Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Illegally obtained evidence - Particular cases - Records and returns as to fish catches - Whether discretion available.

Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, referred to.

Criminal Law - Jurisdiction, practice and procedure - Warrants, arrest, search, seizure and incidental powers - Search warrants - Generally - Susceptibility to collateral challenge - Misrepresentation to issuing officer - Matters relevant to trial judge's discretion to exclude evidence.

Murphy v R [1989] HCA 28; (1989) 167 CLR 94; Question of Law Reserved on Acquittal (No 5 of 1999) [2000] SASC 51; (2000) 76 SASR 356, distinguished.

Lego Australia Pty Ltd v Paraggio (1994) 53 FCR 542; Flanagan v Commissioner of the Australian Federal Police (1995) 60 FCR 149; R v Grassby (1988) 15 NSWLR 109, referred to.

Crown: M Rozenes QC, K E Read, N Robinson, J Read & I M Arendt

Crown: Commonwealth Director of Public Prosecutions

First Accused: Jennings Elliott as agents for: Iles Selley

Third Accused: Jennings Elliott as agents for: John Lister

Fourth Accused: Jennings Elliott as agents for: Coates PL

Fifth Accused: Jennings Elliott as agents for: Lynch & Meyer

Judgment Number: [2001] TASSC 124

1 These are my reasons for a determination made on 29 October 2001 pursuant to the Criminal Code, s361A, whereby I decided that certain documents were not to be admitted into evidence, but declined to exclude certain other documents. The five accused have been charged with a single count of conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority ("AFMA"), an authority under the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A. By way of particulars, the Crown has alleged that the accused conspired to cause and permit false returns to be submitted to AFMA as to orange roughy catches in 1992 and 1993, and that the submission of such false returns was likely to deflect public officers from the performance of public duties imposed by fisheries legislation. The accused have all pleaded not guilty, but a jury has yet to be empanelled. I decided to determine prior to the empanelment of the jury, pursuant to s361A, whether to exclude certain evidence that was objected to on discretionary grounds, and accordingly received evidence on the voir dire in relation to the objections. Counsel also agreed that I should treat the evidence given by various witnesses on an earlier Basha enquiry (see Basha v R (1989) 39 A Crim R 337 at 339) as if they had been called on the voir dire. Counsel for the accused submitted that I should exclude, pursuant to the Court's discretions in relation to unfairness and illegally or improperly obtained evidence, evidence falling into the following categories:

(a) All SEF1 and SEF2 forms submitted to AFMA. (These were forms completed by fishermen, trawler operators, their representatives, and processors or "receivers" of fish. For reasons which I will explain, no-one had a legal duty to submit them at any relevant time.)

(b) All documents seized pursuant to invalid search warrants executed in purported pursuance of the Fisheries Act 1952 (Cth) ("the 1952 Act").

(c) All documents seized pursuant to search warrants issued pursuant to the Fisheries Management Act 1991 (Cth) ("the 1991 Act") and the Mutual Assistance in Criminal Matters Act 1992 (NZ) ("the NZ Act"). (I have previously determined that those warrants were validly issued: R v Turner (No 4) [2001] TASSC 51 at pars88, 93. Counsel submitted that I should reverse those determinations on the basis of evidence that has subsequently come to light.)

2 Schedules have been prepared listing all the documents to which the voir dire relates which the Crown intends or contemplates tendering on the trial, including the SEF1 and SEF2 forms submitted to AFMA and the documents seized pursuant to each relevant warrant. For the purposes of the voir dire, it has been agreed between the Crown and the accused that these schedules are accurate. A series of compact discs containing the documents objected to, in electronic form, has been tendered on the voir dire.

The intended legislative and administrative schemes

3 Prior to 1992 there were no quota restrictions in relation to the catching of orange roughy in the relevant waters, and the Commonwealth administered Australia's fisheries pursuant to the 1952 Act and the Fisheries Regulations. Under that Act, extensive administrative powers were vested in the Minister. He administered that Act with the assistance of the officers of the Australian Fisheries Service ("AFS"). Decisions were made, presumably in 1991, to change the existing arrangements in two main respects. Firstly, it was decided to repeal the 1952 Act, apart from provisions relating to arrangements with the States and Territories, which are of no significance in this case, and to introduce a new legislative regime. Administrative control of Australia's fisheries was to pass from the Minister to AFMA, an authority created by the Fisheries Administration Act 1991. New arrangements for the management of fisheries by AFMA, involving (inter alia) plans of management and fishing permits, were provided for in the 1991 Act. Transitional provisions were made by the Fisheries Legislation (Consequential Provisions) Act 1991 ("the FLCP Act"). The second major change was that it was decided to introduce a system of individual transferable quotas in order to restrict and regulate the taking of orange roughy and other species in the area of what was called the "South East Fishery" from the beginning of 1992.

4 For the purpose of implementing the latter proposal, an instrument known as the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the 1991 management plan") was prepared. On 9 December 1991, the Minister signed a determination purporting to give it the status of a management plan under the 1952 Act, s7B(1). On the same day, the Minister signed a notice purporting to prohibit the taking of fish (with an immaterial exception) by trawling from the area of the "South East Fishery" with effect from 1 January 1992 pursuant to the 1952 Act, s8. The notice contained an exemption in respect of any boat which had units assigned to it in respect to a species under the 1991 management plan, and had not been used to take a total weight of that species exceeding the quota in relation to those units. Licences were issued, purportedly pursuant to the 1952 Act, s9(2), authorising specified boats to be used to take fish by trawling to the extent that each boat had units assigned to it in respect of a species under the 1991 management plan, and had not been used to take a total weight of that species exceeding the quota in relation to those units. Such licences were issued in respect of a period expiring on 31 December 1992. It was intended that, after the commencement of the 1991 Act, such licences would remain in force until their expiry date pursuant to a transitional provision, namely the FLCP Act, s6.

5 The Minister sought to invoke the provisions of the Fisheries Regulations, regs16 - 18, which related to log-books. Under reg16, the Minister was empowered to cause to be published forms of log-books in which information could be entered in accordance with the regulations. Under reg17, the Minister was empowered to make, by a notice published in the Gazette and a newspaper, a determination which had the effect of requiring a particular form of log-book to be used for specified fishing activities during a specified period. Once such a determination was made, reg18 became applicable. Under reg18(1), the master of an Australian boat licensed under the 1952 Act, s9, was required to enter information as to the taking, sale or disposal of fish in a log-book in the appropriate form, in accordance with the requirements set out in it, on a daily basis. Failure to comply with reg18(1) was an offence. Further, reg18(3) required the master to furnish the folios of the log-book to "an officer, or to the Department, in accordance with the requirements set out in the log-book". Failure to do that amounted to an offence. The Minister sought to invoke these provisions by two notices dated 12 November 1991 which were published in the Gazette on 15 November 1991: Logbook Notices Nos SEF1 and SEF2. The notices applied to the same waters that were described in the 1991 management plan, and for the period from 1 December 1991 to 30 November 1994.

6 The first such notice related to log-books containing SEF1 forms. Such forms were designed so that each day the master of a fishing boat would record information in relation to each "shot", ie, each occasion when nets were used to catch fish, or to attempt to catch fish. The form provided for the recording in relation to each "shot" of the type of net, the starting and finishing positions of the boat, the starting and finishing times of the "shot", the depth, the species caught, and the quantity of each species caught.

7 The second notice related to SEF2 forms. They were designed to be filled in in quadruplicate. The top copy, which was white, was intended to be completed by the fishermen and lodged with AFMA within 24 hours after unloading. The next copy was green, and was intended to be retained by the fishermen in the book of forms, and made available for inspection upon request. There were also pink and yellow copies, which were intended to be sent to the processors, who were referred to as "receivers". It was intended that they would complete the pink forms and submit them to AFMA by the Monday following the receipt of the fish, and keep the yellow copies.

8 Initially the Fisheries Regulations did not contain a regulation requiring the keeping of records and the submission of returns by receivers of fish from the "South East Fishery". For the purpose of compelling them to keep records and submit returns, a new reg15A was made. It was gazetted on 19 December 1991. It provided as follows:

'Management Plan' means the South East Fishery (Individual Transferable Quota) Management Plan made by the Minister on 9 December 1991 and published in the Gazette on 9 December 1991;

'receiver' means a person who receives SEF species for processing for trade, or for sale by wholesale or retail, except:

(a) a person who receives SEF species for which a receiver is already required to lodge a return under subregulation (4); or

(b) a person who receives SEF species only for the purpose of transporting the fish from one place to another;

(a) the species of fish specified in Schedule 1 to the Management Plan; and

(2) This regulation applies only to SEF species taken by a boat in relation to which units under the Management Plan have been allocated or have been assigned as a result of a transfer.

(3) This regulation applies to receivers who operate in New South Wales, Victoria, Queensland, Western Australia, South Australia or Tasmania on or after 1 January 1992.

(4) A receiver who receives SEF species on any day must, within 24 hours after the end of the day, complete a return that contains the particulars specified in subregulation (8).

(5) The return must be in the form approved by the Minister.

(6) A receiver who is required to complete a return in any week ending at the end of a Sunday must give the Department a return before the end of the following Tuesday.

(7) A return may be sent or delivered to the Department at the address specified in the return form.

(8) For the purposes of subregulation (4), the following particulars are specified:

(b) the address of the depot at which the receiver received the SEF species; and

(c) the name (in block letters) of the individual who takes delivery of the SEF species for the receiver; and

(f) the date on which the receiver received the SEF species; and

(g) the quantity (in kilograms) of each SEF species that the receiver received in each of the following forms:

9 It was submitted on the voir dire that reg15A was ultra vires. I reject that submission. The power to make such a regulation was conferred by the 1952 Act, s17(1)(f), which provided as follows:

"The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and in particular -

(f) for providing for the furnishing of returns containing information in relation to -

(i) the taking of fish in Australian waters and the sale or disposal of such fish;

(ia) the carrying and transhipping of fish taken in Australian waters; or

(ii) the processing of fish in Australia or in Australian waters and the sale or disposal of fish so processed ...".

10 It is true that the Governor-General was not expressly empowered to make a regulation providing for the furnishing of returns containing information as to the receipt of fish. However, in my view, the information required to be recorded and submitted, as listed in reg15A(8), was all information in relation to the disposal of fish taken in Australian waters. When fish is disposed of commercially, information as to its receipt by its recipient must surely be information in relation to its disposal. For every disposal, there must be a receiving of some sort. It follows that the making of the regulation was authorised by s17(1)(f)(i).

11 Although the 1991 Act provided for the determination of plans of management, none were prepared in relation to the relevant fishery until after 1993. Instead, AFMA decided to manage the "South East Fishery" by issuing fishing permits under the 1991 Act, s32. A quota system was decided upon administratively. It was decided to implement this system through conditions imposed in respect of permits pursuant to the 1991 Act, s32(6)(a)(i), and by variations to such permits under s32(8). New versions of the SEF1 and SEF2 forms were designed and prepared for use under the 1991 Act. The system of white, green, pink and yellow copies of the SEF2 forms was maintained. Regulations were made to provide for a system of log-books under the 1991 Act.

12 Mr Abbott QC submitted that s32(6)(a)(i) did not empower the grantor of a fishing permit to impose a condition requiring the permit holder to keep records and/or submit returns as to fish catches. The relevant provisions in s32 read as follows:

(ii) prescribed in relation to permits granted under this section; and

(7) Without limiting the operation of paragraph (6) (a), the conditions that may be specified in a permit include conditions relating to:

(d) the methods or equipment that may be used to take fish; or

(e) the methods or equipment that may be used to process or carry fish."

13 As can be seen, the subsections are silent as to recording and reporting conditions, but the list of permissible types of conditions in s32(7) is not exhaustive. Under s42(1), regulations made under the 1991 Act may provide for the holders of fishing concessions (and that term is defined to include fishing permits) to record, and furnish returns containing, information as to the taking of fish under fishing concessions and the sale or disposal of such fish. Under s42(2), it is a condition of a fishing concession that its holder will comply with the requirements of any regulations made by virtue of s42(1). Mr Abbott QC submitted that, since recording and reporting requirements could be imposed on permit holders by a regulation under s42(1), and would then become the subject of permit conditions by virtue of s42(2), Parliament could not have intended AFMA or its delegates to have a concurrent power to impose recording and reporting conditions by virtue of the general power to impose conditions conferred by s32(6)(a)(i). He submitted that inconsistent requirements could be imposed upon permit holders if ss32 and 42 enabled different people to impose permit conditions in relation to the same subject matter. By virtue of the Acts Interpretation Act 1901 (Cth), s15AA, a construction of s32(6)(a)(i) that would promote the purpose or object underlying the 1991 Act must be preferred to one that would not promote that purpose or object. Having regard to the objectives set out in the 1991 Act, s3, I think it can fairly be said that one of the principal objects of that Act is to facilitate the management of Australia's fisheries by AFMA, particularly for the purpose of ensuring that the exploitation of fisheries resources is conducted in a manner consistent with the principles of ecologically sustainable development. An interpretation of s32(6)(a)(i) that would allow AFMA or its delegates to impose permit conditions as to recording and reporting when the Governor-General had not done so by means of s42 would, in my view, promote that object. I think it must follow that s32(6)(a)(i) permitted the grantors of permits to impose such conditions. Whilst it is technically correct that such conditions could be inconsistent with conditions in force by virtue of s42(2), I think the possibility of the grantor of a permit imposing a condition that was inconsistent with a regulation dealing with the same subject matter is such a remote one that it should not be taken into account for the purpose of determining Parliament's intentions.

14 The SEF2 forms in the form of log-book referred to in Logbook Notice No SEF2 published on 15 November 1991 contained an inaccurate warning as to the penalties for not completing and forwarding SEF2 forms. They asserted that maximum penalties of "$2,000 for persons and $10,000 for corporations" could be imposed upon conviction in such situations. However the maximum penalty prescribed for each relevant offence under reg18 was $2,000. No higher penalty was prescribed for offences committed by corporations. Under the 1952 Act, s17(1)(a), the Governor-General had the power to make regulations prescribing penalties of up to $10,000 for offences by bodies corporate against the regulations, but the power to prescribe a higher maximum in relation to corporations had not been exercised.

15 On one reading of the notices published in the Gazette on 15 November 1991, the area to which they purported to apply was defined so as to include the whole of the Australian mainland. This resulted from the use of the word "clockwise", rather than "anti-clockwise", in describing the boundaries of the area of the "South East Fishery". In my view this is not a matter that should carry any weight in relation to the discretions that I am being asked to exercise. There was an obvious mistake, and it would not have invalidated the notices, which applied only to waters within the area described.

16 It was intended that, as from the commencement of the new legislative regime on 3 February 1992, AFMA would manage all Commonwealth fisheries, including those where the repealed provisions of the 1952 Act continued to apply by virtue of the FLCP Act. In order for AFMA to exercise any powers pursuant to the 1952 Act, it needed delegated authority from the Minister and/or the secretary of the relevant department. The 1952 Act, s6A, empowered them to delegate all or any of their powers and functions, with certain exceptions, to any person or authority. The Minister signed an instrument of delegation dated 24 February 1992 purporting to delegate various powers and functions to various individuals pursuant to s6A. But that section had been repealed, and there were no transitional provisions in the FLCP Act that authorised the Minister to do anything that he purported to do by that instrument. That instrument was therefore a nullity. As a result, whenever AFMA purported to exercise any statutory power pursuant to the 1952 Act, it was purporting to exercise power that it did not have. But that is of no great significance in this case because, for reasons that I will explain, the FLCP Act did not operate so as to preserve the operation of any relevant provision of the 1952 Act in any respect relevant to this case.

