High Court of Australia|1995-02-17|Before: Mason CJ

Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572; (1995) 69 ALJR 131; (1995) 37 ALD 321; (1995) 76 A Crim R 400 (17 February 1995)

[1995] HCA 6; (1995) 182 CLR 572

MASON CJ(1), BRENNAN(2), DEANE(1), DAWSON(1), TOOHEY(1), GAUDRON(1) AND McHUGH(3) JJ

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

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

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

Jacobsen v Rogers [1995] HCA 6;

At a glance

Court

Decision date

Before

Source

Judgment (962 paragraphs)

Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572; (1995) 69 ALJR 131; (1995) 37 ALD 321; (1995) 76 A Crim R 400 (17 February 1995)

Parties

Legislation Cited (28)

Cases Cited (34)