CANBERRA, 1994, April 19, 20; SYDNEY, 1995, February 17

On 12 February 1992 a stipendiary magistrate for the State of Western Australia issued two search warrants authorizing two members of the Australian Federal Police Force, Johannes Jacobsen and Terence Dibb, to enter premises occupied by the Department of Fisheries of the State of Western Australia and to seize specified categories of documents. Peter Rogers, the Director of Fisheries for Western Australia, applied to the Federal Court for a declaration that the warrants were invalid and an injunction restraining the policemen from acting upon them. He also applied for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decision of the magistrate to issue the warrants. French J. held that the warrants were authorized by s. 10 of the Crimes Act 1914 (Cth) and dismissed the applications. The Director appealed to a Full Court of the Federal Court (Black CJ, Shepherd and Lee JJ.) which allowed the appeal, set aside the decision of the magistrate to issue the warrants and declared them invalid. The policemen appealed to the High Court by special leave.

Set aside the orders of the Full Court of the Federal Court made 16 July 1993.

Remit the matter to the Federal Court for determination in accordance with these reasons.

The respondent to pay the costs of the appellants of the appeal in this Court.

MASON CJ, DEANE, DAWSON, TOOHEY AND GAUDRON JJ This appeal raises

the question whether s.10 of the Crimes Act 1914 (Cth) binds the Crown

in right of the State of Western Australia so as to subject it to the

execution of two search warrants issued pursuant to that section. The

two search warrants were issued by a stipendiary magistrate and

authorized two members of the Australian Federal Police to enter

premises of the Fisheries Department of Western Australia and to seize

certain documents. The documents were returns which commercial

fishermen were required to make pursuant to s.18 of the Fisheries Act

1905 (W.A.) and other documents which contained information concerning

their catch of rock lobster in waters off the coast of Western

Australia. That information was used by the Department in connection

with research carried out by it to ensure that fisheries in waters off

the State coast are managed on a sustainable basis.

2. The search warrants recite that the magistrate was satisfied

that there were reasonable grounds for believing that the documents

sought would afford evidence of the commission of offences against

s.29D of the Crimes Act, namely, "offences of defrauding the

Commonwealth in that cash payments received in respect of rock lobster

were not declared to the Commissioner of Taxation thereby evading the

payment of income tax" and related offences pursuant to the [Taxation

](/cgi-bin/viewdoc/au/legis/cth/consol_act/taa1953269/)Administration Act 1953 (Cth).

3. Under s.19 of the Western Australian Fisheries Act:

"(1) A person who discloses or makes use of any information -

(b) furnished to him or obtained by him under this Act or in

commits an offence unless that information is disclosed or used -

(i) with the prior consent in writing of the person to whose

(ii) for the purpose of giving effect to the objects of, and in

(iii) in circumstances in which that disclosure or use is

(2) A person having the custody of information referred to in

subsection (1) shall, notwithstanding anything contained in any other

law, not be required by subpoena or otherwise to produce that

4. There was evidence that the confidentiality of the information

furnished by fishermen in their returns made pursuant to s.18 of the

Fisheries Act was important in ensuring the reliability of that

information. It was said that unless the information was reliable the

research and management systems of the Department would be

5. The Director of Fisheries for Western Australia sought

declaratory and injunctive relief against the magistrate and the two

federal policemen to whom the warrants were issued. He also sought an

order for review under the [Administrative Decisions (Judicial Review)

](/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/)Act 1977 (Cth) of the decision of the magistrate to issue the

warrants. An order was made restraining the policemen from executing

the warrants pending the resolution of these proceedings upon the

Director giving an undertaking that he would "protect and preserve

within the Department... all of the returns and any other thing to

which the warrant the subject of these proceedings relates or may

6. Section 10 of the Crimes Act provides:

"(1) If a Magistrate or Justice of the Peace is satisfied by

information on oath that there is reasonable ground for suspecting

that there is in or upon any premises, aircraft, vehicle, vessel or

(a) anything with respect to which any offence against any law of

the Commonwealth or of a Territory has been, or is suspected on

(b) anything as to which there are reasonable grounds for

believing that it will afford evidence as to the commission of any such

(c) anything as to which there is reasonable ground for believing

that it is intended to be used for the purpose of committing any such

or that any such thing may, within the next following 72 hours, be

brought into or upon the premises, aircraft, vehicle, vessel or place,

the Magistrate or Justice of the Peace may grant a search warrant

authorising any constable named in the warrant, with such assistance,

and by such force, as is necessary and reasonable, to enter at any

time the premises, aircraft, vehicle, vessel or place named or

described in the warrant, and to seize any such thing which he or she

(1A) A constable named in a warrant may, where it is necessary and

reasonable to do so for the purposes of executing the warrant, break

open such doors and receptacles as are in or upon the premises,

aircraft, vehicle, vessel or place named or described in the warrant

and may do so with such assistance, and by such force, as is necessary

(2) Subsection (1) is not intended, and shall be deemed never to

have been intended, to limit or exclude the operation of a law of a

Territory relating to the search of premises, aircraft, vehicles,

vessels, places or persons in connection with offences against any law

7. Section 10 is derived from s.679 of the Queensland Criminal Code

(1 Section 10 was in force at all times material to these

proceedings. However, it has since been repealed and another provision

substituted by the [Crimes (Search Warrants and Powers of Arrest)

](/cgi-bin/viewdoc/au/legis/cth/num_act/cwapoaaa1994516/)Amendment Act 1994 (Cth). For the purposes of this judgment, the

present tense will be used). The nature of a search warrant, such as

is authorized by s.10, was recently discussed in George v. Rockett (2

[1990] HCA 26; (1990) 170 CLR 104 at 110). The legislation seeks to balance the need

for an effective system for the investigation of crime against the need

to protect the individual from arbitrary invasion of his privacy and

property. The warrant itself is simply a document, issued by a person

with statutory power to do so, authorizing the doing of acts which

would otherwise be illegal (3 See Reg. v. I.R.C.; Ex parte Rossminster

Ltd. [1979] UKHL 5; (1980) AC 952 at 1000). The acts which it authorizes constitute

an invasion of premises without the consent of the persons in lawful

possession or occupation of them and the seizure of things answering

the description contained in the legislation. In other words, what

would otherwise be a trespass ceases to be so when done pursuant to a

valid warrant. And since acts done pursuant to the warrant are lawful,

any intentional interference with them when they are carried out by a

public officer will constitute the offence of obstruction under s.76 of

the Crimes Act.