17 Paragraph 11 of the 1991 management plan laid down formulae for the calculation of quotas applicable to particular boats in respect of orange roughy and other species. The formulae were statistically flawed. It has been held that no reasonable person could ever have devised the formulae, and that they were so unreasonable that par11 was void: Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 369; (1992) 37 FCR 363 (O'Loughlin J); Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381 (Full Court); La Macchia v Crean (1992) 110 ALR 201 (Burchett J). As par11 did not meet the test for serverability from the rest of the 1991 management plan, the whole of that plan was void: Coleman v Gray (1994) 55 FCR 412 per Gummow J at 431, Davies J agreeing at 415. It followed that the conditions as to quotas in the 1992 licences were also void, and that, since they were not severable, the 1992 licences were wholly void: Coleman v Gray (supra) per Gummow J at 437, Davies J agreeing at 415. I have held that, as the relevant licences were void, the FLCP Act, s6, did not operate so as to preserve the operation of the repealed provisions of the 1952 Act in relation to such licences: R v Turner (No 4) (supra) at pars39 - 63.

18 The notices published in the Gazette on 15 November 1991, whereby the Minister sought to activate the log-book provisions of the Fisheries Regulations, regs16 - 18, depended for their operation on the validity of the quota unit allocations under the 1991 management plan. The critical part of each notice was a determination in the following terms:

"... that subregulations 18(1), 18(2) and 18(3) of those Regulations shall apply in respect of the form of logbook referred to in paragraph ... of this Notice, to which the master of a boat, in respect of which units under the South East Fishery (Individual Transferable Quota) Management Plan 1991 have been allocated, or assigned as the result of a transfer, during the period beginning on 1 December 1991 and ending on 30 November 1994".

As the 1991 management plan was void, all purported allocations and assignments of units pursuant to it were nullities, and thus the notice in the Gazette did not apply to the masters of any boats. Thus there was never any legislative requirement under the 1952 Act whereby the masters of fishing boats were required to complete or submit SEF1 or SEF2 forms.

19 There was never a legal obligation under the 1952 Act for receivers to complete or submit SEF2 forms either. The Fisheries Regulations, reg15A, did not ever become operative. That was because subreg(2) made it applicable only when units had been assigned to a boat under the 1991 management plan. Again, as the plan was void, that never happened. Even if the quota allocation formula in the 1991 management plan had been reasonable, and that plan and the 1992 licences had been valid, reg15A would not have come into operation because no form of return was ever approved by the Minister pursuant to subreg(5) after the making of that regulation. The question whether the Minister ever so approved a form became a significant issue in these proceedings, but the Crown was unable to produce any evidence of any such approval. I therefore infer that there was no such approval.

20 After the decision of O'Loughlin J in Austral Fisheries, AFMA did not acknowledge that the 1991 management plan was totally invalid, nor that the 1992 licences were totally invalid, nor that the 1952 Act had ceased to apply to the "South East Fishery" as from 3 February 1992. Instead, the Minister purported to amend the 1991 management plan by inserting a par11A which purported to allocate additional quota units to various vessels in addition to those purportedly allocated by par11. He purported to do this by an instrument entitled "The South East Fishery (Individual Transferable Quota) Management Plan 1991 (Amendment)" which was dated 9 October 1992 and notified in the Gazette on that day. If the 1991 management plan had been valid, it could have been amended validly by the Minister as a result of the combined operation of the 1952 Act, s7B, the Acts Interpretation Act, s33(3), and the FLCP Act, s6(1). But the 1991 management plan was a nullity. It was not a management plan for the purposes of the 1952 Act at all. It was therefore not something that the Minister had the power to amend. He certainly could not validate it by a process of purported amendment: R v City of Moorabbin; ex parte Story [1955] VicLawRp 27; [1955] VLR 142. The purported amendment treated par11 as valid, when both O'Loughlin J and Burchett J had delivered judgments holding that it was not.

21 The void 1952 Act licences could have been replaced by valid permits under the 1991 Act, s32, but this was not done until 1993. As a consequence, all fishing for orange roughy in the area of the "South East Fishery" in 1992 was unlawful. While the 1952 Act remained in force, such fishing contravened s13(1)(b)(i) thereof, which prohibited the use of a boat for taking fish in an area of proclaimed waters without an appropriate licence. After the 1991 Act commenced on 3 February 1992, such fishing contravened s95(1)(a) thereof, which prohibited commercial fishing in the Australian fishing zone without a "fishing concession" (ie, a fishing permit or a statutory fishing right), a scientific permit, or a "Treaty licence". No steps were taken by AFMA to issue fishing permits under the 1991 Act in respect of the "South East Fishery" for any period prior to 1993 because it was not acknowledged that the 1992 licences were void, nor that commercial fishing in the "South East Fishery" could only be authorised pursuant to the 1991 Act after 3 February 1992. Similarly, no steps were taken to put in place for the year 1992 a revised system of log-books and returns to replace the system whose lawful operation depended on the validity of the 1991 management plan and par11 thereof in particular.

22 The 1991 Act, ss17 - 20, provided for a system of plans of management, and ss91 - 93 established a system of fish receiver permits that could operate only in relation to fisheries to which plans of management applied. Compelling receivers by means of permit conditions to keep records and submit returns was made possible under ss91 - 93, but only in respect of the holders of fish receiver permits. Under s42(1), the Governor-General was empowered to make regulations requiring the holders of fishing concessions to record, and furnish returns containing, information in relation to the taking, sale and disposal of fish. Since Parliament made specific provision for regulations requiring the keeping of records and submission of returns in ss42(1) and 92(2), it must follow that the general regulation-making power conferred by s168(1) was not intended to authorise the making of regulations compelling anyone else to keep records or furnish returns. Expressio unius est exclusio alterius. AFMA officers decided as early as May 1992 that it was desirable to amend the 1991 Act so that receivers could be compelled to keep records and submit returns whether a plan of management was in force or not, but it took until October 1994, when the Primary Industries and Energy Legislation Amendment Act (No 2) 1994 received the Royal assent, for them to get the 1991 Act appropriately amended. The result of all this was that receivers were not required to complete the pink and yellow parts of SEF2 forms at all in 1993.

23 Further, because the wording of s42(1) limited its operation to the holders of fishing concessions, it was not possible for regulations to be made under the 1991 Act requiring the masters of fishing boats to complete or submit SEF1 or SEF2 forms. Regulations requiring such forms to be completed and submitted could only be binding upon the holders of fishing permits and other fishing concessions.

24 Although the 1991 Act, s42, authorised the making of regulations requiring the holders of fishing concessions to keep records and supply information, the only regulations that were made in relation to the subject were ultra vires. When the Fishing Management Regulations were made pursuant to the 1991 Act, reg32(1) purported to delegate the power to make determinations prescribing forms of log-book to the chairperson of AFMA. That sub-regulation infringed the rule against sub-delegation. The Governor-General was not authorised to delegate the power conferred by s42(1) to the chairperson of AFMA or anyone else.

25 The chairperson of AFMA published two notices in the Gazette on 22 December 1992 in purported pursuance of the Fisheries Management Regulations - Logbook Notices Nos SEF1 and SEF2. They purported to be determinations requiring the use of SEF1 and SEF2 forms respectively. Both notices were nullities since their validity depended on reg32(1), which was ultra vires. Further, even if reg32(1) had been valid, Logbook Notice No SEF2 would still have been invalid because it failed to comply with reg32 in certain respects which I detailed in an earlier ruling: R v Turner (No 6) [2001] TASSC 89 at pars24 - 27. It did not specify a kind of fish, as required by reg32(1)(a), but purported to refer to all fish, except for one family of prawns. It purported to require the use of the November 1991 forms of log-books until users individually received the new forms of log-books, despite reg32(2) being so worded as to require only one form of log-book to be prescribed. It purported to apply for a period starting less than 14 days after notification in the Gazette, contrary to reg32(8), and ending more than three years after that notification, contrary to reg32(9). The SEF2 forms contained instructions addressed to fishermen and receivers, when only permit holders could be bound pursuant to the regulations.

26 On 24 December 1992, two days after the publication of the new log-book notices in the Gazette, significant amendments to the Fisheries Management Regulations were gazetted. Regulation 32, which provided for determinations in relation to log-books, was amended by taking away the powers of AFMA's chairperson and giving those powers to AFMA. That did not cure the sub-delegation problem that I have referred to. The amended reg32 was void because the Governor-General was not authorised to delegate the power conferred by s42(1) to AFMA, just as he was not authorised to delegate that power to its chairperson. Regulations 33 and 34, which purported to create a series of offences in relation to the non-completion of log-books by masters of boats, were repealed. They were replaced by new regulations which recognised that the obligation to keep log-books could only be imposed upon the holders of fishing permits and other fishing concessions. I infer that the amendments were made because someone had realised that s42(1) permitted the making of regulations imposing recording and reporting requirements only on the holders of fishing concessions, as distinct from masters. The new regulations did not purport to create offences, but instead required the recording of information in approved log-books. Under s42(2), as I have said, it was a condition of every fishing concession that its holder would comply with the requirements of any regulation made by virtue of s42(1). Under s95(1)(d), it was an offence for the holder of a fishing concession to contravene a condition of that fishing concession. However this new regime depended for its validity on the approval of log-books pursuant to reg32, and that regulation was ultra vires. Had reg32 been valid, the wording of the notices gazetted on 22 December 1992 was such that fresh determinations and notices would have been necessary, but none were made or published.

27 AFMA issued permits pursuant to the 1991 Act, s32, authorising commercial fishing in the "South East Fishery" in 1993. I have held that the relevant permits were validly issued: R v Turner (No 9) [2001] TASSC 97. However, as I held in R v Turner (No 6) (supra) at par28, par4.6 of each of the 1993 permits, which purported to require the permit holder to ensure the completion and lodgement of SEF1 and SEF2 forms in accordance with the instructions on each of them, was void for unreasonableness. There was thus no obligation on anyone to complete or lodge such forms in 1993.

28 The new SEF2 forms introduced after the publication of the notices of 22 December 1992 contained many incorrect and misleading assertions to the effect that the law required the forms to be completed, and that penalties could be imposed on fishermen and receivers who did not complete them. The front page contained the following:

* Parts A and B must be completed by the permit holder or his representative of any boat in respect of which a permit has been issued to allow its operation in the South East Fishery or which has been used to take fish (other than prawns of the family Penaeidae) by trawling in the South East Fishery.

* Fish must be weighed, and the receiver must complete Part C immediately upon receipt of the fish and before the fish are placed with any fish that are not part of that consignment.

What penalties apply in relation to these forms ?

* If the white copies of these forms are not lodged at a nominated location within 24 hours or if the forms provided are not accurate and complete, AFMA may suspend the offending fisherman's SEF permit until it receives complete and accurate records. These forms must be lodged with AFMA or its agent within 24 hours of unloading.

* Under subsection 42(2) of the Fisheries Management Act 1991 it is a condition of a fishing concession that holders comply with regulations relating to the provision of returns. The courts can impose maximum penalties of $10,000 upon conviction for the offence of contravening a condition of a fishing concession.

* Under section 107 of the Fisheries Management Act 1991 the courts can impose maximum penalties of imprisonment for up to 12 months for persons upon conviction for the offence of providing information in a record, report, return or other document that is to the knowledge of the person false or misleading in a material particular."

29 The white and green pages of the new SEF2 forms contained the following warning:

AFMA policy provides that the SEF permit will be suspended if the permit holder or his representative fails to lodge this record, accurately completed within 24 hours of the unloading, to AFMA or its agent."

30 The following was included on a page setting out instructions for processors:

"You are legally required to provide this information in Part C of the form for all species received.

What penalties apply in relation to these forms ?

* Maximum penalties of $1000 can be imposed by courts upon conviction for the offence of not providing the required information, with a similar penalty applied for not forwarding returns within the required time.

* Maximum penalties of imprisonment for up to 12 months can be imposed by courts upon conviction for the offence of providing information in a record, report, return or other document that is to the knowledge of the person false or misleading in material particular."

31 In or about March 1993 it was decided to require returns to be submitted to AFMA giving details of the transportation from vessels to receivers of fish caught in the "South East Fishery". These forms were known as SEF3 forms. It was intended that they be completed whenever more than one vehicle was used to transport a load of fish from a vessel to a receiver. The Managing Director of AFMA sought to implement this by signing a notice and publishing it in the Gazette. He signed Logbook Notice No SEF3 on 18 March 1993. It was gazetted the following day. By virtue of the Fisheries Administration Act, s44(3), he could do in the name of AFMA anything that it could do. But, whilst reg32(1) (as amended) purported to empower AFMA to determine a form of log-book that must be used in relation to a kind of fishing activity, it was ultra vires because of the sub-delegation problem that I have referred to. Thus Logbook Notice No SEF3 was void.

The circumstances in which AFMA obtained SEF1 and SEF2 forms

32 For the reasons I have stated above, AFMA did not have the legal right to require anyone to submit SEF1 or SEF2 forms in 1992 or 1993. The forms all contained printed warnings asserting that fines, and in some circumstances prison sentences, could be imposed if they were not completed, or not submitted promptly. They also contained warnings that quota units or fishing permits could be suspended if they were not completed, or not submitted promptly. The evidence satisfies me that there was a high level of compliance with AFMA's instructions to complete and lodge such forms in 1992 and 1993. I infer that it was not ever generally known or understood that no-one was obliged to complete or lodge such forms in those years, and that those who completed and lodged them did so as a result of AFMA telling them that they were required to do so, and advising them of possible fines, imprisonment and administrative penalties if they did not. Defence counsel have argued that, for the purposes of the public policy discretion to exclude illegally obtained evidence, all these forms were illegally obtained by AFMA.

33 It is important to consider the extent to which it was realised by individuals in positions of authority during 1992 and 1993 that AFMA was not entitled to require fishermen, permit holders or receivers to submit SEF1 and SEF2 forms.

34 It has been submitted that certain AFMA officers, as well as Sgt Allen of the Tasmania Police, whilst incorrectly assuming that the relevant provisions of the 1952 Act remained in force until the end of 1992, understood that there was no compulsion on receivers to submit SEF2 forms while the 1952 Act remained in force because the Minister had not approved a form of return pursuant to the Fisheries Regulations, reg15A(5), after the making of reg15A. I have been asked to infer this from a number of pieces of evidence.

35 In an AFS internal minute dated January 1992 from Mr Bill Anderson, then the Acting Assistant Manager, Licensing and Surveillance, to Mr Peachey, then the Manager, Licensing and Surveillance, Mr Anderson wrote that "on examining the relevant Fisheries Notices it would seem that the only enforceable offence currently being committed would be failure of Masters to complete SEF1 and SEF2 catch reports". However, when one reads that comment in context, it is apparent that Mr Anderson was not implying that receivers were not obliged to complete and submit SEF2 forms. In the previous paragraph, he explained that licences for 1992 had not been issued because of delays, and that operators were fishing without licences. His point was that it would be inappropriate to prosecute anyone for unlicensed fishing, and that fishermen could only be prosecuted for failing to complete forms.

36 On 9 March 1992 Mr Paul Ryan, who was then working for AFMA as the Assistant Manager, Fishing Operations, prepared a memorandum listing areas of concern in relation to quota monitoring. He described the first problem he mentioned as "Lack of documentation past first receiver". However it is apparent that the word "receiver" was used by AFMA officers to refer to the first processor to whom fish were delivered after landing. Mr Ryan certainly used the term that way in faxes that he sent to various people in August and September 1992 concerning proposed changes to the quota monitoring system.

37 Mr Ryan was the manager of AFMA's Monitoring Unit from early 1992 until January 1993. He gave evidence during the Basha enquiry. During cross-examination he was asked whether he was aware as early as January 1992 that the only enforceable offence was that created by the log-book notice with respect to the failure of masters to complete forms. He was referred to the passage that I have quoted from Mr Anderson's memorandum, and said that he did not know when he became aware that that was Mr Anderson's opinion, implying that he did become so aware at some stage. The following exchange occurred during his cross-examination by Ms Powell QC:

"And can you go to the last page of MFI96? Gave instructions to processors didn't you? ... Yes.

And you reinforced what you said in the body of the form by again telling them about penalties? ... That's correct, yes.

And these were the SEF2 forms which you utilised in your Monitoring Unit throughout the 1992 year? ... That's correct, yes.

And again in 1993 when you told them they could continue to use up their old books until they got new ones? ... Yes I - that does sound familiar, yes.

Even though as early as January in 1992, as early as January, AFMA were those responsible up to the level of the Manager, Licensing Surveillance, and through the information going through to the Acting General Manager that you knew that you had no ability, no legal ability to demand this information of the receivers ... Apparently, yes."

