised an objection at approximately 12.35PM to globally copying the server or removing the server from the premises, specifically with regard to maintaining our client's legal professional privilege on documents that would be contained on the server and other information technology equipment. Put another way, we are concerned that the manner in which electronic material is being accessed may mean that that material is properly the subject of legal professional privilege is being accessed and we cannot contemporaneously make a claim for legal professional privilege over this material. 14 In an application of this kind, the applicant must show that: (a) there is a serious question to be tried, or that the applicant has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that, at the trial of the action, the applicant will be held entitled to relief; (b) it will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (c) the balance of convenience favours the granting of an injunction. See Castlemaine Tooheys v South Australia (1986) 161 CLR 148 at 153. 15 Mr O'Gorman described the serious question to be tried as whether, in the circumstances, the executing officers were authorised to copy the Union's computer server and take that copy away from the premises for further examination. As I understand his submissions, the relevant circumstances included the failure of the executing officers to properly ascertain whether the material on the computer server may be covered by legal professional privilege and/or whether the material on the computer server fell within the terms of the warrant. 16 As I have already observed, the need to accommodate claims for legal professional privilege is clearly expressed in the warrant itself. The authority to copy data found on premises is set out in s 3L of the Crimes Act, particularly subsection (1A) as follows: If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may: (a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or (b) if the occupier of the premises agrees in writing - copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises; and take the device from the premises. 17 Flick J conducted a careful and comprehensive examination of the provisions of Part 1AA of the Crimes Act in Zhang v The Australian Federal Police (2009) 260 ALR 580; [2009] FCA 1170 (Zhang). In the course of his decision, his Honour made the following pertinent observations. First, his Honour described the concerns that led him to grant relief in that matter in these terms (at [7]): What is of particular concern, at least at the interlocutory stage, is the prospect that in executing the warrants documents and things may have been seized in excess of the terms of the warrants. A further issue of concern is the ability of a person whose premises are being searched to be informed in a meaningful manner as to what may be searched and seized pursuant to a search warrant and his ability to confine those executing a warrant to the terms of their authority. 18 Secondly, his Honour (at [27]) emphasised the fact that the common law has long been: ... jealous of the prima facie immunity from seizure of papers and possessions [referring to the High Court decision of George v Rockett (1990) 170 CLR 104 at 110 per Mason CJ, Brennan, Dean, Dawson, Toohey, Gaudron and McHugh JJ]. 19 Thirdly, his Honour identified s 3F of the Crimes Act as the section that confers the general authority connected with the execution of a search warrant, observing (at [30]) that: The authority conferred is that conferred upon the "executing officer or a constable assisting". It is not an authority to seize only that which a court subsequently concludes falls within the terms of the warrant. But the extent of the authority conferred by s 3F is constrained by the requirement that the "executing officer" or "constable assisting" only seize that which he "believes on reasonable grounds" is relevantly either: • "evidential material in relation to an offence to which the warrant relates"; or • "evidential material in relation to another offence that is an indictable offence". In the absence of the "executing officer" or "constable" forming such a belief on "reasonable grounds", the warrant confers no authority to seize anything. No authority has been conferred by the legislature or by the warrants to enter a person's premises and to seize at random documents or things which may be believed to be of interest. There must always remain "reasonable grounds" for the belief set forth in s 3F(1)(d). 20 Fourthly, his Honour also emphasised the importance of accommodating claims for legal professional privilege when executing a search warrant. At [46], his Honour said: A search undertaken with a view to precluding meaningful access to legal advice and the opportunity to claim legal professional privilege may render unlawful a search undertaken: Citibank Ltd v Cmr of Taxation (1988) 83 ALR 144; Federal Cmr of Taxation v Citibank Ltd (1989) 20 FCR 403. 21 Fifthly, his Honour summarised the responsibilities of persons executing search warrants in these terms (at [71]): Persons executing warrants such as those presently in issue have to do so with a fully informed sense of the responsibilities imposed upon those authorised by law to access, perhaps forcibly, homes and premises. A search warrant remains a serious intrusion upon the rights of individuals. Such powers as are conferred may be exercised in accordance with the authority conferred - but no more. The powers conferred are already extensive and intrusive. 22 Finally, his Honour highlighted the balance that needs to be struck in this area of discourse between individual private rights and the public interest in the enforcement of the criminal law, and the need for the authorities to carry out investigations of criminal activity (at [84]) and the related need to respect "the operational realities in which warrants are executed" (at [24]). 23 I found his Honour's decision to be most helpful in determining this application. In an interlocutory application such as this, it is not appropriate for me to express any concluded views on the questions to be tried. That is all the more so where this is an interim ex parte application. It will suffice to say that, on the evidence before me at this stage of the proceeding, I consider there are serious questions to be tried as to whether those executing this search warrant have: (a) kept within the constraints prescribed in Part 1AA of the Crimes Act, and particularly s 3L, when they took a copy of the Union's computer server; and (b) in the process of executing the search warrant, properly accommodated any claims for legal professional privilege the Union may have. 24 As to the balance of convenience, given the limited scope of the order now sought, the common law's jealousy to ensure that the conditions governing the execution of search warrants are properly and strictly fulfilled when the invasion of a person's rights is involved, and the importance the common law attaches to the immunity afforded by legal professional privilege, I consider the balance of convenience, at least at this stage, strongly favours the Union. I might add that Flick J simply and aptly expressed these sentiments in Zhang in these terms (at [66]): The rights of individuals are not to be whittled away by conferring greater power upon those executing warrants than the already extensive power they presently possess. Damages, in such a context, may not be an adequate remedy. 25 For these reasons, I propose to make an order in substantially the same terms as that sought by the Union. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.