8. It is against this background that one must ask the question

whether s.10 binds the Crown in right of Western Australia which, in

the present context, means the executive branch of government of that

9. It must, we think, now be regarded as settled that the

application of the presumption that a statute is not intended to bind

the Crown extends beyond the Crown in right of the enacting

legislature to the Crown in right of the other polities forming the

federation (4 See Bradken Consolidated Ltd. v. Broken Hill Proprietary

Co. Ltd. [1979] HCA 15; (1979) 145 CLR 107). Thus, in construing a Commonwealth

statute, there is a presumption that it is not intended to bind the

Crown in right of the various States as well as the Crown in right of

the Commonwealth. Whether this wide view of the presumption rests upon

the controversial and somewhat artificial doctrine of the

indivisibility of the Crown (5 ibid. at 128-129 per Stephen J; Reg.

v. Canadian Transport Commission (1977) 75 DLR (3d) 257 at 264), or

whether it is justifiable upon the basis that there is but one body of

statutory law in the federation, regardless of its source, which is

presumed to apply to subjects and not to the Crown (6 See Bradken

Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. (1979) 145 CLR at

135-136 per Mason and Jacobs JJ), is something which it is unnecessary

to pursue, particularly in the light of the decision of this Court in

Bropho v. Western Australia (7 [1990] HCA 24; (1990) 171 CLR 1).

10. Before the decision in Bropho, the presumption had been elevated

to a rule of construction that the Crown was only bound by a statute

by express mention or necessary implication. Moreover, the necessary

implication was required to be manifest from the very terms of the

statute in such a way that it was possible to say that "at the time

when the statute was passed and received the royal sanction, it was

apparent from its terms that its beneficent purpose must be wholly

frustrated unless the Crown were bound" (8 Province of Bombay v.

Municipal Corporation of Bombay (1947) AC 58 at 63). In Bropho, the

Court denied the stringency and inflexibility of that rule and affirmed

that it must be the legislative intention which ultimately prevails.

"Once it is recognized that the rule does not, of itself,

provide an impregnable foundation for its own observance, there can

remain no basis in principle for unqualified insistence upon the rule

as an inflexible one, with the stringent implications which recent

cases have accorded it. In other words, once it is accepted that a

legislative intention to bind the Crown may be disclosed

notwithstanding that it could not be said that that intention was

'manifest from the very terms' of the statute or that the purpose of

the statute would otherwise be 'wholly frustrated', fundamental

principle precludes confinement of the general words which the

legislature has used in a way which will defeat that intention. Such

a legislative intent must, of course, be found in the provisions of

the statute - including its subject matter and disclosed purpose and

policy - when construed in a context which includes permissible

extrinsic aids. If such a legislative intent does appear from the

provisions of a statute when so construed, it must necessarily prevail

over any judge-made rule of statutory construction including the rule

Since s.10 of the Crimes Act predates the rigid test laid down by the

Privy Council in Province of Bombay v. Municipal Corporation of

Bombay (10 (1947) AC 58) and was enacted during a period when

authority in this country supported the view that the rule of

construction is not "inflexible, but is merely a presumption in favour

of a particular meaning", no problem is encountered in the application

of the presumption in accordance with the explanation of it provided by

Bropho (11 (1990) 171 CLR at 22-23). The legislation was clearly

not drafted upon the basis of the law as it was later expounded.

11. Section 10 is not expressed to bind the Crown and in this

respect may be contrasted with s.85ZQ of the Crimes Act which provides

that Pt VIIC binds the Crown in right of the Commonwealth, of each of

the States, of the Australian Capital Territory, of the Northern

Territory and of Norfolk Island. But Pt VIIC embodies a discrete

legislative scheme with respect to pardons, quashed convictions and

spent convictions which was added to the Crimes Act in 1989 (12 See

Crimes Legislation Amendment Act 1989 (Cth), s.10) as a result of

recommendations made by the Law Reform Commission (13 Report No.37,

Spent Convictions (1987)). Moreover, other provisions of the Crimes

Act which are not expressed to bind the Crown clearly do so by

implication. For example, Pt IC, which deals with the investigation of

Commonwealth offences, necessarily directs itself to the activities of

Commonwealth and State officers. The presence of s.85ZQ does not,

therefore, indicate that s.10, which is in Pt IA of the Crimes Act, is

not intended to bind the Crown. It is to s.10 itself - to its subject

matter and evident purpose - that one must turn for any indication that

12. The section is concerned with the investigation and prosecution

of crime. That is a function of the executive government and the

section operates in aid of that function. It does not, in that

regard, impose any duty or obligation on the Crown; it is facultative,

providing a means by which the Crown may perform its role more

effectively. Clearly the section applies for the benefit of the

Crown, even if it may not be said to bind it, and the question is

whether, in providing a facility of which the Crown might avail itself,

the legislature intended the Crown to be immune from the exercise of

authority under the same section. In one sense, it may be said that

when a search warrant is obtained on behalf of the Crown in respect of

Crown premises, the Crown is consenting to the search and seizure

which the execution of the warrant entails and there is no occasion to

question the force of the section to bind the Crown. But that is to

ignore the reality of the situation in which the Crown bears not one,

but many aspects. As was observed in the Engineers' Case (14

Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920)

28 CLR 129 at 152), executive power "is exercisable by different

agents in different localities, or in respect of different purposes in

the same locality, in accordance with the common law, or the statute

13. It is, we think, important to recognize that the Crown, being

relevantly the executive branch of government, carries out in modern

times multifarious functions involving the use and occupation of many

premises and the possession of many things. It carries out those

functions through servants and agents who, notwithstanding that they

act with the authority of the Crown, have no immunity from the

ordinary criminal law (15 See Bropho v. Western Australia (1990) 171

CLR at 21, 26; A. v. Hayden [1984] HCA 67; (1984) 156 CLR 532 at 580-582). The Crown

itself may not be subjected to criminal liability, save in the most

exceptional circumstances (16 See Cain v. Doyle [1946] HCA 38; (1946) 72 CLR 409 at