38 I am not confident that, in giving the last answer quoted, Mr Ryan was assenting to the proposition that he knew as early as January 1992 that receivers were not obliged to complete and submit SEF2 forms. I think he went no further than to accept in haste that Mr Anderson's memorandum should be taken as indicating that that view was held by others in January 1992.

39 On 18 March 1992 Sgt Wayne Allen of the Marine Division of the Tasmania Police (now a civilian) sent a letter by fax to Mr David Coutts, who was then the Acting General Manager, Southern Fisheries, within AFMA. He made a series of very sensible suggestions for the improvement of monitoring arrangements in relation to quota restrictions for the "South East Fishery", and a number of suggestions which would have required amendments to the 1952 Act (assuming its relevant provisions still to have been in force) and the Fisheries Regulations. He listed six suggested requirements for the documents to be completed and lodged by processors, including "(iii) processor liable for proper completion of document". However I do not think this gives any indication that he realised that reg15A had not commenced to operate. I have approached Mr Allen's evidence with some caution, since one important part of his evidence appeared to be inconsistent with a memorandum to which I will refer later. However I accept Mr Allen's evidence that he wrote the words I have quoted because of a concern that processors were submitting partly completed documents, and a belief that a new offence should be created prohibiting the submission of such incomplete documents by them.

40 On the same day, 18 March 1992, Mr Peachey, who by then was AFMA's Manager, Operations, sent a memorandum to Mr Coutts, the then Acting General Manager of AFMA, setting out some thoughts in relation to a review of the 1991 management plan that had been ordered by the Minister. In that memorandum he wrote, "the monitoring system depends on supervision of the unloading of catches - because there is no reliable or enforceable documentation beyond the unloading ...". I accept his evidence that he was thereby referring to the lack of any legislative requirement as to the provision of documentation by anyone after the first processor or receiver of fish. He was not using the word "unloading" to refer to the unloading of fish from a boat onto a wharf, but was referring to unloading at the first destination or point of delivery after fish were brought ashore.

41 I am not prepared to infer that Mr Anderson, Mr Ryan, Mr Peachey, Sgt Allen, or anyone else perceived during 1992 that receivers were not obliged to lodge SEF2 forms because the Minister had not approved any form under reg15A(5), since there is a reasonable alternative explanation for each piece of evidence suggesting such a perception, and no direct evidence of any such perception.

42 The first judgment in which par11 of the 1991 management plan was held to be void was delivered on 28 July 1992 by O'Loughlin J: Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (supra). The application to the Federal Court had apparently been filed in January 1992. The case was heard in March 1992. AFMA officers would have been aware for months prior to the judgment that the validity of the system of allocation of quotas was being challenged in that case, but the evidence before me suggests that AFMA and its officers simply proceeded as if there was no reason to doubt the validity of par11. A surveillance operation in relation to the enforcement of quota restrictions was commenced in Victoria. On 9 July 1992 one of AFMA's in-house lawyers sent an officer of the DPP a thorough summary of the legislative provisions and instruments applicable to the "South East Fishery" without mentioning any pending litigation or doubts arising as a result thereof. The legal representatives of the accused made amazingly thorough efforts to expose all AFMA's documentation as to the invalidity or possible invalidity of the 1991 management plan and parts thereof, but nothing has come to light to suggest that, prior to the decision of O'Loughlin J, any thought was being given to the possible consequences of the Austral Fisheries application succeeding.

43 After the Austral Fisheries decision of 28 July 1992, AFMA sought advice as to the implications of the decision and the merits of an appeal. Such advice was provided both by the Australian Government Solicitor's in-house counsel, Ms Singh, and by Mr Tracey QC, who had appeared for the Minister at first instance. In written advice provided on 5 August 1992, Ms Singh said she thought an appeal would probably succeed, but she recognised (a) the possibility that an appeal might fail; (b) the possibility that par11 of the management plan might be held not to be severable from the rest of that instrument, with the result that the whole plan might be declared void; (c) the possibility that, if the plan were declared void, it might be declared void ab initio; (d) the fact that a purported amendment to the plan to make reasonable the formulae in par11 would be of no effect if the plan were void; and (e) the need for the fishery to be managed by means of permits, presumably under the 1991 Act, s32, if the plan were void. Mr Tracey QC provided a memorandum of advice dated 18 August 1992, in which he said that the worst case scenario would be that the plan would be struck down in its entirety, in which case there would then be "no regulatory regime for any species anywhere within the area covered by the plan". However he also advised that an appeal would probably succeed. At that stage O'Loughlin J had not made his final orders, and it was considered possible that he might make a declaration declaring the whole plan void. As things turned out, no judge ever said that the whole plan was void until the Full Court's decision in Coleman v Gray (supra) on 23 December 1994.

44 A joint AFP/Tasmania Police surveillance operation relevant to this trial commenced the day after O'Loughlin J gave judgment, and continued until 31 August 1992. It formed part of a larger interstate police operation known as "Operation Asteroid". O'Loughlin J made formal orders on 2 September 1992 declaring void par11 of the 1991 management plan. By 4 September 1992, an officer of the DPP had advised that future investigations concerning "Operation Asteroid", which related to the exceeding of quota restrictions and the understatement of catches in SEF2 forms, should be placed on hold until further notice. That was done.

45 On 11 September 1992 Burchett J also held that par11 of the 1991 management plan was void: La Macchia v Crean (supra). However his Honour declined to make a declaration that the whole of the plan was void, on the basis that it was not appropriate for him to decide that point.

46 Apparently on the recommendation of AFMA, the Minister decided to appeal from the judgment of O'Loughlin J in Austral Fisheries. Pending the hearing of that appeal, AFMA sought the co-operation of fishermen, and advised them in September 1992, through media releases, to conform to the conditions of the 1991 plan and the "requirements for the reporting of catches". They were warned not to gamble on the outcome of the appeal by fishing beyond the original quota allocations. AFMA sought to overcome the unreasonableness of par11 of the 1991 plan by means of the purported Ministerial amendment that I have referred to.

47 The consequences of the Austral Fisheries and La Macchia decisions were very serious for AFMA. In effect they destroyed AFMA's management regime for the "South East Fishery", and left it temporarily out of control. There was a possibility that major investigations and prosecutions, which might have resulted in substantial fines and forfeitures, would have to be abandoned. There was a risk that substantial sums collected by way of levies in respect of quota allocations would have to be refunded on the basis that the quota allocations had been invalid.

48 For the rest of 1992, SEF1 and SEF2 forms in their original form remained in circulation. It seems that, to a substantial extent, fishermen and receivers continued to complete and submit those forms. AFMA did nothing to withdraw them from circulation, amend them, or advise fishermen and processors that the forms were in any way misleading. Two judges had held that par11 of the 1991 management plan was void. Even if the rest of the plan had not been void, that would still have meant that there were no valid quota allocations for 1992, that the Logbook Notices of November 1991 and reg15A did not apply to anyone or anything, and that there was thus no obligation on anyone to complete or submit SEF1 or SEF2 forms. The warnings in those forms as to fines and suspension of quota entitlements were baseless.

49 These consequences of the Austral Fisheries decision were not difficult to deduce, and I infer that they were deduced within weeks of the Austral decision. A meeting was held in Canberra on 9 September 1992 to discuss the impact of Austral Fisheries and related cases. It was attended by Ms Singh, a number of officers of the DPP, and a number of AFMA officers, including Mr Anderson (a "senior operators officer" whose duties concerned the detection of offences and the prosecution of offenders), Mr Venslovas (the Manager of the Licensing and Surveillance Section), and three members of the Legal Section, namely Mr Palmer, Mr Nielander, and Mr Pintori. Only limited information as to what was said at that meeting has come to light.

50 On 15 September 1992, Det Sgt Scruton of the Australian Federal Police ("AFP") in Sydney obtained a search warrant in the course of the investigation that led to the Full Court's decision in Coleman v Gray (supra). To obtain that warrant he swore an information which included the following paragraphs:

"23 At present there are two Federal Court challenges to the validity of the 1991 SEF Plan, one in Adelaide and one in Sydney. On 2 September 1992, Justice O'Loughlin, the judge in the Adelaide Federal Court proceedings, declared paragraph 11 of the 1991 SEF Plan to be void. His Honour stayed his order for 21 days to permit the Minister to consider whether to appeal against this order.

24 If there is no appeal against Justice O'Loughlin's order, or if any such appeal is unsuccessful, this will mean that the requirement to report and record catches of gemfish was ineffective as that requirement only applied to boats which had units of quota assigned to them under the 1991 Plan."

Det Sgt Scruton would probably not have been aware of the two Federal Court appeals unless he had been in touch with officers of AFMA and/or the DPP. I infer that he had been in touch with at least one such officer, and that the officers who attended the meeting on 9 September 1992 must all have realised by then, if not earlier, that the decision of O'Loughlin J meant that no-one was required to complete or submit SEF1 or SEF2 forms. Counsel for the Crown submitted to the contrary, but I do not think that consequence of the Austral Fisheries decision could possibly have escaped those who attended the meeting that was called in Canberra specifically for the purpose of discussing its consequences. I note that Mr Peachey displayed an understanding that the decision meant that operators no longer had a duty to fill out logbooks in a letter he wrote to Supt Draffin of the AFP on 23 September 1992. From 9 September 1992 at the latest, AFMA demanded and received SEF2 forms knowing that it followed from the decision of O'Loughlin J that its demands for those forms were unlawful.

51 On 25 August 1992 a solicitor from Eden, who was acting for a fish processor, wrote to the managing director of AFMA enquiring as to the record-keeping requirements applicable to his client in relation to the "South East Fishery". The letter was passed to the manager of the Monitoring Unit, Mr Paul Ryan, who replied by letter dated 30 September 1992, in the following terms:

"The Fisheries Regulations require that a receiver who receives SEF species from a boat, in relation to which quota under the South East Fisher (Individual Transferable Quota) Management Plan has been allocated or assigned, must within 24 hours of the end of the day on which the fish is received complete a return that contains the particulars specified in the Regulations and lodge that return by the Tuesday of the following week. The Minister for Primary Industries and Energy has determined that the SEF2 Catch Disposal Record is the appropriate return for the South East Fishery.

I have enclosed a copy of Statutory Rules 1991 No 438 which imposes those requirements."

52 The Statutory Rule referred to in the letter is the one which inserted reg15A into the Fisheries Regulations, providing for returns by receivers under the 1952 Act. Although I have found that the Minister had not determined a form for the purpose of reg15A(5), I am not satisfied that Mr Ryan realised that, and am prepared to treat his assertion to the contrary as mistaken, rather than dishonest. In all probability Mr Ryan would have been aware that, if Austral Fisheries had been correctly decided, there were no valid quota allocations and therefore receivers were not obliged to complete or submit SEF2 forms. If he was not aware of that, he should not have been given the task of responding to the solicitor's letter. What he wrote ignored the decisions of two judges, and was positively misleading. It is consistent with a policy on the part of AFMA officers to pretend that the law was as AFMA wanted it to be.

53 On 12 August 1992 Mr Ryan, then the Assistant Manager, Fishing Operations, sent a fax to members of a number of State Government offices, including Sgt Allen and Const Dix of the Tasmania Police, suggesting various changes to the log-book arrangements for the "South East Fishery". One of the proposed changes was an amendment to the 1991 Act so as to provide for fish receiver permits in fisheries that were not the subject of plans of management under that Act. This is the earliest indication I have of anyone noticing the legislative difficulty that I referred to in par22 above. Plainly Mr Ryan realised that, under the 1991 Act, receivers would not be obliged to complete or submit SEF2 forms for fish from fisheries not covered by plans of management unless and until an appropriate amendment was made to that Act. Sgt Allen and Const Dix both gave evidence that they had no idea during 1993 that receivers were not obliged to complete and submit SEF2 forms. I infer that one of them must have received Mr Ryan's fax.

54 On 22 March 1993, AFMA made a submission to the Senate Standing Committee on Industry, Science and Technology. That submission contained a proposal for an amendment to the 1991 Act so that receivers could be compelled to complete returns in respect of all fisheries, rather than managed fisheries only. That submission was prepared by AFMA's Legal Section.

55 The problem concerning receivers was referred to in two different papers that were placed before the AFMA board at its meeting of 27 and 28 May 1993. In a paper dated 17 May 1993 concerning the entitlements systems administered by the Licensing Unit of AFMA, Mr Peachey (then the General Manager, Operations and Corporate Services) wrote the following concerning SEF2 forms:

"The second copy stays with the fisherman and the third and fourth copies are sent with the product to the receiver. The receiver completes the accurate weight details. (This cannot be enforced until a management plan is in place. The legislation only allows this to be a mandatory requirement in a managed fishery; ie one for which there is management plan in place.) The processor keeps a copy and Authority is sent a copy."

Mr Peachey mentioned the problem only in passing; did not mention that receivers were being told they could be fined for not submitting SEF2 forms, and were routinely submitting them; and made a comment that could be taken as suggesting that receivers were freely choosing whether to submit them. The board's minutes refer to Mr Peachey's report, but not to the relevant problem. Its minutes record that it gave its full support to the managing director in doing whatever was necessary to ensure that the licensing and entitlement system was operating efficiently and effectively.

56 The other relevant paper before the board at the same meeting was a report on the quota monitoring system dated 13 May 1993 and written by Mr Geoff Richardson, the Assistant Manager, Southern Fisheries. That report included the following:

"A problem with the 1993 legislation is the inability of AFMA to enforce the completion of SEF2 - Catch Disposal Records by receivers. The 1991 Act only allows conditions to be placed on receivers, such as the mandatory completion of returns, where they are receiving fish from a 'managed' fishery; ie a fishery with a Management Plan in force under the 1991 Act. This means the Monitoring Section is monitoring the fishery, and decrementing quota, based on the SEF2s completed by the processors where they decide to complete the SEF2 form voluntarily (as they cannot be forced to complete the forms). In all other cases where the processor chooses not to complete the SEF2 form, quota is decremented using the SEF2 weights determined by the fishermen.

Advice has been given to the AFMA Legal and Policy areas recommending the amendment of the 1991 Act to allow for Fish Receiver Permits in 'unmanaged' fisheries such as the SEF and this will be put to the Senate review."

57 The minutes record AFMA's response to this report in the following sentence:

"The Board noted the continuing problems and agreed that the Managing Director should pursue these as part of the overall review of the licensing and entitlement system."

58 Although AFMA was well aware of this problem at officer level, and its board had been informed of it, it seems that it was treated as if it was unimportant. Receivers were receiving SEF2 forms, completing them, and sending them to AFMA. As appeared earlier, the forms prepared for use under the 1991 Act warned them of fines of up to $1,000 if they were not completed, or not promptly forwarded. Officers of the Tasmania Police routinely inspected processors' premises, and checked their SEF2 records, as if the processors had a duty to keep them. No steps were taken to correct the misleading warnings in the forms, to withdraw the forms from circulation, to inform receivers that they were not obliged to complete or submit them, or to stop the police inspections. It was AFMA policy to undertake a thorough and wide-ranging process of consultation before any change of policy. The Senate Standing Committee was undertaking its inquiry as its own pace. Although there was an urgent need for the legislative amendment proposed by Mr Paul Ryan, it seems no-one identified any need to expedite the obtaining of that amendment, nor any need for AFMA to conduct itself in accordance with the law as it stood prior to the amendment being made.

59 Mr Peachey wrote to an assistant commissioner of the AFP on 4 June 1993 to initiate the resumption of surveillance operations concerning orange roughy quota offences and related log-book offences in the "South East Fishery", without mentioning the problem in relation to receivers. However I accept that he was a public servant of such seniority that the relevant problem was a matter of detail that he confidently left to others. Mr Anderson had meetings with AFP officers frequently in 1993 and 1994 in relation to investigations and prosecutions involving receivers' SEF2 forms, but apparently never revealed the problem to any of them.

