Interlocutory applications for discovery
10 On 27 April 2018, interlocutory applications were heard in all four proceedings for discovery, each application having been filed and served on 23 April 2018. In three of those proceedings, agreement was reached by negotiation during the day as to one category of discovery pertaining to execution of the search warrants. In Wilcox & Findlay's proceeding, no separate issue was taken as to the execution of the search warrants affecting them. However, all of the applicants sought, and the Commissioner opposed, orders for discovery in relation to the material that was before the respective issuing officers.
11 On 30 April 2018, orders were made that the contested application in each proceeding for discovery of the material that was before the respective issuing officers be refused.
12 The substance of the discovery application in each proceeding turned on the terms of each OA, by which deficiencies as to the issue of the search warrants are asserted by the applicants. In order to contest the sufficiency of the basis that the applicants advanced for seeking discovery of the material that was before the issuing officers, the Commissioner relied upon particulars sought and provided for the assertions in the four OAs that the issuing officer could not have been satisfied that there were reasonable grounds for the suspicions identified in the search warrants.
13 The combination of the OA assertions and the furnished particulars are best read together so as to appreciate the competing arguments as to whether the applicants had established a sufficient basis for discovery to be ordered, noting that aspects of the applicants' arguments also relied upon broader principles for the asserted entitlement to discovery, as considered below. The relevant assertions and particulars provided within each OA are as follows:
(1) In the SMEC Holdings OA, the following assertions are made (the same assertions are made for the Melbourne search warrant and for the three ACT search warrants, referring to the different issuing officer for each geographic location):
That the [issuing officer] could not have been satisfied, on the basis of the information before her, that there were reasonable grounds to suspect that items described in the first and second conditions of the warrant located at the premises would afford evidence of the commission of the offences purportedly described in the third condition of the warrant.
The particulars furnished were as follows:
The Applicant's position is that, given the breadth of the warrants in terms of the kinds of evidential material to be searched for, it was not possible for information to have been put before the issuing officer that was capable of satisfying the officer that there were reasonable grounds to suspect that there were things at the premises that would afford evidence of the commission of the offences specified in the warrants. As observed in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177 at [92] and [94], the more broadly a warrant describes the kinds of evidential material to be searched for, the more difficult it might be for the information before the issuing officer to satisfy this requirement.
Where the issue in a judicial review proceeding is whether there was sufficient information before the decision maker to reasonably satisfy the statutory criteria for the making of the decision, it will be appropriate (save where the proceeding is an abuse of process) to order discovery of the materials before the relevant decision maker. Without that material, the court would be unable to adjudicate on the issue joined between the parties: Canwest Global Communications Corp & Ors v Australian Broadcasting Authority & Anor [1997] FCA 540; Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp & Ors [1997] FCA 578.
For this reason, discovery of the material described in Category 1 of the proposed Discovery Protocol is necessary, because it will otherwise be impossible for the court to adjudicate the issue of its sufficiency as raised in Grounds 1(a) and 2(a). The challenge to the sufficiency of the material arises, as it did in Caratti, from the extraordinary breadth of the search conditions set out in the warrants.
(2) In the Wilcox & Findlay OA, the following assertions are made:
By reason of the requirements of Part IAA, Division 2 of the Crimes Act, and on its proper interpretation, each of the search warrants was incapable of:
(a) satisfying the issuing officer that there were reasonable grounds for suspicion that there is evidential material relevant to the offences referred to in the third condition by, inter alia, lack of sufficiency in the offence descriptions;
...
The Wilcox & Findlay applicants relied upon the particulars furnished on behalf of SMEC Holdings, reproduced in the preceding subparagraph.
(3) In Mr Goodwin's OA, the following assertions are made (the same assertions being made for all four search warrants):
1. …
(a) That the [issuing officer] could not have been satisfied, on the basis of the information before her, that there were reasonable grounds to suspect that items described in the first and second conditions of the warrant located at the premises would afford evidence of the commission of the offences purportedly described in the third condition of the warrant;
...
3. By reason of the above matters, the decisions to issue the warrants were vitiated by error and were unlawful, invalid and of no effect because:
(b) There was no evidence or other material to justify the making of each decision at law: s 5(1)(h), AD(JR) Act 1977 (Cth); and/or
…
4. Further or in the alternative, each of Warrants 1, 2, 3 and 4:
(a) was invalid because the pre requisites to the exercise of the power to issue the warrants as set out in section 3E(1) of the Crimes Act 1914 (Cth) were not satisfied.
…
The particulars furnished were as follows (emphasis in original):
Proper basis
9. The Applicant's case is that he did not commit any of the offences specified in the warrants. If he had committed any of the offences, it would be likely that he would be aware of evidence sufficient to found reasonable grounds to believe that he had committed the offences and that evidential material relevant to those offences would be located at the target premises.
10. It is the Applicant's case that it can be inferred that whatever the relevant issuing officer was told, if truthful and accurate, could not have been sufficient to satisfy the criteria set out in sec 3E(1) of the Crimes Act 1914 (Cth) (Act).