424), but those who actually occupy Crown premises or hold Crown

property are in a different position. There may exist on Crown

premises things which, whether the property of the Crown or not, will

afford evidence as to the commission of an offence or which are

intended to be used for the purpose of committing an offence, whether

the offence is one committed or to be committed by a servant or agent

of the Crown or someone else. Such things as financial records

maintained by government institutions or the contents of post office

boxes or baggage held at airports operated by or on behalf of the Crown

afford good examples. Indeed there may be things on Crown premises

which have nothing to do with the conduct of the department or

authority in question. Nevertheless, on the respondent's argument,

they would be beyond the reach of a search warrant issued pursuant to

14. In our view, it cannot have been intended by the legislature

that a search warrant issued under s.10 of the Crimes Act should stop

short of Crown premises with the result that criminal offences might

go unpunished or, at the very least, that their investigation and

prosecution might be made more difficult. It is no answer to say that

the Crown might voluntarily relinquish those things which might

otherwise be sought under a search warrant and would do so because of

its concern in the investigation and prosecution of crime. Apart from

the obvious case where Crown premises are controlled by a person who

is suspected of committing the offence in question and who is unlikely

to relinquish any incriminating material voluntarily, the objectives

of government departments and agencies and their general obligation to

maintain confidentiality (17 For example, Public Service Regulations

(Cth), reg.35) are likely to conflict with the objectives of those

agencies whose function it is to investigate and prosecute criminal

offences. Section 10, in arming the executive government with

authority to investigate criminal offences by the exercise of powers of

search and seizure, does not contemplate that it should be powerless

where the premises or property in relation to which it seeks to

exercise those powers are Crown premises or Crown property. That would

be inconsistent with the main purpose of s.10 which, for that reason,

sufficiently exhibits an intention to rebut the presumption that it

does not bind the Crown. It may be added that, having regard to the

Crown's interest in the administration of justice, the presumption must

in any event have less strength than in other circumstances (18 See

15. Of course, in relation to specific property the legislature may

exclude the operation of s.10 and on at least one occasion has in fact

done so (19 See Commonwealth Electoral Act 1918 (Cth), s.390A). And

where the public interest in maintaining the confidentiality of

particular documents in the possession of government or a government

agency ought to prevail over the public interest in the prosecution of

crime, then those documents have in our view public interest immunity

from search and seizure under s.10.

16. In Baker v. Campbell (20 [1983] HCA 39; (1983) 153 CLR 52), this Court held by

a majority that the doctrine of legal professional privilege is not

confined to judicial and quasi-judicial proceedings and extends to the

compulsory disclosure of communications in extrajudicial proceedings.

In particular, it was held to extend to search and seizure under a

warrant issued pursuant to s.10 of the Crimes Act. The majority

referred to the principle that a basic common law doctrine is not to be

abrogated except in the clearest of terms and held that s.10, being

silent upon the matter, did not exclude the doctrine of legal

professional privilege. Public interest immunity reflects public

policy as does legal professional privilege (21 See Norwich Pharmacal

v. Customs and Excise Commissioners [1973] UKHL 6; (1974) AC 133 at 206-207), although

it has never been thought to be confined to judicial and quasi-judicial

proceedings (22 See The Commonwealth of Australia v. John Fairfax and

Sons Ltd. [1980] HCA 44; (1980) 147 CLR 39 at 52). In accordance with the approach

adopted in Baker v. Campbell, it is open to the Crown to resist the

seizure under a s.10 search warrant of documents to which public

17. As is demonstrated by Baker v. Campbell and by this case, if a

dispute arises as to the existence of the immunity, means are

available to obtain a judicial determination of the issue. In any

event, practical difficulties in giving effect to the immunity in the

context of the execution of a search warrant would seem to us to be an

inadequate reason for holding the doctrine to be inapplicable. Such

practical difficulties as exist are not insurmountable. That is

demonstrated by the guidelines agreed in 1986 between the Australian

Federal Police and the legal profession on the execution of search

warrants on lawyers' premises where a claim of legal professional

privilege is made (23 See "Guidelines on the Execution of Search

Warrants on Lawyers' Premises" (December 1986) 21 Australian Law News

21; see also Forsyth v. Arno (1986) 65 ALR 125; Federal Commissioner of

18. Public interest immunity has a particular application in the

case of information gleaned upon the basis of confidentiality. As

Viscount Dilhorne said in Norwich Pharmacal v. Customs and Excise

"I do not accept the proposition that all information given to a

government department is to be treated as confidential and protected

from disclosure, but I agree that information of a personal character

obtained in the exercise of statutory powers, information of such a

character that the giver of it would not expect it to be used for any

purpose other than that for which it is given, or disclosed to any

person not concerned with that purpose, is to be regarded as protected

from disclosure, even though there is no statutory prohibition of its

And in Conway v. Rimmer Lord Reid said (25 [1968] UKHL 2; (1968) AC 910 at 946):

"If the state insists on a man disclosing his private affairs for a

particular purpose it requires a very strong case to justify that

The principle does not appear to depend upon the encouragement of

candour but rather upon the consideration that the public interest is

best served by preserving the basis upon which the information was

given. It may be necessary for the proper functioning of the public

service to withhold documents where failure to do so would impair

confidence in its assurances (26 See Sankey v. Whitlam (1978) 142 CLR

1 at 39). Confidential information of a business character required

to be given by a statute which prohibits the disclosure of the

information and protects it from production to a court would appear to

present a particularly strong case for immunity. Nevertheless, even

where the private right to confidentiality is of some magnitude and its

preservation is in itself in the public interest, it must be weighed

against the public interest in disclosure for the purposes of the

investigation and prosecution of the offences in question (27 ibid. at

60-62). Ultimately, that issue may require judicial determination

but, as we have said, if the warrant is executed in a reasonable

manner, as it must be (28 Federal Commissioner of Taxation v. Citibank

Ltd. (1989) 85 ALR at 598-599, 618-619), there is no reason why that

19. The power of the Commonwealth Parliament to enact s.10 of the

Crimes Act was not questioned before us. Plainly the Commonwealth has

power to aid the investigation and prosecution of offences, the

creation of which is incidental to the execution of its legislative

powers. Nor are the circumstances such, in our view, as to raise any

presumption that the Commonwealth did not intend the legislation to

bind the States. It is true that in In re Foreman and Sons Pty. Ltd.;

Uther v. Federal Commissioner of Taxation, Dixon J said (29 [1947] HCA 45; (1947) 74

"A federal system is necessarily a dual system. In a dual

political system you do not expect to find either government

An expectation is somewhat less than a presumption and, as the next

sentence of Dixon J's observation indicates, is not always

"But supremacy, where it exists, belongs to the Commonwealth, not to

Moreover, that case was concerned with the "question of State

legislative power affecting to control or abolish a federal fiscal

right" (31 The Commonwealth v. Cigamatic Pty. Ltd. (In Liquidation)

[1962] HCA 40; (1962) 108 CLR 372 at 378). It is in that context that Dixon J made

20. Once it is seen that the Commonwealth intended by s.10 to bind

its own executive government, there is no reason to suppose that it

did not intend to bind the executive governments of the States. To

reach any other conclusion would suggest that the Commonwealth intended

to curtail the investigation and prosecution of offences against its

laws where the States are concerned but not where the Commonwealth

itself is concerned. In the enactment of s.10 the legislature must be

taken to have relied upon the full extent of its legislative power

which, by virtue of s.109 of the Constitution, prevails over any

21. Other considerations would govern the effect upon the

Commonwealth executive of State legislation authorizing search and

seizure but it is by no means apparent that the Commonwealth, or at

least the agencies through which it operates, would be immune (32 See

Pirrie v. McFarlane [1925] HCA 30; (1925) 36 CLR 170 at 182-183, 218-219, 228-229).