60 On 27 September 1993 in Melbourne, Federal Agent Damien Ryan was working on the drafting of a standard form of information that could be used for seeking search warrants under the 1991 Act in the course of "Operation Matrix". He recommended to his immediate superior, Det Sgt Black, that advice be sought from Mr Anderson of AFMA. Accordingly, Det Sgt Black authorised the sending of Agent Ryan's incomplete draft information by fax to Mr Anderson. The draft contained a paragraph explaining SEF2 forms, which ended with the following sentence:

"It is the receiver's responsibility to immediately complete Part C of the SEF2, which gives the receiver's details and verification of fish weights."

That was sent to Mr Anderson on 27 September 1993. Sentences asserting that receivers had a responsibility to complete and lodge SEF2 forms in 1993 had earlier been included in a draft information faxed by Det Supt Draffin of the AFP to Det Sgt Allen of the AFP on 25 August 1993, and in an affidavit sworn by Const Dix of the Tasmania Police on 24 September 1993 for the purpose of obtaining search warrants in connection with a company called Fishpak.

61 On 29 September 1993, Det Sgt Black gave Federal Agent McKay another draft of the information that Agent Ryan had been working on. Mr McKay thought that draft was probably the document tendered on the voir dire as exhibit VD89, but he might have been mistaken. In exhibit VD89, the paragraph concerning SEF2 forms had been revised, so that the last sentence read as follows:

"The Receivers' [sic] are also requested to complete Part C of the SEF2, which gives the receivers' details and verification of fish weights."

The same sentence appears in a draft information prepared by Agent Ryan that was submitted to senior counsel for settling on 22 October 1993, in a pro forma information settled by senior counsel, and in informations sworn by Agent Ryan and Det Sgt Black on or about 9 November 1993 to obtain warrants in relation to the Guillot family and related entities.

62 Someone had changed the wording to remove any suggestion that receivers had a legal obligation to submit SEF2 forms, and to suggest that they were only submitting such forms as a result of AFMA requesting them to do so. Messrs Black, Ryan and McKay all gave evidence on the voir dire to the effect that they had been unaware that receivers were not obliged to complete and submit SEF2 forms in 1993; that they had no recollection of having noticed the sentence asserting only that receivers were requested to complete SEF2 forms, as distinct from having a responsibility to complete them; and that they would not have understood the significance of such a distinction. Agent Ryan gave evidence that he had undertaken a lot of cutting and pasting, using a computer, in 1993; that he did not know the source of the sentence in question; and that it was the sort of information that would in all probability have come from AFMA.

63 Mr Anderson did not give evidence on the voir dire, but I am not prepared to drawn any adverse inference from that fact because I received evidence that he has a terminal illness and was unwilling to give evidence on the voir dire. The Crown did not call any officer from AFMA's Legal Section to give evidence on the voir dire although one such officer, Mr Palmer, came to Hobart for the purposes of this case during the voir dire. However I do not see any need to take those matters into account. Plainly, someone associated with AFMA revised the sentence in question, without drawing the change to the attention of any AFP officer, in the hope of creating an impression that receivers were submitting SEF2 forms voluntarily. The knowledge that receivers were not obliged to submit such forms in 1993 was apparently not shared with AFP officers. AFMA officers no doubt wanted AFP officers and receivers to believe that there was an obligation to complete and submit such forms.

64 When affidavits were prepared for the purpose of obtaining the search warrants relevant to this case in December 1993, a different form of words was used, as follows:

"When the consignment of fish is received at the processing factory, the fish are to be accurately weighed and Part 'C' of the SEF2 completed with the receiver's details, species of fish and the verification of fish weights. The receiver of the fish must also sign a declaration contained therein attesting to the accuracy of the information and then forward the form to AFMA on the following Monday after the date of the unloading."

65 This wording appears in affidavits sworn by Federal Agent McKay in December 1993 and June 1994. It also appears in an affidavit sworn by Const Chilton of the Tasmania Police in relation to the Port Lincoln premises in December 1993. I infer that it was used in all the relevant affidavits in those months. Mr McKay said he drafted the relevant paragraph using the instructions printed on the SEF2 forms. He said he had not been aware until 1995 that receivers had no legal obligation to submit SEF2 forms in 1993. He produced a draft report prepared by an officer of the Australian National Audit Office in March 1995 which explained what the position had been prior to the 1991 Act being amended in 1994. I accept that Mr McKay first learned the true position from that document, and that he and his fellow officers did not realise that the receivers were under no legal obligation to submit SEF2 forms when they prepared and swore affidavits in 1993 and 1994.

66 All of the AFP officers and former officers who gave evidence on the voir dire said that they had not known that receivers were not obliged to lodge SEF2 forms, or that it had not been suggested to them that there was no legal obligation upon receivers to do so. Some of those witnesses were less impressive than others, but none were shaken in what they said. As I have said, the SEF2 forms published by AFMA in log-books for use in 1993 contained instructions to receivers to the effect that they were required to complete the forms and lodge them promptly, and could be fined if they did not comply. These forms were made available to the AFP officers. I accept that they took them at face value, and assumed that AFMA's assertions in the forms were true, and that the instructions to the receivers had a sound legal basis. The "Operation Asteroid" surveillance operation of 1992 had had to be repeated because of bureaucratic blundering. I therefore expect AFP officers would have been unwilling to risk wasting their time in relation to the 1993 investigation. They would hardly have been likely to make deliberate false assertions as to the duties of receivers in affidavits, or to include such assertions in affidavits to be sworn by others.

67 Apart from the documents containing a sentence asserting that receivers were only requested to complete SEF2 forms, there is no evidence to suggest that anyone from AFMA ever revealed anything to any AFP officer as to receivers not being obliged to complete and submit SEF2 forms in 1993. The sentence in question could easily have been overlooked. It is preceded by several mind-numbing pages of material explaining the legislative and administrative arrangements concerning the "South East Fishery". Very few non-lawyers would be alert enough to avert to the distinction between a request and a requirement when reading informations or affidavits like the ones in question.

68 There is some evidence that Tasmania Police officers were aware of the deficiency in the 1991 Act concerning the power to compel receivers to keep records and submit returns. As I have said, Mr Ryan's fax of 12 August 1992 was sent to Sgt Allen and Const Dix. Further, an internal memorandum from Const Pearson to Sgt Allen dated 27 July 1993 reveals an understanding that a processor could not be forced to allow routine police inspections of its documentation as to fish received "due to the fact that no fish receiver permits are in force for the South East Fishery". Such inspections were routinely carried out by officers of the Marine Division of the Tasmania Police throughout 1993. It seems no steps were taken by AFMA to prevent or stop such inspections.

69 Const Pearson of the Tasmania Police and Mr Allen, his former sergeant, both gave evidence that they used to make routine inspections of receivers' premises in order to check that their SEF2 forms were being correctly completed and kept. Const Pearson said he believed he had general power to enter such premises and make inspections without a warrant; that he believed he did not need the consent of the proprietor; and that he believed he was entitled to do so whether or not he believed an offence had been committed. That was not correct. Whilst the 1991 Act, s84, confers wide powers on officers in relation to boats and the premises of the holders of fish receiver permits, the powers conferred in relation to other land and premises are more limited. Under s84(1)(d), an officer may enter land or premises if he or she has reasonable grounds to believe there is, on the land or in the premises, anything that may afford evidence as to the commission of an offence against the 1991 Act, but it is still necessary to obtain either the consent of the owner or occupier or a search warrant. It seems that AFMA not only published unauthorised commands to receivers to complete and submit SEF2 forms, but also instigated unauthorised inspections of receivers' copies of SEF2 forms by officers of the Tasmania Police. It was AFMA's officers, rather than its board, who were responsible for the unauthorised inspections. The board adopted a policy paper at its February 1993 meeting which included a requirement that officers either obtain permission or a search warrant before entering premises. There is no evidence to suggest that the board was aware that this aspect of its policy was being defied.

70 There is comparatively little evidence of anyone associated with AFMA knowing or thinking, in 1993, that the obligations upon permit holders to submit SEF1 and SEF2 forms were invalid. It seems that some doubts were expressed at a meeting on 13 September 1993 concerning a prosecution that was then pending in Hobart. The meeting was held in Canberra. It was attended by a Tasmanian barrister who had been briefed to prosecute, his instructing solicitor, Mr Anderson, and officers of AFMA's Legal Section. A question was raised as to whether a regulation concerning the Chairperson of AFMA was ultra vires. As I have said, reg32, which purported to delegate the power to make determinations prescribing the forms of log-book to the Chairperson of AFMA, was invalid because it infringed the rule against sub-delegation. I infer that reg32 was the regulation discussed. However the question as to the validity of the regulation was left open at the meeting. It seems that another question was raised as to whether there had been a need for fresh log-book determinations and notices after the Fisheries Management Regulations were amended on 24 December 1992. As I have said, such fresh determinations and notices were needed, but this need was not attended to. This question was also left open at the meeting. A third question that arose was whether the power to specify permit conditions conferred by s32(6)(a)(i) enabled the grantor of a permit to impose a condition requiring recording and reporting in relation to fish caught pursuant to the permit, given that s42 expressly provided for such requirements to be imposed by way of regulations. This question was not resolved at the meeting either. There is evidence to suggest that Mr Palmer of AFMA's Legal Section may have perceived a possible need for fresh log-book determinations and notices prior to the meeting - perhaps months prior to the meeting - but there is nothing to suggest that the validity of permit holders' recording and reporting requirements for 1993 had previously been doubted on any other basis.

71 As far as I am aware, no other defects concerning the obligations of permit holders to complete and submit SEF1 and SEF2 forms in 1993 were perceived during that year by anyone associated with AFMA. A plea bargain was negotiated in relation to the Hobart prosecution, with pleas of guilty being entered to selected charges. This was done without the problems identified at the Canberra meeting having been fully researched. The solicitor instructed in relation to the prosecution intended to seek advice about these problems in 1994, but did not persist because of the pressure of other work.

72 In short, AFMA officers did not realise during 1993 that permit holders were under no obligation to complete or lodge SEF1 and SEF2 forms, and had little insight into the possibility that no such obligations existed, but did nothing to investigate the possible problems that were perceived in relation to the recording and reporting regime for 1993. Had such matters been properly investigated, AFMA would have realised that permit holders were under no legal obligation to submit SEF1 or SEF2 forms in 1993.

73 The outcome of the Hobart prosecution is somewhat disturbing. Although AFMA, the AFP, prosecuting counsel, and his instructing solicitor all had cause to doubt whether the charges were sustainable, no conclusion was reached as to whether any of the charges were unsustainable, but instead pleas of guilty were entered to a small but varied selection of charges. In my view the question whether any of the charges was unsustainable should have been fully investigated in order to ensure that pleas of guilty were not accepted to any charges that were unsustainable. As it happens, pleas of guilty were entered to two charges of contravening a condition of a fishing permit by failing to record fishing activity in SEF1 forms, contrary to the 1991 Act, s95(1)(f). For various reasons, some of which were associated with the questions of law raised at the Canberra meeting, those charges were unsustainable. Further, pleas of guilty were entered to two charges alleging contraventions of the 1952 Act, s14(2)(ba). Those charges were also unsustainable since s14 had been repealed and its operation had not been preserved by the FLCP Act, s6. However those matters had not been considered at the Canberra meeting.

74 The pleas of guilty were entered on 13 December 1993. Mr Venslovas decided a few days beforehand to delay the introduction of fresh log-books until the case had been dealt with. I infer that he did so in order to reduce the risk of the defendants or their legal representatives becoming aware of arguable defences to any of the charges to which pleas of guilty were proposed.

The December 1993 and June 1994 search warrants

75 In December 1993 officers of the AFP and the Tasmania Police sought and obtained a series of search warrants in respect of various premises, including premises occupied by Trident Seafoods Pty Ltd at Derwent Park and in Hobart's Marine Board Building, premises occupied by Victrawl Pty Ltd at Hobart's Macquarie Wharf, and premises occupied or used by Victrawl Pty Ltd and Rigil Kent Fisheries Pty Ltd at Port Lincoln in South Australia. In respect of each of those addresses, two warrants were issued - one pursuant to the 1991 Act, and one purportedly pursuant to the 1952 Act. All the 1952 Act warrants were invalidly issued, with the result that all seizures pursuant to them were illegal: R v Turner (No 4) (supra) at par63. As the 1991 management plan was void, the quota conditions in the relevant licences were void. As those condition were not severable, the relevant licences were wholly void, and the FLCP Act, s6, did not operate so as to preserve the operation of the repealed provisions of the 1952 Act, including s10(4) and (4A) which related to the issuing of search warrants, and s14(2)(ba) which made the provision of false information an offence.

76 In June 1994 officers of the AFP and the Tasmania Police sought and obtained a second series of search warrants. Again, in respect of each place searched, two warrants were issued - one pursuant to the 1991 Act, and one purportedly pursuant to the 1952 Act. Those purportedly issued pursuant to the 1952 Act were invalid, for the same reasons as those invalidly issued in December 1993. The premises searched pursuant to the second series of warrants included premises occupied by "Groucho's Fish Unloaders" and a Mr MacKenzie at Lachlan, premises occupied by "Smiffy's Fish Flingers" in Hobart, and, once again, the premises occupied by Trident Seafoods Pty Ltd at Derwent Park and in Hobart's Marine Board Building and the premises occupied by Victrawl Pty Ltd at Hobart's Macquarie Wharf.

77 Defence counsel have asked me to hold that the 1991 Act warrants and the New Zealand warrants were all invalid as a result of incorrect statements in the affidavits used to obtain them, and the non-disclosure of certain matters in those affidavits. Crown counsel have submitted that, as a matter of law, the warrants in question cannot be challenged on any such basis in these proceedings; and, alternatively, that the warrants were all valid. Defence counsel submitted that the validity of the warrants was able to be challenged in these proceedings on the basis relied upon.

78 Under both the 1952 Act and the 1991 Act, search warrants were required to be issued to individual officers. Because simultaneous searches of various premises were planned in both December 1993 and June 1994, a number of different police officers applied for warrants. On each occasion, each warrant holder applied for and obtained two warrants in respect of each place to be searched - one under the 1952 Act and one under the 1991 Act. In December 1993, each warrant holder swore two affidavits in respect of each place to be searched - one under each Act. Not all of those affidavits have been tendered on the voir dire, but I am satisfied that all the 1952 Act affidavits were in a similar form, and that all the 1991 Act affidavits were in a similar form.

79 In relation to the affidavits used to obtain warrants pursuant to the 1991 Act in December 1993, the following matters were relied upon by counsel for the accused:

(a) Each affidavit asserted that permit holders or their representatives were obliged to complete and submit SEF1, SEF2 and SEF3 forms as a result of permit conditions. However it was suspected that s32(6)(a)(i) did not empower AFMA or its delegates to impose recording or reporting conditions. If so, such conditions were invalid. The possible invalidity of such conditions had been recognised as early as September 1993. It was submitted that no such assertions should therefore have been made in any of the December 1993 affidavits.

(b) Each affidavit asserted that SEF1 forms were required to be completed by the masters of fishing vessels whereas s42 enabled recording and reporting requirements to be imposed only on permit holders, as distinct from masters. The amendment to the Fisheries Management Regulations on 24 December 1992 establishes that the immunity of masters from recording and reporting requirements must have been recognised by AFMA officers prior to that date.

(c) Each affidavit asserted that receivers were obliged to complete and submit SEF2 forms in 1993, whereas they were under no such obligation, and AFMA knew that.

(d) Each affidavit asserted that permit holders or their representatives were obliged to complete SEF3 forms, whereas the determination notified in the Gazette was invalid or ineffective.

(e) Each affidavit relied on data from SEF2 forms. It was submitted that, in the circumstances, all SEF2 forms had been illegally obtained.

(f) Paragraph 38 of Const Chilton's affidavit reveals that information obtained by Tasmania Police officers during their irregular routine inspections of receivers' premises was relied upon.

(g) It was not revealed in any of the affidavits that the SEF2 forms used in 1992 had all contained false assertions that permit holders and receivers could be fined if they did not complete such forms and submit them promptly, as well as false assertions that SEF permits could be suspended if permit holders did not lodge SEF2 forms, accurately completed, within 24 hours after unloading. Nor was it disclosed that receivers had routinely completed and submitted SEF2 forms believing that they had no choice but to do so.

(h) No mention was made in any of the affidavits of the three questions of law raised at the meeting in Canberra on 13 September 1993 concerning the obligations of permit holders to complete and submit SEF2 forms, namely the sub-delegation problem affecting reg32, the need for fresh log-book determinations and notices after the amendment of the regulations on 24 December 1992, and the scope of s32(6)(a)(i).

80 Further, it was submitted by defence counsel that there was some degree of impropriety involved in the swearing of the December 1993 affidavits by police officers other than Federal Agent McKay. He was the author of the affidavits, drawing on material from a number of sources. The other deponents were Det Sgt Allen of the AFP and Consts Chilton and Dix of the Tasmania Police. It seems that they read, accepted, adopted and swore affidavits prepared by Mr McKay. Because of the complexity of the investigation, the desirability of simultaneous searches at a number of places, and the practice of each applicant swearing an affidavit of his own, I think it was inevitable that deponents were swearing to matters of which they had little or no personal knowledge. In the circumstances, I do not think that was inherently improper. I am satisfied that Mr McKay was honest in all that he wrote, and did not deliberately omit from the affidavits any information that might have been relevant to the decision-making of the magistrates who issued the warrants. However, in the light of the contents of the memorandum to Sgt Allen of the Tasmania Police of 27 July 1993 that I have referred to, it seems possible that Const Chilton and/or Const Dix knew that receivers were not obliged to submit SEF2 forms in 1993, swore affidavits which created the contrary impression, obtained search warrants in reliance upon them, and executed those warrants with the assistance of other officers. I do not think the evidence suggests anything stronger than a mere possibility that Const Chilton and/or Const Dix were in that situation.

81 So far as the affidavits sworn in December 1993 for the purposes of obtaining warrants under the 1952 Act are concerned, I make the following observations:

(a) The affidavits disclosed that, as a result of the Full Court's decision in Austral Fisheries, par11 of the 1991 management plan was invalid. However it was stated that that decision "did not invalidate the SEF plan as a whole, which operated throughout 1992". As the Full Court later held in Coleman v Gray, the plan was wholly invalid. That possibility had occurred to Mr Tracey QC and Ms Singh, who had advised appropriate AFMA officers of it. The possibility of the plan being wholly void was not mentioned in the affidavits. The deponents cannot be criticised about these matters. However AFMA should have at least alerted the AFP of its lawyers' suspicions that the plan was wholly void, and should preferably have obtained good legal advice, which should have revealed that the plan was wholly void.

(b) The affidavits asserted that recording and reporting requirements were imposed by the 1991 management plan, when the regime by which they were purportedly imposed involved other instruments and not the plan.

(c) The affidavits did not reveal that, following the decision of O'Loughlin J in Austral Fisheries, AFMA had issued a press release warning fishermen not to gamble on the outcome of the appeal from that decision. The possibility that some individuals had thereafter submitted SEF2 forms only because of that warning was not mentioned.

(d) Substantial information from the surveillance operation that commenced on 29 July 1992 was relied upon. It was not disclosed that O'Loughlin J had handed down his reasons for judgment the previous day. The affidavits mentioned only that he had made orders on 2 September 1992, and could well have created a false impression that the surveillance operation was complete before his Honour gave judgment.

(e) The affidavits relied on information from SEF1 and SEF2 forms submitted in 1993, when there was no legal obligation on anyone to submit them.

82 When the second series of warrants was obtained in June 1994, instead of a separate affidavit being sworn in relation to each warrant that was sought, Mr McKay swore a single affidavit relating to the applications for each warrant under each of the two Acts. Apparently this was done at the suggestion of the magistrate who was asked to issue the warrants. Federal Agents Russell and McShane applied for some of the warrants, relying on Mr McKay's affidavit. He also relied upon it in applying for some of the warrants. There is nothing in the 1991 Act, s85(1), to suggest that this was in any way improper. That subsection requires only that a magistrate be satisfied of certain matters "by information on oath", and does not require that the information be deposed to by the applicant. Under the 1952 Act, s10(4), the applicant had to have reasonable grounds to believe certain things, but there was no requirement for the applicant to state anything as to his or her belief on oath or affirmation, nor for the issuing justice of the peace to be satisfied that the applicant had reasonable grounds to believe the required things. An applicant who had reasonable grounds to believe the required things could properly rely upon an affidavit sworn or affirmed by someone else for the purpose of satisfying the justice of the matters referred to in s10(4A). I therefore see no impropriety in Mr McKay having been the only deponent in June 1994. On the contrary, I think the magistrate's suggestion was a very sensible one.

83 Mr McKay's affidavit of June 1994 contained the same false statements, and omitted the same information, that I have listed in relation to the December 1993 affidavits that were sworn for the purposes of the 1991 Act. Further, it made no reference to the then recent judgment of Einfeld J in Gray v Coleman (unreported, 31 May 1994, Butterworths Unreported Cases BC 9405906). Mr McKay did not mention that case in his affidavit because no-one had told him anything about it. The applicants in that case were being prosecuted under the 1952 Act in relation to the contravention of licence conditions that imposed quota restrictions on gemfish pursuant to the 1991 management plan. Einfeld J held (inter alia) that, as a result of the invalidity of par11 of that plan, the relevant licences were void ab initio and the prosecutions were not maintainable. The respondents in the proceedings were an AFP officer and the Commonwealth DPP. Although AFMA was not a party to the litigation, it should, in my view, have monitored the litigation closely, and kept AFP officers involved in investigations concerning the "South East Fishery" informed as to developments in the litigation and their possible consequences. It should have ensured that any officer in the position of Mr McKay was informed promptly after judgment was given. It should have ensured that thorough and reliable advice as to the implications of the judgment was obtained very promptly after it was handed down. Instead, Mr McKay was not informed of the judgment until about three weeks after it was handed down, during which time the June 1994 warrants had been obtained and executed. One consequence of the 1992 licences having been void ab initio was, as I have explained, that there was no power to issue warrants under the 1952 Act in respect of events occurring after 3 February 1992. Had AFMA been appropriately alert and sought appropriate legal advice promptly after the judgment of 31 May 1994, the 1952 Act warrants of June 1994 would not have been sought, obtained or executed. It seems that, by contrast, Sgt Allen of the Tasmania Police had been alert to the proceedings in New South Wales. On 6 April 1994 he commented to the solicitor who was advising Mr McKay that he was not hopeful about the 1992 gemfish charges in New South Wales. Plainly, AFMA's officers could have monitored this litigation much more closely than they did.

84 Further, Mr McKay's affidavit contained the following errors:

(a) It asserted that the 1991 management plan required SEF1 and SEF2 forms to be submitted to AFMA, whereas the plan was not the source of any purported requirement as to such forms.

(b) It did not explain that, following the decision of O'Loughlin J in Austral Fisheries, AFMA had warned fishermen not to gamble on the outcome of the Full Court appeal, and had not withdrawn the SEF2 forms that contained baseless warnings of fines and quota suspensions for those who did not complete them and promptly submit them.

85 It was submitted that, in a number of respects, errors in the December 1993 and June 1994 affidavits, and omissions from them, were the result of Mr Anderson and/or other AFMA officers, and/or Tasmania Police officers, deliberately withholding information from Mr McKay. The Crown submitted that no such deliberate withholding had been proved. I will return to that issue.

86 Two further search warrants were issued in New Zealand on 20 April 1998 pursuant to the NZ Act, s44(1). These were issued at the instigation of Federal Agent Driessen of the AFP. The premises searched pursuant to those warrants were the home of the accused Coulston and premises of an entity named or referred to as "Tamatea Management Services."

87 When the New Zealand warrants were sought in 1998, Ms Driessen had replaced Mr McKay as the officer in charge of the investigation. On 20 March 1998, in the course of the investigation, she obtained a warrant under the 1991 Act for the search of an accountant's premises in Launceston. On this voir dire, the obtaining of that warrant is significant only because a copy of the affidavit sworn by her on 20 March 1998 was used in connection with the obtaining of the New Zealand warrants. Pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth), an officer of the Commonwealth Attorney-General's Department sent a request for assistance to the competent authority of New Zealand. A copy of Ms Driessen's affidavit of 20 March 1998 was annexed to that request. The New Zealand warrants were issued by a District Court judge on the basis of an application in writing made on oath by a Det Sen Sgt Waata Shepherd. His application is not an exhibit on the voir dire. In the absence of any evidence to the contrary, I infer that Mr Shepherd's application simply passed on to the magistrate the information contained in the Australian request for assistance and Ms Driessen's affidavit of 20 March 1998.

88 It was submitted by defence counsel that the New Zealand warrants were invalid as a result of the information so provided to the issuing judge being misleading and/or incomplete in the following respects:

(a) It was not revealed in the request or Ms Driessen's affidavit that the 1952 Act was believed to have remained in force until the end of 1992. (As far as I am aware, no-one in any position of authority believed that the relevant provisions of the 1952 Act ceased to apply on 3 February 1992 until after my decision in R v Turner (No 4) (supra) on 4 May 2001.) It was submitted that, although the belief that the 1952 Act continued in force until the end of 1992 was incorrect, that belief should have been revealed to the issuing judge through the New Zealand authorities.

(b) The relevant material contained no mention of the 1991 management plan, the management arrangements for 1992 that were made in connection with that plan, or any of the Federal Court cases concerning that plan.

(c) The relevant material contained a false assertion that receivers were required to submit SEF2 forms in 1993.

(d) The relevant material contained an assertion that orange roughy was subject to quota restrictions in 1992 under the 1991 Act, whereas the only quota restrictions for that year were purportedly imposed under the 1952 Act, and were invalid.

The collateral challenge to the search warrants

89 In Murphy v R [1989] HCA 28; (1989) 167 CLR 94, Mason CJ and Toohey J, with whom Brennan, Deane and Dawson JJ agreed, held that the validity of a warrant issued under the Listening Devices Act 1984, (NSW) could not be challenged during a criminal trial on the ground that the materials placed before the issuing judge were insufficient. Their Honours based their reasoning on the proposition that the issuing of the warrant was a judicial act of a superior court, but it was subsequently held in Love v Attorney-General (NSW) (1990) 169 CLR 307 that a warrant is not a judicial order but an instrument of an administrative character, even when issued by a judge as persona designata. Accordingly, the correctness of Murphy in relation to the permissibility of collateral challenges to warrants became questionable. In Carroll v Attorney-General (NSW) (1993) 78 A Crim R 162 at 179, Kirby ACJ (as he then was), after reviewing the authorities, said he saw no reason why the lawfulness of the grant of a warrant should be beyond judicial review. At 178 he had referred to the possibility of review upon the ground that a warrant had been obtained by a trick or a fraud upon the issuing judge. However that case concerned an application for judicial review, rather than a collateral attack on a warrant, and his Honour's remarks were obiter. In Coco v R [1994] HCA 15; (1994) 179 CLR 427, the High Court accepted that a trial judge had jurisdiction to determine whether the issue of an instrument in the nature of a warrant was void by reason of jurisdictional errors that lay behind its issue. However the error of law appeared on the face of the instrument - an authority approving the installation of a listening device under Queensland legislation - and the Crown had accepted that the appellant was not precluded from attacking the validity of the instrument.

90 In Ousley v R (1997) 192 CLR 69, which concerned a ruling by a trial judge in the County Court of Victoria to the effect that he had no power to rule whether warrants authorising the use of listening devices had been properly issued by Supreme Court judges, a number of different views were expressed. At 80, Toohey J said the following:

"If the decision to issue a warrant was an administrative act, concerns based on the inappropriateness of collateral review lose much of their significance. ...

It follows that in respect of this part of the appellant's challenge there is no bar to collateral review by a trial judge of the validity of a warrant on its face. However, it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements. The first of these propositions must be read subject to what follows later in these reasons as to whether the Act requires that a warrant disclose jurisdiction on its face."

91 At 87, Gaudron J said that the validity of a warrant may be challenged in collateral proceedings in any court, but continued:

"It is to be remembered, however, that inquiry as to the validity of a warrant is a limited inquiry. Validity depends upon the warrant having been regularly issued, not on the sufficiency of the material supporting the application for its issue."

In a footnote at that point, her Honour referred, with approval, to the judgment of Mason CJ and Toohey J in Murphy.

92 At 102, McHugh J said that both principle and authority supported the conclusion that a warrant under the Act in question was open to collateral challenge in a trial in the County Court. Gummow J, at 124 - 127, took the view that it had been open to the appellant to challenge the validity of the warrant in the County Court proceedings, subject to the sufficiency of the grounds for granting the warrant being beyond challenge in the light of Murphy. Kirby J left open the question of the extent to which a trial judge may permit a collateral attack on the validity of a warrant in the course of a trial, but said at 147 that the arguments against denying the trial judge such jurisdiction seemed stronger to him than they previously had. The majority (Toohey, Gaudron, McHugh and Gummow JJ) held that the evidence obtained under the authority of the warrants had not been improperly admitted.

93 In Question of Law Reserved on Acquittal (No 5 of 1999) [2000] SASC 51; (2000) 76 SASR 356, the South Australian Court of Criminal Appeal held that a judge had been correct in rejecting a challenge to a warrant during a criminal trial, since the challenge was founded upon the alleged insufficiency of the material placed before the issuing officer. Mullighan J (at 366) and Williams J (at 395) both left open the question whether the validity of a warrant could be attacked on the basis that no reasonable person could have issued it on the basis of the materials relied upon by the issuing officer, referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

94 However none of the authorities I have referred to was concerned with a challenge to the validity of a warrant on the ground of fraud or misrepresentation, as distinct from the insufficiency of materials. In Lego Australia Pty Ltd v Paraggio (1994) 53 FCR 542, the Full Court of the Federal Court of Australia rejected the idea that there is a general duty of disclosure by a person applying for the grant of a search warrant, but held that, in an exceptional case, a decision to grant a search warrant could be set aside on the basis of fraud or misrepresentation. In Flanagan v Commissioner of the Australian Federal Police (1995) 60 FCR 149, the applicants applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for the setting aside of warrants for the tapping of telephone services. Criminal proceedings were pending. The Full Court of the Federal Court of Australia took the view that if non-disclosure by the warrant applicants amounted to fraud of such a nature as to invalidate the warrants, that could be taken into account by the criminal trial judge in the exercise of a Bunning v Cross discretion, and therefore declined to consider exercising the discretion to grant judicial review. That case was cited with approval in Ousley by McHugh J at 101 and by Kirby J at 146.

95 In my view there is no scope for a finding that any of the 1991 Act or New Zealand warrants were invalid because of Wednesbury unreasonableness. The affidavits used for the purposes of the 1991 Act warrants contained sufficient material for it to be open to the issuing magistrates to be satisfied that there were reasonable grounds for suspecting that there were on the premises in question documents that might afford evidence as to the commission of offences against the 1991 Act, s107, and the Crimes Act, s86(1)(a). The material sent to New Zealand was sufficient for it to have been open to a judge to be satisfied that there were reasonable grounds for believing that there were at Mr Coulston's home documents that there were reasonable grounds to believe would be evidence of the commission of the crime of conspiracy, contrary to s86(1)(a), to commit an offence contrary to s107. I have no evidence as to what material, if any, might have been provided to the New Zealand judge in respect of the premises of "Tamatea Management Services".

96 I therefore turn to consider the proposition that the search warrants obtained under the 1991 Act and in New Zealand were invalid as a result of fraud and/or misrepresentation. Whilst Lego and Flanagan establish that fraud or misrepresentation can vitiate a warrant, there is little guidance to be gained from the case law as to the circumstances in which a warrant will be so vitiated. It seems clear that deception achieved by telling a half truth will amount to misrepresentation for the purposes of this doctrine: R v Kylsant [1932] 1 KB 442; Lego at 555. In Flanagan at 214 - 216, the court reviewed two House of Lords cases in which the view was expressed that silence as to a material fact would vitiate a decision granting permission to enter the United Kingdom: Zamir v Secretary of State for Home Department [1980] UKHL 14; [1980] AC 930; Khera v Secretary of State for Home Department [1984] AC 74. I think it must follow from those cases that non-disclosure of a fact would not invalidate a search warrant if the knowledge of that fact could not have made any difference to the decision of the issuing officer. Beyond that, I have not found any guidance in the case law as to how significant an undisclosed fact needs to be in order for the invalidity of a warrant to result. What must be borne in mind is that a trial judge determining the validity of a warrant does not undertake a rehearing of the warrant application so as to substitute for the decision of the issuing officer his or her own decision as to whether the issue of a warrant would have been the preferable course. A trial judge determines whether the warrant was a nullity at common law as the result of some vitiating factor.