The question of Commonwealth immunity from State legislation is a

difficult one which has not yet been fully resolved, but it is clear

that the States, acting pursuant to the powers which they possess under

the Constitution, are not subordinate to the federal government (33

See Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 50

per Latham C.J). Of course, the Commonwealth in the exercise of its

paramount legislative power may restrict the effect of State

legislation upon its operations. But it has always been recognized

that the Commonwealth may be affected by State laws of general

application (34 See, e.g., Federal Commissioner of Taxation v.

Official Liquidator of E.O. Farley Ltd. [1940] HCA 13; (1940) 63 CLR 278 at 308; The

Commonwealth of Australia v. Bogle [1953] HCA 10; (1953) 89 CLR 229 at 260). A law

authorizing the issue of search and seizure warrants may be such a law,

particularly when it binds the occupier of premises subjected to a

warrant only by relieving those to whom the warrant is issued from

tortious liability. Under s.52 of the Constitution the Commonwealth

has exclusive legislative power with respect to Commonwealth places,

but State laws apply pursuant to s.4(1) of the [Commonwealth Places

](/cgi-bin/viewdoc/au/legis/cth/consol_act/cpola1970376/)(Application of Laws) Act 1970 (Cth). It is, however, unnecessary in

this case to determine the effect of State legislation of a kind

22. For these reasons we would allow the appeal and set aside the

order of the Full Court of the Federal Court which set aside the

decision to issue the warrants in question. Since the judge at first

instance rejected the submission that public interest immunity could

have an application in relation to the execution of a warrant under

s.10, we would remit the matter to the Federal Court to consider, in

the light of these reasons, whether there is immunity in this case.

BRENNAN J Section 10 of the Crimes Act 1914 (Cth) confers (35 It is

convenient to use the present tense although s.10 has been repealed and

new provisions substituted by the [Crimes (Search Warrants and Powers of

](/cgi-bin/viewdoc/au/legis/cth/num_act/cwapoaaa1994516/)Arrest) Amendment Act 1994 (Cth). Section 10 was in force at all times

material to these proceedings) on a constable named in a search

warrant issued pursuant to that section authority "to enter at any time

the premises, aircraft, vehicle, vessel or place named or described in

the warrant, and to seize any such thing which he or she might find

there". The constable may be authorized to seize "anything" which

answers one or more of the descriptions contained in s.10(1)(a), (b) or

(c) (hereafter "relevant things"). Relevant things are -

"(a) anything with respect to which any offence against any law of the

Commonwealth or of a Territory has been, or is suspected on reasonable

(b) anything as to which there are reasonable grounds for believing

that it will afford evidence as to the commission of any such offence;

(c) anything as to which there is reasonable ground for believing

that it is intended to be used for the purpose of committing any such

The warrant may be issued for execution in or upon "any premises,

aircraft, vehicle, vessel or place". The constable's entry may

lawfully be effected "with such assistance, and by such force, as is

necessary and reasonable". The Parliament's unqualified references to

any premises, etc., to be entered at any time in order to seize

anything answering the statutory description was necessitated, no

doubt, by the impossibility of foreseeing either the innumerable

permutations of circumstances in which federal offences might be

committed or the classes of things that might evidence the commission

2. In this case, the question is whether the powers conferred by

the general terms of s.10 are qualified by an exemption in favour of

documents which are said to be the property of and in the custody of

the Crown in right of the State of Western Australia. The documents

are returns which have been furnished in accordance with s.18 of the

Fisheries Act 1905 (W.A.) relating to the quantity of rock lobster

taken by licensed fishermen and purchased or received by nominated

companies in Western Australia. Section 19 of that Act provides:

" (1) A person who discloses or makes use of any information -

(a) contained in a return furnished under section 18(1); or

(b) furnished to him or obtained by him under this Act or in

commits an offence unless that information is disclosed or used -

(i) with the prior consent in writing of the person to whose

(ii) for the purpose of giving effect to the objects of, and in the

(iii) in circumstances in which that disclosure or use is permitted by

(2) A person having the custody of information referred to in

subsection (1) shall, notwithstanding anything contained in any other

law, not be required by subpoena or otherwise to produce that

However, if s.10 is a valid law of the Commonwealth and the powers

thereby conferred are not impliedly qualified so as to permit the

confidentiality provisions of the Fisheries Act of Western Australia

to operate according to their tenor, s.10 prevails over the

confidentiality provisions to the extent of any inconsistency between

them: s.109 of the Constitution.

3. It is a question of construction whether the powers conferred by

s.10 of the Crimes Act are qualified. Although much of the argument

before this Court proceeded on the footing that the question was

whether the Parliament of the Commonwealth intended, or should be

taken to have intended, that the Crown in right of a State be bound by

s.10 of the Crimes Act, I venture to suggest that that is not the

appropriate question to be considered in determining this appeal.

4. The question whether a statute "binds" the Crown depends upon

the circumstances including the terms of the statute, its subject

matter, the nature of the entity in respect of which the question of

applicability of the statute arises, the nature of the mischief to be

redressed, the general purpose and effect of the statute and the

nature of the activities of the Crown which would be affected if the

Crown be bound (36 Bropho v. Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 23,

27-28. See also Registrar of the Accident Tribunal v. Federal

Commissioner of Taxation [1993] HCA 1; (1993) 178 CLR 145 at 171). These are

factors of varying importance and their relevance can be seen clearly

when the statute under examination imposes duties, liabilities, or

restrictions on legal capacity in general terms without expressly

imposing the duty, liability or restriction on the Crown. They are

factors of importance when the statute prescribes a canon of conduct to

be obeyed, creates a remedy for a wrong, imposes a particular liability

or preserves the property of subjects (37 See, for example, Bropho;

Minister for Works (W.A.) v. Gulson [1944] HCA 27; (1944) 69 CLR 338; Bradken

Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. [1979] HCA 15; (1979) 145 CLR