97 In this case, I am satisfied that the author of the 1991 Act affidavits, Mr McKay, who also swore some of them, acted honestly and did not attempt in any way to deceive the issuing magistrates. The defence contend that he was manipulated by others who wished not to reveal various improprieties on the part of AFMA, eg, the demanding of returns from receivers in 1993. The reason that the common law treats administrative decisions as vitiated when they have been obtained by fraud is that no court will allow a person to keep an advantage which he has obtained by fraud. See Lazarus Estates Ltd v Beasley [1956] 1 QB 702 per Denning LJ at 712. In the context of a challenge to the validity of a search warrant, I think it must follow that this rule of law applies not only when the applicant for a search warrant has acted fraudulently, but also when a fraud has been perpetrated by someone else through an innocent and unsuspecting applicant.

98 However I do not think I need to decide whether, as defence counsel submitted, there was deliberate deception on the part of officers of AFMA and/or the Tasmania Police which resulted in misstatements in and omissions from the 1991 Act affidavits. By virtue of the 1991 Act, s85(1), the issuing magistrates were empowered to issue the relevant warrants if they were satisfied by information on oath that there were reasonable grounds for suspecting that there was on the relevant premises anything that might afford evidence as to the commission of an offence against s107 or the Crimes Act, s86(1)(a), and that the issue of the warrant was reasonably required for the purpose of ascertaining whether a person had contravened those provisions. The accurate information in the affidavits was in my view sufficient to persuade the issuing magistrates of those matters. At best, full and complete disclosure of the matters to which the errors and omissions relate might have caused the issuing magistrates to think that some or all of the SEF1, SEF2 and SEF3 forms relied upon by AFMA were obtained improperly, illegally, or unfairly, and that the discretionary exclusion of evidence at a trial was a significant possibility.

99 Under the 1991 Act, s85(1), a magistrate has no power to issue a warrant unless he or she is satisfied (inter alia) "that the issue of the warrant is reasonably required for the purpose of ascertaining whether a person has contravened or is contravening a provision of this Act or the regulations". Thus, an issuing magistrate is required to make an assessment as to the reasonableness or otherwise of issuing a warrant for the purpose referred to. If the magistrate is satisfied of the matters referred to in s85(1), then he or she "may issue a warrant". The use of the word "may" must result in the magistrate having a discretion. The section is silent as to the factors that should or may be taken into account in deciding whether to exercise that discretion. The factors that may be taken into account are therefore unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the magistrate may legitimately have regard, and the magistrate will not be bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the statute: Price v Elder [2000] FCA 133; (2000) 97 FCR 218 at 221. Given that a magistrate has no power to issue a s85 warrant unless he or she is satisfied that its issue is reasonably required for the purpose referred to in the section, there seems to be little, if any, scope for the refusal of a warrant in the exercise of the discretion that exists as a result of the word "may" having been used. As a result, I think the question that arises in this case is whether full and complete disclosure of the matters I have referred to might have caused either of the issuing magistrates not to have been satisfied that the issue of a warrant was reasonably required for the relevant purpose.

100 A magistrate hearing committal proceedings ordinarily should not exclude evidence in the exercise of the illegality discretion or the unfairness discretion since any such exclusion is a matter for the trial judge: R v Grassby (1988) 15 NSWLR 109 at 119. I think it must follow that, at least where discretionary exclusion is, as in this case, far from inevitable, considerations of illegality and unfairness should be treated as matters for the trial judge and no-one else. Thus it would not be a proper exercise of the discretion that s85(1) confers for a magistrate to decline to issue a search warrant when evidence appears to have been illegally or improperly obtained, or obtained in such circumstances that its admission could result in a trial not being fair. On that basis, I do not think that it would have been reasonably open to either of the issuing magistrates to have declined to issue any of the 1991 Act warrants, and that any deception on the part of anyone providing information to Mr McKay was therefore immaterial. If I am wrong about that, I still think the evidence obtained pursuant to the 1991 Act warrants should be admitted, for reasons that I will deal with in due course.

101 In challenging the validity of the New Zealand warrants, defence counsel were on even weaker ground. It is true that Ms Driessen did not reveal the belief that the 1952 Act continued in force until the end of 1992. The result is that the issuing New Zealand judge was no doubt left with an impression that the 1991 Act had been in force at all material times. That was correct. Even if the 1952 Act had continued in force until the end of 1992, knowingly presenting to AFMA or any person performing duties under the 1991 Act an SEF2 form that was false or misleading as to an orange roughy catch would still have amounted to an offence contrary to the 1991 Act, s107. A conspiracy whereby it was agreed to present a series of such forms to AFMA containing such false or misleading information would have constituted a crime contrary to the Crimes Act, s86(1)(a). The New Zealand warrants were issued on that basis.

102 Disclosure of facts leading only to the conclusion that there was scope for the discretionary exclusion at trial of SEF1, SEF2 and SEF3 forms would not have been significant, for the reasons that I have given in relation to the 1991 Act warrants. I have no reason to think that Ms Driessen acted dishonestly or improperly in any way in seeking the New Zealand warrants. I am reasonably satisfied of their validity. If I am wrong about that, I would still admit the evidence obtained pursuant to those warrants, for reasons that I will state later.

103 It has been said that, in a case where both the unfairness discretion and the illegality (or public policy) discretion are relied upon, it will commonly be convenient for the Court to consider the unfairness discretion first: Pollard v R [1992] HCA 69; (1992) 176 CLR 177 per Deane J at 204 - 205; Foster v R (1993) 67 ALJR 550 at 554; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 180, 191. However Deane J said in Pollard at 205 that "... in a case involving deliberate or reckless disregard of a law expressly directed to regulating police conduct in relation to the questioning of a suspect, it may be convenient to go directly to the question of exclusion on the grounds of police policy." In this case I consider that the strongest argument relied upon by defence counsel was that certain forms obtained by AFMA ought to be excluded in the exercise of the public policy discretion, and I will therefore take the less usual course of addressing the public policy discretion first.

104 As Mason CJ, Deane, Dawson, Toohey and Gaudron JJ observed in Foster (supra) at 554, "when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on 'large matters of public policy' (Bunning v Cross (1978) 141 CLR, per Stephen and Aickin JJ, at 77) and unfairness to the particular accused will depend upon the circumstances of the particular case."

105 It is common ground that the documents seized by police officers in reliance upon the search warrants issued in purported pursuance of the 1952 Act were illegally obtained for the purpose of the public policy discretion. However the Crown contends that the SEF1 and SEF2 forms that the Crown intends to tender, or contemplates tendering, at the trial were not illegally or improperly obtained, so that there is no scope for them to be excluded in the exercise of that discretion. Counsel for the Crown have submitted that this was because the making of allegedly false statements in those forms did not result from any improper or illegal conduct on the part of AFMA or its officers, as distinct from a decision or decisions, not induced by AFMA or its officers, to make allegedly false statements. Further, it was argued that the Bunning v Cross discretion applies only in relation to the investigation of offences known or suspected to have been committed. Reliance was placed on the words of Barwick CJ (with whom McTiernan, Windeyer, Owen and Walsh JJ agreed) in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 335, where his Honour said the following:

"Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

It was argued that the acts of AFMA and its officers in relation to the demanding and obtaining of SEF1 and SEF2 forms were not acts done for the purpose of obtaining convictions.

106 Most of the leading cases concerning the public policy discretion involve police investigations of known or suspected past offences. That is hardly surprising, since nearly all criminal trials result from such investigations with little or no involvement from public authorities other than the police. Ireland concerned a murder. Bunning v Cross concerned the suspected commission by the appellant of an offence of driving a motor vehicle while under the influence of alcohol. Cleland v R [1982] HCA 67; (1982) 151 CLR 1 concerned shopbreaking, larceny and armed robbery. Pollard concerned a series of sexual crimes including rape. However none of these cases was concerned with the question whether the public policy discretion could be applied to unlawful investigative conduct not directed towards one or more specific offences known or suspected to have been committed.

107 This case concerns a recording and reporting regime administered by AFMA in 1992 and 1993 which has been shown to have had no lawful basis during those years. That recording and reporting regime served a number of purposes. The statistical information provided to AFMA was intended to facilitate the management of the relevant fishery in the future through, inter alia and where applicable, restrictions on the total allowable catch of particular species, and quota restrictions imposed on individual operators. Secondly, the regime served the obvious purpose of deterring over-fishing. Anyone subject to quota restrictions and obliged to record and report their catches, knowing that their records and returns could be checked and compared with eye-witness evidence, should have been deterred from over-fishing. Thirdly, the required returns, if honestly and accurately completed, particularly by receivers, could be used to detect those who had been over-fishing, with the result that they could be dealt with, either through administrative action or by means of prosecution, or both, where appropriate. Under the 1991 Act, the contravention by a permit holder of a permit condition imposing a quota in relation to a particular species could amount to an offence contrary to s95(1)(d). Similar conduct by a person acting on behalf of a permit holder could amount to an offence contrary to s95(1)(f). AFMA could suspend a fishing permit under s38(1)(b)(i) if it had reasonable grounds to believe that there had been a contravention of a condition of the permit. If the permit holder was convicted of any offence against the 1991 Act, AFMA could cancel the permit pursuant to s39(a). Whenever a permit expired and a fresh one was applied for, AFMA no doubt had a discretion to take into account, in deciding whether or not to grant a fresh permit, any information that would have entitled it to suspend or cancel a current permit.

108 We live in an increasingly complex society. Legislative requirements for individuals to subject themselves to interrogation, and even to searches, are becoming more and more common. People entering Australia have long been required to submit customs declarations and, upon demand, to submit to searches of their luggage, and even body searches. Regulators such as the ACCC and the ASIC have been given a range of compulsive powers. Random breath tests are commonplace. Hardly any of the drivers who are required to submit to them are positively suspected of committing any offence. Public servants administering the Social Security Act 1991, and other Acts involving the payment of public moneys to citizens, routinely require the recipients of those moneys to complete forms by which they provide information as to matters affecting their eligibility, or continued eligibility, for the payments they are receiving. Such forms not only enable decisions to be made as to who should be paid and how much they should get, but also facilitate the detection of fraudulent claims. Admittedly the better concealed fraudulent claims are unlikely to be detected by this means, but this is still a purpose that is served by requiring the routine submission of such forms.

109 The question that arises in this case is whether a requirement to provide information to a public authority, imposed partly for investigative purposes, but not in relation to any particular known or suspected offence, is a requirement to which the public policy discretion can apply. In order to decide that question, it is necessary to consider the statements of principle as to the basis of the public policy discretion in the leading High Court cases concerning it.

110 Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 involved an extension to the public policy discretion with the result that evidence of an offence, or of an element of an offence, can be excluded if the offence was procured by unlawful conduct on the part of law enforcement officers. (The facts of this case are significantly different, since no law enforcement officers, from AFMA or any other agency, sought to procure the understatement of orange roughy catches.) In the leading judgment in the case, Mason CJ, Deane and Dawson JJ said the following (omitting footnotes) at 30 - 32:

"At least since Bunning v Cross, it has been 'the settled law in this country' that a trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police. That discretion is distinct from the discretion to exclude evidence of a confessional statement on the grounds that its reception would be unfair to the accused. The discretion extends to the exclusion of both 'real' (or non-confessional) evidence and confessional evidence. As Barwick CJ pointed out in Reg v Ireland, in a judgment with which the other four members of the Court agreed, the rationale of the discretion is that convictions obtained by means of unlawful conduct 'may be obtained at too high a price'. In its exercise, a trial judge must engage in a balancing process to resolve 'the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law'. The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of 'high public policy' relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty.

... the considerations of 'high public policy' which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be 'demeaned by the uncontrolled use of the fruits of illegality in the judicial process'."

111 Brennan J, who was also one of the majority judges, said the following as to the basis of the discretion at 49:

"... the purpose of the discretion to exclude evidence on the ground of unlawfulness is not to ensure a fair trial but to ensure that the conviction of the alleged offender is not bought at too high a price by reason of curial approval of - if not reward for - illegal conduct on the part of the law enforcement agency."

112 The other member of the majority was Toohey J, who said the following at 56:

"What has come to be known as the Bunning v Cross discretion seeks to ensure that those concerned with the enforcement of the law observe the law in the manner in which they secure evidence. If a court considers that there has been a failure to observe the law in that respect, the discretion may be invoked to exclude any evidence so obtained."

113 Gaudron J, who would have stayed the Ridgeway prosecution as an abuse of process rather than bringing it to an end by excluding evidence, said the following at 74:

"The Bunning v Cross discretion involves the balancing of the public interest in ensuring that law enforcement agents observe the law in the course of their investigations with the public interest in the detection and prosecution of crime. The discretion allows that, as a result of that exercise, evidence may be excluded if it is illegally or improperly obtained."

114 McHugh J, who dissented, said the following at 82 - 83:

"A trial judge has a discretion to exclude evidence obtained by unlawful or improper means irrespective of whether the admission of the evidence would be unfair to the accused. The discretion to exclude such evidence is grounded in public policy. The trial judge must weigh two aspects of the public interest. First, the judge must weigh the admission of the evidence against the public interest in convicting those who break the law in question. Second, the judge must weigh the admission of the evidence against the public interest in ensuring that public confidence in the justice system is not undermined by the perception that the courts of law condone or encourage unlawful or improper conduct on the part of those who have the duty to enforce the law. Ultimately, the judge must determine whether the public interest will be advanced or impaired by admitting the evidence."

115 In R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 195, Toohey, Gaudron and Gummow JJ expressed the view that, in cases concerning the admission or rejection of confessional material, the appropriate course was to consider first the question of voluntariness, then exclusion based on considerations of reliability, and finally an overall discretion taking account of all the circumstances of the case. Their Honours did not comment as to whether such an "overall discretion" applies in relation to the discretionary exclusion of non-confessional evidence. The South Australian Court of Criminal Appeal has held in R v Lobban [2000] SASC 48; (2000) 77 SASR 24 that the "overall discretion" is limited to confessional evidence. The basis of the "overall discretion" appears from the judgment of Toohey, Gaudron and Gummow JJ at 194. It is "an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards". Their Honours said at 195 that "An analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions ... support the view that the [overall discretion] approach ... already inheres in the common law".

116 In Swaffield at 178, Brennan CJ said the following:

"... the chief object of the public policy discretion is the constraining of law enforcement authorities so as to prevent their engaging in illegal or improper conduct, although the securing of fairness to an accused is a relevant factor in the exercise of the discretion."

117 At 211 - 212, Kirby J said the following as to the basis of the public policy discretion:

"This Court has also recognised that a judge has a discretion to exclude evidence on the basis of 'high public policy' although such evidence passes every other test. This discretion is distinct from considerations of fairness to the accused. In Ireland, Barwick CJ explained that the process involves a matter of weighing competing public requirements:

'On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.'

It is useful to recall the considerations which have been taken into account in past cases involving the exercise of this policy discretion. In the three leading cases - Ireland, Bunning v Cross and Ridgeway v The Queen, the principal issue was not whether the conduct of the police had been illegal or improper. As such, that issue would not properly arise for trial and determination, being a matter for police discipline, criminal charges or civil remedies. Instead, the issue to be decided in the course of the criminal trial of the accused was whether confessional or 'real' evidence, obtained as a result of, or following, such official illegality or impropriety, should be excluded from that trial notwithstanding its probative value as contributing to bringing a guilty person to justice."