107 and the three kinds of statutes mentioned in the Magdalen College

Case [1572] EngR 413; (1615) 11 Co Rep 66b at 72a-72b [1572] EngR 413; (77 ER 1235 at 1243-1244)). But

s.10 does not operate in any of these ways. It confers a power of

entry, search and seizure but it imposes no more than a passive

obligation to suffer the exercise of the power conferred. A subject

who is the owner or occupier of a place that is entered and searched or

who is the owner or custodian of a relevant thing that is searched for

and seized is not subjected to a duty, liability or restriction on

capacity (except in that passive sense). The subject is not bound by

the law to obey some canon of conduct or to discharge any duty or

liability. Nor does s.10 constrain the conduct of a State or impose on

it any duty, liability or restriction on legal capacity (except in the

5. When a law of the Commonwealth imposes a duty or liability on a

class or restricts the legal capacity of a class, a question may arise

as to whether the term used to describe the class should be construed

to include a State. In such a context, the question may be posed in

the form: does the law "bind" the State? But when the law confers on

a repository a power expressed in unqualified terms and an exercise of

the power is capable of affecting places owned or occupied by a State

or things belonging to or in the custody of a State, a different

question must be asked in order to determine whether the State is

immune from exercise of the power. The question is whether the power

is so limited that it does not extend to an exercise affecting the

State. The question of the extent of a power is not the same as the

question of membership of a class on whom a law imposes a duty,

6. If it were possible to resolve this case by analogy with cases

where the issue was whether a law of the Commonwealth defined a canon

of conduct binding on a State or its servants, much assistance would

be derived from Bradken Consolidated Ltd. v. Broken Hill Proprietary

Co. Ltd. In that case, Gibbs ACJ acknowledged (38 (1979) 145 CLR

at 122-123) that "the Commonwealth can legislate so as to bind a

State" although "the States are neither subjects of the Commonwealth

nor subordinate to it". As the States are not subjects of the

Commonwealth, general expressions such as "any person" used to describe

those on whom a statutory duty is imposed are not read as including the

State, unless the statute so provides expressly or by necessary

implication (39 The rule in relation to the State is a particular

application of the same rule in relation to the Crown: British

Broadcasting Corpn. v. Johns (1965) Ch 32 at 78-79). But s.10 does

not use any general expression to describe the persons on whose

premises the s.10 powers may be exercised or the persons who may own or

have in their custody the relevant things that might be searched for

and seized. There is no occasion to consider whether a general

expression is to be read down to exclude the States. In my respectful

opinion, the problem in the present case cannot be resolved by analogy

with cases where a statute imposes a duty or liability on, or restricts

the legal capacity of, a class described by a general expression.

7. The critical question of construction in this case cannot be

whether the State is "bound" by s.10. If an affirmative answer were

given to this question, s.10 would simply be construed according to

the natural meaning of its terms. If a negative answer were given to

this question, how could the limitation on the power conferred by s.10

be expressed? Would the power be held to stop short of authorizing a

search on any premises belonging to or occupied by a State? Or would

there be no power to search for and seize anything belonging to or in

the custody of a State? There is no recognized canon of construction

which warrants the reading down of "any... place" to exclude places

belonging to or occupied by a State or the reading down of "anything"

to exclude things belonging to or in the custody of a State.

8. However, if the Parliament's power to enact s.10 is limited in a

way that protects the States, that limitation creates a corresponding

limitation on the scope of the power conferred by s.10, albeit s.10 is

expressed without qualification. But constitutionally implied

limitations apart, there is no term in the text of s.10 which can be

read down to create a State immunity corresponding with any intention

that could reasonably be imputed to the Parliament.

9. The purpose for which the powers of entry, search and seizure

are conferred are the prevention, detection and prosecution of

offences against laws of the Commonwealth. To the extent that there is

any limitation imposed on the exercise of the powers conferred by s.10,

the powers cannot be exercised to effect their purpose. If State

premises were excluded from entry and search, those premises could

become alsatias for criminal activity; if State documents were exempt

from search and seizure, the gathering of evidence for Commonwealth

prosecutions would be in the discretion of the Executive Governments

of the States. There is nothing in the text of s.10 or in the nature

of the powers it confers which warrants an implication in the text

exempting State premises from the places in which those powers might

be exercised or State documents from the things which might be seized.

If any limitation on the generality of the language of s.10 is to be

implied, the implication must be derived either from general

principles of the common law or from a limitation on the constitutional

power of the Commonwealth to enact s.10. The respondent and the

10. A legislature is assumed to have intended not to override

important common law principles or rights unless the text of the

statute clearly reveals a contrary intention (40 Baker v. Campbell

[1983] HCA 39; (1983) 153 CLR 52 at 88, 96-97, 116-118, 123, 132). It was on this

principle that a power of search and seizure was held in Baker v.

Campbell to be limited so as to allow for claims of legal professional

privilege (41 ibid). It was submitted that, by analogy, the powers

conferred by s.10 are impliedly limited to allow for the operation of

what is now called "public interest immunity". Some such limitation,

it is admitted, must be allowed in order to protect documents such as

Cabinet papers, the confidentiality of which is essential for the

proper government of the State. (Or, if Commonwealth places or

Commonwealth documents were the subject of a warrant, for the proper

government of the Commonwealth). Although such an immunity of

government is recognized by the courts and applied under the rubric of

public interest immunity in the conduct of litigation (42 The

Commonwealth v. Northern Land Council [1993] HCA 24; (1993) 176 CLR 604), any such

immunity which qualifies the generality of the power conferred by s.10

must be attributed to a constitutional limitation on power rather than

to the common law principle of public interest immunity.

11. A claim of public interest immunity must be allowed or refused

according to a value judgment made by a court (43 Sankey v. Whitlam

(1978) 142 CLR 1 at 38-39, 58-59, 95-96, 110). There is no

opportunity to apply public interest immunity when there is no court

making the requisite judgment. Such a value judgment could not be

formed impartially by those seeking to exercise, or by those seeking to

resist the exercise of, the power. If, upon a contested attempt to

exercise the power, the status quo were to be preserved pending resort

to a court, the question for the court might not be appropriate for

judicial determination. For example, where a warrant is executed in

the course of an enquiry into whether a suspected offence has in fact

occurred, the circumstances bearing upon the public interest might be

extremely problematic and appropriate for executive rather than

judicial evaluation. As the s.10 powers are investigatory, there may

be no way of assessing the likelihood that any search would result in

the seizure of any relevant thing, or has resulted in the seizure of a

thing that would ultimately be found to have a relevant connection with

the commission of an offence against Commonwealth law. Further, if a

search pursuant to a warrant has resulted in the seizure of a document

the confidentiality of which must be maintained in the public interest,

the breach of confidentiality could not be repaired by submitting the

12. A plea of public interest immunity is a plea to be exempted from

an obligation to discover or produce documents or to have admissible

evidence excluded in curial proceedings. Section 10 does not purport

to impose any obligation with respect to the production of documents

nor does it affect the admissibility of evidence. If a confidential

document is seized under a search warrant, its confidentiality must be

respected by any person into whose custody the document comes subject

to the use of the document for the purposes for which the power of

entry, search and seizure is granted. It may therefore be used for

the detection and prosecution of federal offences, but its

admissibility in evidence on any prosecution - and its consequent

public dissemination - is subject to the court's ruling on public

interest immunity. But public interest immunity has nothing to say, in

my respectful opinion, about the scope of the powers conferred by

Constitutional implications: capacity of States to function

13. The limitation which might affect the Commonwealth's power to

make a search and seizure law in aid of valid criminal laws of the

Commonwealth is the implied limitation precluding the making of laws

which impair the capacity of a State to function as such (44 Melbourne

Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31; Queensland

Electricity Commission v. The Commonwealth [1985] HCa 56; (1985) 159 CLR 192 at

205-206, 217, 221-222, 226, 231, 247, 260). There may be a similar

limitation, arising from s.61 of the Constitution, precluding the

making of laws which impair the capacity of the Executive Government of

the Commonwealth from functioning as such. These are the implications

which protect, inter alia, the confidentiality of Cabinet documents.

But if we are concerned with the implied limitation protective of the

States, the circumstances in the present case do not establish that

execution of the warrant would exceed the power of entry, search and

seizure which the Parliament can constitutionally confer. At all

events, there is no evidence to show that the limitation has been

14. Section 19 of the Fisheries Act of Western Australia enables an

assurance of confidentiality to be given to fishermen and others who

furnish information pursuant to s.18 of that Act. That assurance

enhances the reliability of the information thus provided, thereby

assisting the Government to administer the fishery. Although the

execution of a search warrant under s.10 may vitiate the assurance,

and the function of administering the fishery may be made more

difficult thereby, the State's capacity to function is itself

unimpaired. The State is still entitled to be furnished with accurate

returns in conformity with s.18 of the Fisheries Act, though the faith

15. It follows that, although the powers conferred by s.10 must be

exercised within the limits corresponding with the limits of

legislative competence of the Parliament, the scope of the power

conferred by s.10 is sufficient to support the entry, search and

seizure which the appellants wish to undertake in accordance with the

search warrant. Accordingly, the appeal must be allowed and the order

of French J dismissing the consolidated applications restored.

McHUGH J The question in this appeal is whether s.10 of the [Crimes

](/cgi-bin/viewdoc/au/legis/cth/consol_act/ca191482/)Act 1914 (Cth) authorises the issue of a warrant to enter premises of

the Crown in right of a State for the purpose of taking possession of

documents of the Crown that might afford evidence of offences against

Commonwealth law. Section 10 authorises the issue of a search warrant

to enter premises when there is reasonable ground for suspecting,

inter alia, that there is in or upon those premises "anything as to

which there are reasonable grounds for believing that it will afford

evidence as to the commission of" an offence against a law of the

2. On 12 February 1992, Mr Kenneth Moore, a stipendiary magistrate

for the State of Western Australia, issued two search warrants

authorising two members of the Australian Federal Police Force to

enter premises occupied by the Department of Fisheries of the State of

Western Australia and to seize specified categories of documents.

Detective Constable Terence Dibb, one of the police officers, swore

the Information in support of the grant of the warrants. He alleged

that the documents in question contained information furnished to the

Department by crayfish processors, crayfishermen and the operators of

boats that carried crayfish. Detective Dibb swore that he believed

that access to the documents would provide reliable evidence of the

true extent of the crayfish harvest from a particular area off the

Western Australian coast in the financial years 1 July 1986 to 30 June

1990. He swore that he believed that a comparison between the

individual returns and records filed with the Department and the

returns of income filed with the Commissioner of Taxation would

establish significant discrepancies between the actual value of the

catch in those years and the value of the catch declared as income for

the purpose of the Income Tax Assessment Act 1936 (Cth) "both globally

and in respect of individual crayfishermen, crayfish processors and

carrier boat operators". The discrepancies would afford evidence as

to the commission of various offences under the Crimes Act and the

Taxation Administration Act 1953 (Cth).

3. In the Federal Court, French J held that the warrants in

question were authorised by s.10 of the Crimes Act. He dismissed an

application by the Director of Fisheries for Western Australia for an

order quashing the decision to issue the warrants. The Full Court of

the Federal Court (Black CJ, Sheppard and Lee JJ) allowed an appeal

by the Director of Fisheries, ordered that the decision of the

stipendiary magistrate to issue the warrants be set aside and declared

4. The Fisheries Act is an Act for the regulation of the fishing

industry and fish farming and for the conservation and management of

fisheries and aquatic animal and plant life and for purposes connected

therewith. Section 18(1) of the Act requires every person engaged in

any of the operations referred to in s.18(2) to furnish a return in

writing in or to the effect of the prescribed form "as to the catch,

sales, output, purchases, receipts, fishing gear used, time occupied

in fishing, or business of that person". Section 18(2) contains 13

categories of operations. All of them relate to fishing. Section

18(4) provides for penalties in the event of neglect or failure to

5. Section 19 of the Fisheries Act makes it an offence for a person

to disclose or make use of any information contained in a return

furnished under s.18(1). There are exceptions for information that is

disclosed or used with the consent in writing of the person to whose

activities the information relates and information that is disclosed

or used for the purpose of giving effect to the objects of the Act or

"A person having the custody of information referred to in

subsection (1) shall, notwithstanding anything contained in any other

law, not be required by subpoena or otherwise to produce that

The Crimes Act 1914 (Cth)

6. At the relevant time, s.10 of the Crimes Act was, so far as is

"(1) If a Magistrate or Justice of the Peace is satisfied by

information on oath that there is reasonable ground for suspecting

that there is in or upon any premises, aircraft, vehicle, vessel or

(a) anything with respect to which any offence against any law of the

Commonwealth or of a Territory has been, or is suspected on reasonable

(b) anything as to which there are reasonable grounds for believing

that it will afford evidence as to the commission of any such offence;

(c) anything as to which there is reasonable ground for believing that

it is intended to be used for the purpose of committing any such

or that any such thing may, within the next following 72 hours, be

brought into or upon the premises, aircraft, vehicle, vessel or place,

the Magistrate or Justice of the Peace may grant a search warrant

authorising any constable named in the warrant, with such assistance,

and by such force, as is necessary and reasonable, to enter at any

time the premises, aircraft, vehicle, vessel or place named or

described in the warrant, and to seize any such thing which he or she

(1A) A constable named in a warrant may, where it is necessary and

reasonable to do so for the purposes of executing the warrant, break

open such doors and receptacles as are in or upon the premises,

aircraft, vehicle, vessel or place named or described in the warrant

and may do so with such assistance, and by such force, as is necessary

7. The literal meaning of s.10 authorised the issue of the warrants

in question. But the Full Court of the Federal Court held that s.10

was not intended to bind the Crown either in right of the Commonwealth

or of the States. In reaching that conclusion, the Full Court relied

on the presumption that a statutory provision in general terms is not

intended to bind the Crown (45 Bropho v. Western Australia [1990] HCA 24; (1990) 171

CLR 1 at 15). The members of the Full Court were unable to find

anything in the subject-matter, purpose or policy of s.10 or the Crimes

Act generally that overrode the presumption. I agree with that

conclusion. However, I think that there is an even surer ground for

holding that the warrants are invalid. Nothing in s.10 or the rest of

the Crimes Act displays an intention, either expressly or by necessary

implication, to displace the presumption that the legislature of a

member of a federation does not intend its legislation to apply to

another member of the federation. In In re Foreman and Sons Pty. Ltd.;

Uther v. Federal Commissioner of Taxation (46 [1947] HCA 45; (1947) 74 CLR 508 at

"A federal system is necessarily a dual system. In a dual

political system you do not expect to find either government

8. As a result of this expectation, the presumption is that the

Crown in right of a State is not bound by Commonwealth legislation.