118 I do not see any need for me to decide whether the Swaffield "overall discretion" applies in non-confessional cases, contrary to the decision of the South Australian Court of Criminal Appeal in Lobban. For reasons which appear below, I would reach the same result applying the "overall discretion" as I would exercising the previously recognised public policy discretion. All of the judgments in Swaffield are consistent with the latter discretion being exercisable, and having been properly understood in the past.

119 There are further, significant statements of principle in some of the judgments, but by no means all of them, in Nicholas v R [1998] HCA 9; (1998) 193 CLR 173. At 196 - 197, Brennan CJ said the following:

"It is clear that, in exercising the Ridgeway discretion, the court is balancing two competing public interests: the public interest in bringing to conviction an offender who has committed a crime and the public interest in upholding the law when law enforcement officers, the agents of the Executive Government, have deliberately flouted the law laid down by the Parliament or the common law. If the court were to disregard the illegal conduct of law enforcement officers and to admit evidence of that conduct, albeit the conduct was in flagrant and deliberate breach of the Parliament's statutory command, the unlawful conduct would itself have conferred a 'curial advantage on the law enforcement officers and the reception of evidence of the illegal conduct would 'demean the court as a tribunal whose concern is in upholding the law.

But it is a mistake to see the Ridgeway discretion as a device calculated to protect the reputation of the courts. It simply reflects the court's duty to ensure that it does not exercise its discretionary powers to achieve an objective which flagrant and deliberate breaches of the law are designed to achieve, especially when the breaches are committed by agents of the Executive Government whose duty is to uphold the law. By weighing the competing public interest factors, the court seeks to strike the right balance between them. It is by a proper balancing of the interests served by the general criminal law - the law which governs the conduct of law enforcement officers as well as the general public - against the interests served by the law relating to the admission of evidence of guilt in a criminal prosecution that the integrity of the court's processes are preserved and the repute of the courts as the administrators of criminal justice is protected."

120 At 216, McHugh J emphasised that Ridgeway made it clear that the Bunning v Cross discretion "depends on the necessity to preserve the integrity of the administration of justice and to protect the processes of the courts of justice." After quoting from the judgment of Mason CJ, Deane and Dawson JJ, and that of Gaudron J, he concluded as follows, at 217 - 218:

"... so far as four of the six majority judges were concerned, the discretion exists, inter alia, because it is necessary to protect the processes of the courts of law in administering the criminal justice system. For that reason, it is 'an incident of the judicial powers vested in the courts in relation to criminal matters'."

121 In the light of the statements of principle that I have quoted from Ridgeway, Swaffield and Nicholas, I see no reason why the Bunning v Cross discretion should be exercisable only when there has been impropriety in relation to the investigation of particular offences known or suspected to have been committed. It is not hard to think of examples of convictions obtained at too high a price in other situations. If, for example, a police officer was authorised to require motorists to submit to random breath tests, but lacked the appropriate equipment, and instead compelled them to submit blood or urine samples in public at gunpoint, I expect it would be said that any resulting convictions would be obtained at too high a price, particularly if the officer concerned had no reason to suspect any individual motorist to be guilty of any offence.

122 Similarly, the reasons for the existence of the Bunning v Cross discretion do not suggest that, when a citizen is subjected to unlawful conduct on the part of a law enforcement officer, there should be no scope for the exercise of the discretion if the citizen responds by doing something unlawful that the law enforcement officer had not intended him or her to do. The unlawfulness of the response, and the unintended nature of it, are two factors that should be taken into account in the Crown's favour in deciding whether to exclude or admit the evidence. However the discretion is enlivened in such a situation, and all relevant circumstances have to be given appropriate weight as part of a balancing exercise.

123 What AFMA did in demanding the completion and submission of SEF1, SEF2 and SEF3 forms in 1992 and 1993 was to make illegal commands to fishermen, receivers, and permit holders. The Bunning v Cross discretion applies not only to evidence obtained as a result of the commission of an offence or a tort, but also to evidence obtained as a result of unlawful commands by those in authority. In Ireland, it was held to apply to police photographs taken against the will of the accused. In Bunning v Cross, it was held to apply to the results of a breathalyser test administered in contravention of statutory requirements. It follows that it applies to the unlawful demands by AFMA for the completion and submission of SEF1, SEF2 and SEF3 forms.

124 This view is supported by the judgment of Perry J in Bartlett v R (1990) 55 SASR 292 at 307. That was a Full Court case, but the other judges did not deal with the Bunning v Cross point. The appellant was the recipient of a supporting parent's benefit. She was required by officers of the Department of Social Security to complete and return a number of forms providing details of her financial position. She told lies in them. There was one form that she had not been obliged to complete, but it contained instructions saying "This form MUST BE COMPLETED ...", and "THE MAXIMUM PENALTY FOR A DELIBERATE FALSE DECLARATION IS $2,000 FINE OR 12 MONTHS IMPRISONMENT". At 307, Perry J characterised the form as an unlawful or improper demand for information, and held that the Bunning v Cross discretion was applicable, and that the form should have been excluded in the exercise of the discretion. As to the manner in which the discretion should have been exercised, his Honour said the following:

"In my view, if the matter is to be approached as one involving the exercise of the discretion to exclude evidence illegally or improperly obtained, all of the relevant considerations point to exclusion. It could not be said that the furnishing of the form in the circumstances of the case was a minor or excusable dereliction of the duty upon public authorities to act properly within their powers. Authorities charged with the responsibility of administering the provisions of the Social Security Act should ensure that the forms used are a correct expression of the statutory powers. Furthermore, the scheme of the relevant provisions of the Act makes it plain that evidence properly obtained by the specific means set out in the Act, pursuant to which the provision of information for such purposes as those now in question can be compelled, is inadmissible in proceedings other than those identified in s 165.

It would make nonsense of the provisions against self-incrimination to be found in s 165 if that section could be circumvented by the giving of a notice ostensibly compelling the provision of information other than in accordance with the procedures laid down in s 163 or s 164, unsupported by any other statutory power."

(The relevant statute provided for statements pursuant to the procedures that it laid down generally not to be admissible as evidence against their makers.)

125 Mr Rozenes QC submitted that, although the public policy discretion was enlivened when evidence was illegally obtained, the relevant obtaining of the SEF1 and SEF2 forms in this case was done by AFP officers when they obtained those forms from AFMA. I reject that submission. Having regard to the reasons for the existence of the discretion, I take the view that, when a document passes through the hands of a number of law enforcement officers or law enforcement agencies, and eventually comes into the hands of a prosecutor who proposes to tender it during a criminal trial, the conduct of all law enforcement officers who had anything to do with that document after it left the hands of a member of the public is potentially relevant to the exercise of the public policy discretion. It would be inconsistent with the purposes of the discretion if the situation were otherwise. In an extreme case, corrupt or bloody-minded officers of one agency could take advantage of the innocence or naiveté of public officers more immediately associated with the courts. Perhaps remoteness from the processes of the courts might weigh in favour of the Crown, particularly in relation to the conduct of a public officer whose function is such that he or she could not reasonably be expected to have much understanding of the seriousness of the consequences of his or her impropriety. But at most this would be a factor to be taken into account in a balancing exercise, rather than a factor that precludes the exercise of the discretion.

126 Although AFMA's primary role concerns the management of fisheries, it has an ancillary law enforcement role. As I have explained, one of the functions of the system of records and returns that was so clumsily set up was to encourage fishermen not to exceed quota restrictions. Another was to facilitate the detection and prosecution of quota offenders. AFMA was involved in carrying out surveillance and inspections, with the assistance of appropriate officers of the States. It instituted prosecutions. It obtained assistance and co-operation from the AFP and the DPP in relation to larger and more complex matters. However it is clear that, for the purposes of the public policy discretion, AFMA was a law enforcement agency, and the system of records and returns played a role in its law enforcement activities.

127 The major considerations relevant to the exercise of the public policy discretion have been listed in Bunning v Cross by Stephen and Aickin JJ at 78 - 80 and in Swaffield by Kirby J at 212 - 213. I need not repeat them.

128 The crime charged is a serious one. Under the Crimes Act, s86A, the maximum penalty for conspiring to defraud the Commonwealth or a public authority under the Commonwealth is 20 years' imprisonment. The Crown alleges that the conspiracy charged continued for about two years. As I understand it, it is alleged that the accused conspired to understate orange roughy catches over that period in connection with a scheme for taking quantities of orange roughy far in excess of the quotas allocated to the relevant vessels invalidly in 1992, but validly in 1993. The value of the fish allegedly taken in excess of such quotas appears to have been enormous. The gravamen of the charge is that a known consequence of the alleged unlawful agreement to understate catches was that AFMA officers were likely to be deflected from their public duties in relation to the management of the relevant fishery. One of AFMA's statutory objectives under the 1991 Act, s3(1)(b), was ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development**.** As a result, it had an interest in ensuring that orange roughy stocks remained at a sustainable or reasonable level. Conduct which had the effect of deflecting public officers from the discharge of their duties in relation to that objective could make this a serious example of the crime charged, if the Crown proves its case. The public interest in the punishment of crime is a very significant factor weighing in favour of the Crown.

129 Although the charge before the Court relates to an alleged conspiracy said to have ended on or about 31 December 1993, this charge was not laid until March 1999. One of the five accused was the subject of some "holding charges" laid in 1998, but I do not know why. Counsel have foreshadowed that an application to dismiss the charge or permanently stay proceedings on the indictment is likely to be made on the basis of inordinate and prejudicial delay. It is therefore inappropriate in the present context for me to reach any conclusions as to how excusable or inexcusable the delays affecting this matter were at various stages after 1993. However it must be taken into account in favour of the accused that there is at least a possibility that matters relating to delay will be given significant weight in mitigation of penalty if any of the accused are ever convicted of the alleged crime. If the seriousness of the crime is a factor to be taken into account in favour of the Crown, I think it must follow that matters going to mitigation of penalty should be taken into account in favour of the accused.

130 Another factor to be taken into account in favour of the accused is the fact that an unreasonable allocation of orange roughy quotas by par11 of the 1991 management plan forms the background to the alleged conspiracy. When the conspiracy was allegedly entered into, the management of the relevant fishery had totally failed as the result of a series of legislative and administrative blunders, the most significant of which was the adoption of an extremely unreasonable set of formulae for quota allocations. Whilst different considerations might apply in 1993, when there was a valid quota system whose reasonableness is unchallenged, it must be significant that the crime alleged involves a response to a situation that should not have arisen, and was not of the accuseds' making.

131 It is very important to consider the extent to which the obtaining of SEF1 and SEF2 forms by AFMA in 1992 and 1993 resulted from deliberate conduct on the part of AFMA and its officers, ie, the extent to which the illegal obtaining of those forms resulted from something worse than the series of blunders that I have outlined above. Prior to O'Loughlin J giving judgment in Austral Fisheries on 28 July 1992, I am reasonably satisfied that no-one associated with AFMA doubted the validity of the legislative scheme that had been put in place to require the lodgement of SEF1 and SEF2 forms pursuant to the 1952 Act. At worst, AFMA officers could be criticised for not having accepted that the quota system under par11 of the 1991 management plan was extremely unreasonable once its defects had been complained of, and for having been unduly optimistic as to the likely result of the applications to the Federal Court in Austral Fisheries and La Macchia. After O'Loughlin J gave judgment, AFMA should have treated that judgment as correct, even if it was so aggrieved by it that it wanted the Minister to appeal to the Full Court. As a public authority, AFMA should always conduct itself in accordance with the rule of law. Instead, after taking advice from Mr Tracey QC and Ms Singh, it decided to do precisely what it warned fishermen not to do - to gamble on the outcome of an appeal. AFMA should have realised that, assuming O'Loughlin J to have been correct about the invalidity of par11, which he was, the only way to impose a valid quota system for the "South East Fishery" for 1992, and a valid system for the recording and reporting of catches, was to issue fishing permits to the operators in the fishery pursuant to the 1991 Act, s32, as contemplated by Ms Singh. Instead, AFMA chose to proceed as if O'Loughlin J was wrong, to ignore his decision (apart from appealing to the Full Court), and pretend that the law was as it wanted it to be, rather than as O'Loughlin J, and later Burchett J, had declared it to be. As a result, AFMA demanded and obtained the completion and provision of SEF1 and SEF2 forms after 28 July 1992 when it knew shortly thereafter that, if the findings made in the Federal Court were correct, it followed that no-one was under any legal obligation to complete or submit such forms.

132 In 1993, AFMA demanded the completion and provision of SEF2 forms by receivers, knowing that they were under no legal obligation to submit them. As I said in R v Turner (No 11) [2001] TASSC 102 at par28, this indicates a disturbing disregard for the rule of law by AFMA, at least at management level. The board was made aware at its meeting in late May 1993 that receivers were under no such obligation and ought, in my view, to have scrutinised AFMA's practices to ensure that no improper demands were being made of receivers pending the desired reform of the law. Knowing that its practices were not in accordance with the law, AFMA's officers did nothing to seek the reform of those practices, hoping that the law would one day be changed to accord with them. Those affected by practices that were not in accordance with the law were told nothing, nor were the AFP officers engaged in the enforcement of the quota system. Instead, AFMA officers systematically kept up a pretence that the law was as they wanted it to be.

133 In relation to the obtaining of SEF1 and SEF2 forms from permit holders in 1993, the conduct of AFMA's officers was much less reprehensible. The head of its legal department, Mr Palmer, had come to suspect by 13 September 1993 that there was no valid obligation to submit SEF1 or SEF2 forms because the wording of the notices gazetted on 22 December 1992 was such that fresh determinations and notices would have been necessary after the regulations were amended on 24 December 1992. On 13 September 1992 he was also alerted to the sub-delegation problem concerning reg32, but apparently he neither thought the matter through nor sought advice about it. In the light of those facts, it can fairly be said that AFMA ought to have recognised, at least shortly after 13 September 1993, that there was no valid legislative requirement for the completion or submission of SEF1 or SEF2 forms. However it seems that no-one contemplated that cl 4.6 of the relevant fishing permits was void as a result of Wednesbury unreasonableness. That clause required the completion and submission of SEF1, SEF2 and SEF3 forms. Thus, whilst Mr Palmer and possibly others came to have reason to suspect that the legislative basis for demanding such forms had failed, no-one had any inkling that the concurrent basis for imposing recording and reporting requirements by means of permit conditions pursuant to s32(6)(a)(i) had also failed. Had these matters been fully appreciated, the situation could have been rectified by redesigning the SEF1 and SEF2 forms and imposing reasonable permit conditions requiring the use of the new forms pursuant to s32(8), which empowers AFMA to impose a further condition to which a permit is to be subject.

134 In Bunning v Cross at 71, Stephen and Aickin JJ said that "local circumstances relating to law enforcement" were a matter germane to the proper exercise of the public policy discretion. Of course this case concerns the illegal obtaining of documents by a specialist public authority, rather than the illegal obtaining of evidence by an officer from a local police station. However I think it is appropriate to take into account the extent to which AFMA and its officers were generally prepared to resort to unlawfulness for the purpose of protecting the quota systems and monitoring compliance with them. The matters that should therefore be taken into account in favour of excluding evidence include the careless mismanagement of the legislative and administrative arrangements concerning the fishery; AFMA officers' collusion in the unlawful routine inspections of receivers by Tasmania Police officers; the failure to reveal to AFP officers that receivers were not obliged to complete or submit SEF2 forms in 1993; the misleading of the solicitor from Eden; Mr Peachey's failure to inform AFMA's board that threats of prosecution were printed on the 1993 SEF2 forms that receivers were completing and submitting; the subtle change of wording provided to the AFP for inclusion in warrant informations suggesting that receivers were completing SEF2 forms as a result of some sort of request; the failure to investigate possible deficiencies in regulations and determinations after they came to the attention of AFMA Legal Section; the approval by Mr Anderson of the plea bargain in December 1993; and the decision by Mr Venslovas to delay the publication of new log-books until after pleas were entered in that case. It was submitted that AFMA had also breached the secrecy requirements of the Fisheries Management Regulations, reg36(1), by giving the AFP SEF1 and SEF2 forms and data therefrom, but I reject that submission on the basis that the giving of such documents and information to the AFP was, within the meaning of reg36(2)(a), done in accordance with the Act. It was something done in pursuit of AFMA's statutory objectives.