That presumption was not always accepted as a rule of construction in

this Court. In R. v. Sutton (47 [1908] HCA 26; (1908) 5 CLR 789), the Court held

that a State government was not entitled to the benefit of the

presumption that Commonwealth legislation is not intended to bind the

Crown. A clear majority of the Court relied on the fact that the Crown

in right of the Commonwealth was a separate juristic person from the

Crown in right of a State. O'Connor J said (48 ibid. at 805) that,

outside the exercise of his powers, the King's representative in a

State was "no more than an individual subject of the King". But in

Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (49

[1920] HCA 54; (1920) 28 CLR 129) ("the Engineers' Case"), the Court rejected the

idea that the Crown was not one and indivisible. Consequently, in

Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. (50

[1979] HCA 15; (1979) 145 CLR 107 at 122-123, 128-129, 136), the Court held that

there is a presumption that legislation of the Commonwealth is not

intended to bind the Crown in right of the Commonwealth or the States.

"Legislation of the Commonwealth may have a very different effect when

applied to the government of a State from that which it has in its

application to ordinary citizens. It seems only prudent to require

that laws of the Parliament should not be held to bind the States when

the Parliament itself has not directed its attention to the question

So in Bradken, the Court held that the Trade Practices Act 1974 (Cth)

did not bind the States although it expressly bound the Crown in right

9. A similar rule of construction is applied in the federations of

the United States and Canada. In Will v. Michigan Department of State

Police (52 [1989] USSC 118; (1989) 491 US 58 at 65), White J, giving the judgment of

"(T)he ordinary rule of statutory construction (is) that if Congress

intends to alter the 'usual constitutional balance between the States

and the Federal Government', it must make its intention to do so

'unmistakably clear in the language of the statute'... Congress

should make its intention 'clear and manifest' if it intends to

10. In United States v. Bass (53 [1971] USSC 192; (1971) 404 US 336 at 349), Marshall

J, giving the majority judgment in the Supreme Court, said:

"In traditionally sensitive areas, such as legislation affecting the

federal balance, the requirement of clear statement assures that the

legislature has in fact faced, and intended to bring into issue, the

critical matters involved in the judicial decision."

11. In Alberta Government Telephones v. Canadian Radio-television

and Telecommunications Commission (54 (1989) 61 DLR (4th) 193 at 227),

Dickson CJC, who gave the leading judgment in the Supreme Court of

Canada, approved the following passage in a Comment in the Canadian Bar

Review (55 (1978) 56 Canadian Bar Review 145 at 150):

"In a federal system it makes some sense to put the onus on a

legislature to specially include the other level of government within

its enactments if they are to so extend in a restrictive way. This

preserves a degree of freedom to the various political units within

the federation that is consistent with their mutual independence."

12. Accordingly, in the present case one begins with the presumption

that s.10 of the Crimes Act was not intended to bind the Crown in

right of the Commonwealth or in right of the State of Western

Australia. However, Mr Heenan, QC, for the police officers, while

accepting that there was a presumption that the Crown in all its

emanations was not bound by s.10, contended that the subject-matter of

the section indicated a legislative intention to bind the Crown both in

right of the Commonwealth and in right of the States. Mr Heenan

pointed to the statement of Griffith CJ in Sydney Harbour Trust

Commissioners v. Ryan (56 [1911] HCA 64; (1911) 13 CLR 358 at 365) where his Honour

referred to a statement of Lord Coke in the Magdalen College Case (57

[1572] EngR 413; (1615) 11 Co Rep 66b at 72a [1572] EngR 413; (77 ER 1235 at 1243)). In Magdalen, Lord

Coke said that one kind of statute that always binds the Crown without

naming it is a statute "for the suppression of wrong". Mr Heenan

pointed out that s.10 is intended to facilitate investigation of

offences against the Commonwealth. He said that the public interest

requires that all evidence that is relevant to proof of a crime be

available to the prosecution whether or not that evidence is on

premises owned or occupied by the Crown in right of the Commonwealth or

a State. Accordingly, it was contended that s.10 must be taken to bind

13. In my opinion, however, neither the subject-matter of s.10 nor

its apparent purpose is sufficient to overcome the presumption that,

unless an intention to affect the Crown is clearly discernible, the

Crown, whether in right of the Commonwealth or a State, is not

affected by legislation of the Commonwealth. The terms of s.10

authorise the seizure of the property and entry upon the premises of

private individuals. The plain words of the section allow no escape

from that conclusion. But nothing in those words implies an intention

to override the presumption that legislation does not apply to the

Crown. If they do, the presumption that statutes do not bind or apply

to the Crown must now be regarded as a very weak one.

14. In addition, the subject-matter of s.10 makes it less rather

than more likely that Parliament intended s.10 to apply to the Crown.

If s.10 applies to the Crown, it would mean that, on the information

of any person, a magistrate or justice of the peace could authorise a

constable to enter any government institution in Australia and seize

papers that are alleged to contain evidence of the commission of a

crime against the Commonwealth. Prima facie, parliamentary papers,

cabinet papers, court papers and national security and defence papers

could be seized. In an endeavour to meet these consequences of his

submission, Mr Heenan contended that s.10 was probably subject to a

claim for public interest immunity in relation to the production of

such documents. That is to say, the power to seize relevant documents

is subject to those claims of privilege that are recognised by the

common law. Mr Heenan pointed out that this Court has already held

that s.10 does not extend to requiring the production of documents

which are the subject of legal professional privilege (58 Baker v.

Campbell [1983] HCA 39; (1983) 153 CLR 52).

15. Although this Court has held that s.10 of the Crimes Act does

not extend to authorising the seizure of documents that are protected

by legal professional privilege, it does not follow that every other

claim of common law privilege is an answer to a s.10 warrant. A claim

of public interest immunity, for example, is different from a claim of

legal professional privilege. Subject to well defined exceptions, a

claim of legal professional privilege is a complete answer to a demand

under a subpoena or a search warrant. But a claim of public interest

immunity is always a relative claim. It must be weighed against the

public interest sought to be achieved by the execution of the

compulsory process. When a claim for public interest immunity is made

in the course of judicial or quasi-judicial proceedings, in respect of

a subpoena or a motion for discovery, the relevant court can weigh the

public interest in a court of justice having access to relevant

evidence against the claim for immunity and decide where the balance

of the public interest lies. In that context, a claim of public

interest immunity assumes that the documents sought are both relevant

to and admissible in support of an issue that is being litigated. But

the documents and property that may be seized under a search warrant

are not confined to documents that are admissible in evidence in

judicial proceedings. They include documents and property that do no

more than "afford evidence as to the commission" of a crime.