135 In Pollard at 203 - 204, Deane J said the following:

"The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an 'isolated and merely accidental non-compliance' (Bunning v Cross (1978) 141 CLR, at p 78) with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest 'the real evil' at which the discretion to exclude unlawfully obtained evidence is directed, namely, 'deliberate or reckless disregard of the law by those whose duty it is to enforce it' (Bunning v Cross (1978) 141 CLR). In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence."

136 Pollard concerned a confessional statement. The statutory requirements prescribed by the Service and Execution of Process Act 1992 (Cth) had not been complied with before police questioning began. But although the comments of Deane J were made in a different context, I think it is very significant that SEF1 and SEF2 forms were obtained by AFMA officers for some months in late 1992 from masters and receivers throughout the area of the "South East Fishery" in circumstances evidencing a reckless disregard of the rule of law, and that receivers' SEF2 forms were obtained throughout 1993 in circumstances evidencing a deliberate disregard of the rule of law.

137 Apart from the seriousness of the crime, which I have already referred to, there are a number of factors that weigh in favour of admitting the SEF1 and SEF2 forms. They were obtained for statistical and management purposes, and not just for law enforcement purposes. Whilst they were unlawfully demanded, nothing was done to cause the persons completing them to make false statements, apart from the purported imposition of unreasonable quota restrictions by the 1991 management plan. They were not obtained with a view to obtaining a conviction of any particular individual. The circumstances of the obtaining of the forms does not affect their cogency. It was not contrary to the intention of Parliament that masters and receivers in 1992, and permit holders in 1993, were required to complete and submit the forms. Although the unlawful compulsion to complete and submit the forms breached the right to silence, an unlawful requirement to submit catch statistics is a less serious infringement of the right to silence than an unlawful requirement to answer questions about a crime.

138 I think that admitting into evidence the receivers' forms from 1993, and the SEF1 and SEF2 forms completed after AFMA had had a reasonable opportunity to realise the implications of the judgment of O'Loughlin J in Austral Fisheries, would involve this Court in appearing to give effect to illegality and impropriety in a way that is not compatible with the functions of a court, and which might damage the repute and integrity of the judicial process. However I do not think the same can be said in relation to the forms completed and submitted before the judgment of O'Loughlin J, nor those completed and submitted before AFMA had a reasonable time to respond to that judgment, nor to the forms completed and submitted by or on behalf of permit holders in 1993. The obtaining of those forms did not involve such a degree of recklessness towards, or disregard for, the rule of law.

139 If I were to exclude all the SEF1 and SEF2 forms in the exercise of the public policy discretion, the Crown would have to abandon this prosecution. I do not think such a consequence would be appropriate in all the circumstances, having regard to the seriousness of the crime charged. However, having regard to all the matters I have mentioned, I think the appropriate balance will be struck if I exclude all the receivers' SEF2 forms from 1993, and all the SEF1 and SEF2 forms obtained in 1992 after AFMA had had a reasonable time to respond to the judgment of O'Loughlin J in Austral Fisheries, but not the other SEF1 and SEF2 forms. It is therefore necessary for me to determine a date in 1992 after which the obtaining of SEF1 and SEF2 forms, and the compelling of masters and receivers to keep copies thereof, should not be excused. Having regard to the sequence of events that I have outlined earlier in these reasons, I think 9 September 1992 is the most appropriate date. That was the day when Ms Singh and a number of officers of the DPP went to Canberra to explain the impact of Austral Fisheries to a number of AFMA officers. It is true that the judgment of Burchett J in La Macchia was not given until 11 September 1992, and that it was not until 24 September 1992 that AFMA issued the media release warning fishermen not to gamble on the outcome of the Austral Fisheries appeal, but I have chosen 9 September 1992 as the most appropriate date to allow for the fact that AFMA was, in my view, unreasonably slow in responding to the judgment of 28 July 1992. I have not overlooked the fact that the surveillance relevant to this case was apparently completed - or stopped - prior to 9 September 1992.

Documents seized pursuant to 1952 Act warrants

140 As I have said, the 1952 Act warrants were obtained and issued pursuant to a section that had been repealed, in relation to a contravention of a provision that had been repealed. Obviously these warrants were obtained by mistake. That mistake came about despite AFP officers involved in a similar investigation in Victoria having obtained senior counsel's advice as to the appropriate Act or Acts for warrants to be sought under. Senior counsel failed to realise that, as a result of the quota conditions in the relevant 1992 licences being void, and as a result of those quota conditions not being severable from the rest of the licences, those licences were void; that, as a result, there was no scope for the operation of the FLCP Act, s6, which preserved the repealed provisions of the 1952 Act in relation to licences that remained current; and that, as a result, s14(2)(ba), which created an offence in relation to false statements, and s10, which empowered justices of the peace to issue warrants, did not continue in force in relation to the relevant licences. Perhaps those conclusions did not readily emerge from the documents and instructions provided to senior counsel. No court had held that any relevant licences were wholly void at the time the advice was given, nor when the first group of warrants was issued in December 1993. Einfeld J had held that shortly before the second group of 1952 Act warrants was issued in 1994, but that information had not been passed on because of inappropriate inertia, or lack of alertness, on the part of AFMA and its legal officers.

141 Valid warrants could have been obtained under either the 1991 Act, s85, or the Crimes Act, s10. The warrants that were obtained under the 1991 Act did not authorise the seizing of the same evidence, but were confined in their terms to evidence relating to activities in 1993. Since valid warrants were available under other legislation, it cannot be said that any legislative intention is to be taken into account in favour of the accused.

142 The conduct of the officers who obtained the invalid warrants, and seized documents pursuant to them, had no effect on the cogency of the evidence so obtained. Exclusion of the evidence obtained pursuant to the 1952 Act warrants would probably leave the Crown with a significantly weaker case, but by no means an unwinnable case.

143 The obtaining of warrants under the wrong Act could not have been the result of any impropriety alleged against any AFMA or Tasmania Police officer. The police officers who obtained and executed the 1952 Act warrants acted in good faith. There was no encouragement or toleration of impropriety by those in authority over them. I need not repeat the comments I have made concerning the affidavits used to obtain the 1952 Act warrants. Those matters of course weigh in favour of the accused. In my view the most reprehensible aspect of the obtaining and executing of the 1952 Act warrants was AFMA's failure promptly to notify AFP officers and those advising them of the decision in Gray v Coleman and the consequences of that decision.

144 It must be remembered that the gravamen of the charge is that alleged conspiracy was one likely to result in public officers being deflected from their duties. But during 1992, the year to which the 1952 Act warrants related, AFMA's management of the fishery had practically failed; and AFMA's officers were purporting to discharge public duties pursuant to the provisions of repealed legislation, and not pursuant to the provisions of the legislation that was then current. Apart from receiving catch information that was of use in determining future catch restrictions and quotas, I am inclined to think that AFMA officers were doing little in 1992 by way of discharging any public duties from which the alleged conspiracy might have caused deflection. Mr Abbott QC submitted that it was significant that the officers allegedly likely to be deflected from their duties were the same officers responsible for illegally demanding and obtaining SEF1 and SEF2 forms. However I think it is much more significant that the Australian public would be the victims of any relevant deflection. Orange roughy stocks needed to be conserved for the benefit of the Australian public, and not for the benefit of a few public officers.

145 On 21 June 1994, after reading the judgment of Einfeld J in Gray v Coleman and learning that the gemfish prosecutions in New South Wales had failed, Supt Millar of the AFP phoned the solicitor in the Hobart office of the Australian Government Solicitor who had been advising AFP officers in relation to the search warrants relevant to this case. They discussed whether the result of Gray v Coleman was that all charges under the 1952 Act would be unsustainable and, if so, whether all the documents seized pursuant to the 1952 Act warrants should be returned. The solicitor advised against their return. It was argued that the retention of the seized documents after that conversation involved significantly greater impropriety than the original seizure of them, and that this factor should be taken into account in favour of the accused. I reject that submission. The warrants issued under the 1952 Act concerned supposed offences contrary to s14(2)(ba) thereof. No court had held, as I since have, that the relevant provisions of the 1952 Act ceased to be in force on 3 February 1992. The applicants before Einfeld J had not been charged under s14(2)(ba), but had been charged in relation to such matters as the exceeding of quota restrictions. It did not follow from the judgment of Einfeld J that s14(2)(ba) had ceased to be in force in February 1992, nor that charges against s14(2)(ba) were unsustainable. It must follow that there was no additional impropriety involved in retaining the seized documents after learning of the judgment of Einfeld J.

146 In my view the factors weighing in favour of exclusion are not so serious that the admission of the documents seized pursuant to the invalid warrants would involve this Court in giving or appearing to give effect to illegality or impropriety in a way that would be incompatible with the functions of a court, or which might damage the repute and integrity of the judicial process. As I have decided to exclude a substantial quantity of other evidence in the exercise of the public policy discretion, I see no risk of that impression being created as a result of the documents seized pursuant to the invalid warrants not being excluded. I have therefore decided that they should not be excluded in the exercise of that discretion.

147 Even if the 1991 Act warrants and the New Zealand warrants were invalid, I think it would be inappropriate to exclude any of the documents obtained as a result of their execution. Similarly if, as suggested by Mahoney AP (as he then was) in Carroll v Attorney-General (NSW) (supra) at 183, the public policy discretion enables evidence to be excluded when it has been obtained pursuant to a valid warrant in circumstances involving impropriety, I think it would be inappropriate to exclude any of the documents obtained by the execution of the valid warrants in this case. My reasons for so concluding are as follows. There was no deliberate impropriety on the part of any of the AFP officers involved in obtaining or executing the warrants. Any impropriety on the part of others who provided misleading or incomplete information that was reproduced in the relevant affidavits was of peripheral significance, in that it did not impinge upon the strength of the evidence of the matters as to which the issuing officers needed to be satisfied. The cogency of the evidence obtained was not affected. That evidence is likely to be significant, though not of critical significance. No legislative intention was disregarded. There was no encouragement or toleration of any improper conduct by anyone in higher authority. The exclusion of certain SEF1 and SEF2 forms as referred to above is sufficient for the Court not to appear to give effect to illegality or impropriety or to damage the repute and integrity of the judicial process.

148 The exercise of the unfairness discretion does not depend upon whether law enforcement officers have acted unfairly, but depends upon whether it would be unfair to an accused person for certain evidence to be used against him or her, in the sense that his or her right to a fair trial might be jeopardised: Van der Meer v R [1988] HCA 56; (1988) 62 ALJR 656, per Wilson, Dawson and Toohey JJ at 666, Swaffield (supra) per Brennan CJ at 174, per Toohey, Gaudron JJ at 189, and per Kirby J at 211. The unfairness discretion is not concerned solely with the unreliability of evidence, but can also be invoked on the basis that an accused person might not receive a fair trial if the Crown were permitted to adduce evidence of a confession that might not have been made in the same form or at all but for the improper conduct of law enforcement officers: Van der Meer at 662 (Mason CJ); Duke v R [1989] HCA 1; (1989) 180 CLR 508 per Brennan J at 513, and per Toohey J at 526 - 527; Swaffield per Brennan CJ at 182, and per Toohey, Gaudron and Gummow JJ at 189 - 190. In Swaffield at 211, Kirby J said that "fairness is a concept broad enough to adapt to changing circumstances as well as evolving community values".

149 In relation to the SEF1 and SEF2 forms, it was submitted that, but for AFMA's unlawful compulsion to complete and submit those forms, they would not have been completed or submitted. I accept that to be the case. But it by no means follows that the right of the accused to a fair trial would be jeopardised if the illegally obtained forms were admitted as evidence against them. I accept that one purpose of the unfairness discretion involves the protection of the rights and privileges of accused persons, including their procedural rights. I have reservations as to whether there can ever be any scope for a document to be excluded pursuant to the unfairness discretion for the purpose of protecting an accused person's rights if he or she was not responsible, directly or indirectly, for the creation or completion of the document. But since this is a conspiracy case, I will assume in favour of the accused that they are all alleged, as co-conspirators, to have been responsible for each of the SEF1 and SEF2 forms relied upon by the Crown.

150 There are a number of factors which weigh in favour of the Crown in relation to the exercise of the unfairness discretion. Although no SEF1 or SEF2 forms would have been submitted but for AFMA illegally demanding their completion and submission, this case is based on false statements in such forms, and AFMA, rather than encouraging or inciting such false statements, published warnings on the forms to the effect that prosecutions could be instituted in respect of false statements. Further, the unlawful compulsion arose in respect of the administration of a fishery, with the detection of offences being but one purpose for the compulsion for the completion and submission of SEF1 and SEF2 forms. The SEF1 and SEF2 forms that have survived my exercise of the public policy discretion were demanded by AFMA officers as a result of a mistaken view that there was a legal obligation to complete and submit them, and that mistaken view was shared by those who completed and submitted the forms. The only procedural right infringed was the common law right to silence, but that right is more significant when the police are investigating a crime. No statutory safeguards are relevant. In particular, the restriction imposed by the 1952 Act, s17(4), on the admissibility of returns required by the Fisheries Regulations would have been inapplicable because it did not apply in "proceedings in respect of false information contained in the return". This trial is, in my view, a proceeding in respect of false information said to have been contained in returns. Having regard to all the above factors, and to the seriousness of the crime charged, I do not think it appropriate to exclude any further SEF1 or SEF2 forms pursuant to the unfairness discretion.

151 I do not think it would be unfair for any of the documents seized pursuant to any of the warrants, valid or invalid, to be used as evidence against any of the accused. Invalid 1952 Act warrants were issued as the result of a failure to appreciate some highly complicated legal matters. The other warrants were valid. The obtaining and execution of the warrants did not involve any unfair impingement upon the procedural rights of any of the accused.

152 For these reasons, I do not think any documents should be excluded in the exercise of the unfairness discretion.

153 If the overall discretion discussed in Swaffield is applicable in relation to non-confessional evidence, I see no basis for any result other than the one I have arrived at by considering separately the public policy and unfairness discretions.

154 It is common ground that, at common law, when a court is asked to exclude evidence in the exercise of the public policy discretion and/or the unfairness discretion, the accused bears the burden of proving the illegality or unfairness, and of adducing sufficient evidence to warrant the trial judge excluding the evidence on one or both of the discretionary bases. By contrast, in jurisdictions to which the Evidence Act 1995 (Cth), s138 applies, evidence that has been improperly or illegally obtained is prima facie inadmissible. That is because of the wording of s138(1), which reads as follows:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."

155 Although the accused have been charged with a crime contrary to a Commonwealth statute, s138(1) does not apply in these proceedings. However it would have been applicable if these proceedings had been instituted in the Australian Capital Territory instead of Tasmania. See the Evidence Act, s4. Defence counsel have foreshadowed an argument that Lipohar v R (2000) 200 CLR 485 established that these proceedings could have been instituted in the ACT; that the Crown would have borne the onus of proof on this voir dire if the proceedings had been instituted there; and that it follows that provisions in the Judiciary Act 1903 (Cth), s68 and/or the Evidence Act, offend "the implied doctrine of legal equality in the Constitution" and are therefore invalid. In my view no constitutional point can possibly arise on this voir dire unless its outcome depends on who bears the onus of proof.

156 If the Crown bore the onus of proof on this voir dire, I think the result would be the same. In my view the seriousness of the crime charged, together with the other factors weighing in favour of admitting the challenged evidence, warrant the admission of all the documents seized pursuant to the warrants, as well as the SEF1 and SEF2 forms that I have decided not to exclude in the exercise of the public policy discretion. However, even if the Crown bore the onus of proof, I would still have excluded the same SEF1 and SEF2 forms, and nothing more.

157 For these reasons I made a determination on 29 October 2001 in the following terms:

1 Documents in the following categories will not be admitted as evidence on the trial:

(a) originals and copies of SEF1 and SEF2 forms relating to fishing activities between 10 September 1992 and 31 December 1992 inclusive;

(b) originals and copies of SEF2 forms completed or purportedly completed by receivers of fish in 1993.

2 I decline to exclude the other documents the subject of the voir dire that commenced on 21 August 2001.