16. If a claim of public interest immunity was an answer to a search

warrant, a court would have to determine the claim and decide where

the balance of the public interest lies. Even if the court examined

the seized documents or property, it would find it difficult to

evaluate the competing public interests unless it was fully informed by

the person who obtained the warrant as to the importance of the seized

material to the ongoing investigation. Moreover, a search warrant is

frequently executed before any judicial proceedings have commenced.

In many cases, it will be far from certain that judicial proceedings

will be commenced; there may only be a suspicion that a crime has

occurred. Consequently, if a claim of public interest immunity is an

answer to a s.10 warrant, then, in many cases, the person who obtained

the warrant would have to disclose to the court and the opposition the

state and goals of the investigation and would need to have access to

the seized material. If access to the documents or property was

allowed and the claim for immunity later upheld, the reason for the

immunity would be undermined, if not defeated. If disclosure of the

state and goals of the investigation were required and the claim for

the immunity later rejected, the investigation might be prejudiced.

Disclosure and access would be inimical to one or other of the

respective public interests whichever of those interests ultimately

prevailed. The practical difficulties of allowing a claim of public

interest immunity as an answer to a demand under a search warrant are

obviously very great. They tend to suggest that a claim of public

interest immunity should not be permitted as an answer to a search

17. However, in this appeal, it is not necessary to decide whether

public interest immunity can ever be an answer to a demand under a

search warrant. If the construction of s.10 for which Mr Heenan

contends is correct, the section still empowers a justice of the peace

or stipendiary magistrate to authorise the seizure of the most

important and secret documents in the country even if a claim of

public interest immunity is available. That would mean that in every

case the claim of public interest immunity would have to be weighed

against the public interest in examining evidence relevant to the

commission of crime. Take as an example the case of documents

recording information received by the Taxation Department. Section 16

of the Income Tax Assessment Act prohibits the disclosure in court of

documents containing such information except for the purposes of

carrying into effect the provisions of the Income Tax Assessment Act.

In terms, s.16 has nothing to say about documents being seized by

search warrant. Yet it is hardly to be supposed that the Commonwealth

in enacting s.10 of the Crimes Act intended that a magistrate or

justice of the peace could authorise a constable to seize income tax

returns held by the Commissioner of Taxation. It is true that, if s.10

authorised the entry onto the premises of the Commissioner of Taxation

for the purpose of seizing those returns, then, assuming a claim of

public interest immunity was open, the Commissioner could raise the

claim in respect of the documents. However, a court would be required

to weigh the claim of immunity for income tax returns against the

public interest in having the returns available to the person who

obtained the warrant (59 cf. Alister v. The Queen (1984) 154 CLR 404).

Almost certainly occasions would arise where the claim for public

interest immunity would be rejected. The purpose of s.16(3) of the

Income Tax Assessment Act, which is to ensure that the information in

tax returns is not divulged to any court except for carrying out the

purposes of that Act, would be defeated by the use of a search warrant

although it could not be defeated by a subpoena or a motion for

discovery (60 cf. Lander v. Mitson (1988) 83 ALR 466). I find it

difficult to conclude in the face of s.16 of the Income Tax Assessment

Act that s.10 of the Crimes Act was intended to allow such documents to

be seized even though s.16 does not deal with the question of search

18. Moreover, s.10 of the Crimes Act does more than authorise the

seizure of documents and things asserted to afford evidence of an

offence. It authorises a constable with such assistance and by such

force as is necessary and reasonable to enter premises at any time.

It also authorises a constable, where it is reasonably necessary for

the purposes of executing the warrant, to break open doors and

containers on the premises with such assistance and by such force as is

necessary and reasonable. The authority of a constable executing a

search warrant extends to searching the persons of, and giving

directions to, people on the premises. Failure to submit to the search

or to obey the directions constitutes the offence of hindering or

obstructing a constable in the execution of his duty (61 Towse v.

Bradley (1985) 73 FLR 341). These considerations reinforce the

conclusion that s.10 was not intended to apply to the premises or

19. Because of the consequences of applying s.10 to the Crown, it is

difficult to suppose that the general words of s.10 were intended to

authorise the issue of warrants directed to Commonwealth departments

whose information is protected by secrecy provisions similar to s.16

of the Income Tax Assessment Act (62 cf. [Census and Statistics Act

](/cgi-bin/viewdoc/au/legis/cth/consol_act/casa1905241/)1905 (Cth), s.19; [Australian Security Intelligence Organization Act

](/cgi-bin/viewdoc/au/legis/cth/num_act/asioa1979479/)1979 (Cth), s.92S). Once that conclusion is accepted in respect of

documents whose confidentiality is protected by statute, there is no

sensible reason for holding that other documents held by the Crown are

20. Furthermore, nothing in s.10 indicates an intention to overcome

the presumption that Commonwealth statutes do not apply to the Crown

in right of a State. In a federation, you do not expect one government

to authorise the seizure of another government's papers or to

authorise the forced entry of another government's premises. In Re

Commissioner of Water Resources and Leighton Contractors Pty. Ltd. (63

(1990) 96 ALR 242), however, Byrne J held that s.18(4) of the

Arbitration Act 1973 (Q.) authorised the issue of a subpoena directed

to documents of the Commonwealth even though the Commonwealth was not a

party to the arbitration. Mr Heenan relied on that decision. But in

construing s.18, Byrne J made no reference to the presumptive rule

that in a federation the legislation of one government does not apply

to another government. Because his Honour did not refer to the

existence of the presumption, I do not think that the decision can be

supported. In any event, it is one thing to hold that the general

words of a statute of one government authorise a judicial or

quasi-judicial body to issue a subpoena duces tecum to another

government in the federation. It is a very different matter to

conclude that the general words of a statute of one government are

intended to authorise the invasive procedures involved in the execution

of a search warrant on another government's premises. To order a

government to produce documents to a court or quasi-judicial body is

not comparable to authorising a constable of police to make forceful

entry onto that government's premises and to take possession of its

21. For these reasons, I am of opinion that s.10 of the Crimes Act

does not apply to premises in the possession of the Crown. This

construction of s.10 no doubt causes difficulties for those who

investigate the commission of criminal offences. On many occasions,

documents and property having no connection with the Crown will be in

the custody or possession of persons on Crown premises. There seems

no sensible reason why a search warrant should not be executed in

respect of such documents and property. However, to give s.10 a

construction that would achieve that result seems to me to go beyond

the scope of the judicial function. The conditions under which a

search warrant authorised by s.10 ought to be executed on Crown

premises to seize documents or property not belonging to the Crown is a

matter for the legislative, not the judicial, process.