11. Further, the articulation of the purported suspected offence on the face of the warrant lacks even a recitation of the necessary elements of the offences, let alone any semblance of reference to how it is alleged that the Applicant committed the respective offences. The inadequate, vague and incomplete description in Condition Three of each warrant is indicative of the likely paucity of sufficient information that was provided to the issuer of each warrant.
(4) In Mr Charagi's OA, the following assertions are made:
9. Further or alternatively, Deputy Registrar Kennealy was not able to be satisfied by information on oath or affirmation there [sic] there were reasonable grounds for suspecting that there was, or would be, evidential material at the relevant premises as required by s 3E(1) of the Crimes Act.
10. Accordingly, insofar as the search warrants were purportedly issued in the exercise of power under s 3E of the Crimes Act, then the Applicant is entitled pursuant to s 5 of the ADJR Act for a review of the decision to issue the search warrants because:
...
(e) there was no evidence or other material to justify the making of the decision; and/or
…
Mr Charagi denied that insufficient particulars were provided in respect of the above assertions, but also adopted the particulars furnished by SMEC Holdings and by Mr Goodwin, reproduced above.
14 Because the aspect of the challenge summarised above that is relevant to discovery relied heavily upon the terms of the search warrants and, in particular, their asserted deficiencies, it is necessary to reproduce a truncated version of one of those substantially identical warrants, taking the SMEC Holdings warrant as an example. Only a subset of the things listed in the first condition and a subset of the entities listed in the second condition are reproduced, while all of the third condition stating the offences suspected of having been committed is reproduced, as follows (emphasis in original):
To: Federal Agent [issuing officer]
a constable within the meaning of the Crimes Act 1914, who is the executing officer in relation to this warrant;
And to any other constable whose name may be written on this warrant in accordance with section 3C(1) of the Crimes Act 1914, in which event that constable shall be the executing officer in relation to this warrant:
Whereas I [issuing officer], Magistrate
an issuing officer within the meaning of section 3E of the Crimes Act 1914, am satisfied by information on oath that there are reasonable grounds for suspecting that there is (or will within the next 72 hours be) at the premises located at:
[address], Melbourne, Victoria (VIC) 3004
evidential material, as defined in the Crimes Act 1914, which satisfies ALL of the following three conditions namely:
First condition: Things which are:
• Mobile telecommunication handsets
originals or copies of any one of more of the following, including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device:
• Mobile telecommunications account statements
• Board Minutes
• Email correspondence
• Correspondence
• Diary Notes
• Andhra Pradesh Water Sector Improvement Project (APWSIP) "Contract for Consultants' Services for Engineering Design", Contract Agreement No: 2/2009-10; Dated 6 January 2010
• [another seven contracts are listed]
• Telangana Water Sector Improvement Project (TWSIP) "Contract for Consultants' Services for Monitoring & Evaluation" "Contract Agreement No: 2/2014-15: Dated 2 June 2014
AND the following items relevant to vehicles, travel, employee costs, and claims made against the client and reimbursements received from the client in relation to the above listed Andhra Pradesh Water Sector Improvement Projects and Telangana Water Sector Improvement Projects, where the client is either of Government of Andhra Pradesh Irrigation and CAD Department, or Government of Telangana State Irrigation and CAD Department:
• Bank accounts statements
• Invoices, including electronic drafts
• Transaction Vouchers, including electronic drafts
• Receipts, including electronic drafts
• All General Ledger Accounts for the period 6 January 2010 to date relating to:
[a lengthy list of types of financial records and documents follows]
• Records of SMEC employees and sub-contractors
• Records of discipline of SMEC employees and sub-contractors
• Records of termination of employment of SMEC employees and sub-contractors
• Policy/compliance documents in relation to the authorisation of invoices issued by SMEC, including electronic drafts
• Policy/compliance documents in relation to accounting procedures
• Policy/compliance documents in relation to the management of fraud, including electronic drafts
• Human Resource policy documents
• Details on how changes to policy/procedures are communicated to staff and evidence of the communications advising of changes to policy/procedure
Together with any manual, instruction, password or other thing that assists to gain access to or interpret or decode any of the above things.
Second condition: And which relate to any one or more of the following:
• SMEC Holdings Pty Ltd
• SMEC International Pty Ltd
• SMEC India (Pvt) Ltd
• Government of Andhra Pradesh Irrigation and CAD Department
• Government of Telangana State Irrigation and CAD Department
• Andhra Pradesh Water Sector Improvement Project
• Telangana Water Sector Improvement Project
• SMEC Bangladesh Limited
• ACE Consultants Limited
• SNC Lavalin International Incorporated
• Siddhirganj Peaking Power Plant project
• [Names of various persons listed, including the names in the offences described in the third condition below]
Third condition:
And as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth:
Between 1 April 2016 and present, Maxwell John FINDLAY, Andrew Richard GOODWIN, Alastair McKENDRICK, George LASEK, Sri Kishen DHAR, Ankur CHARAGI, Rajanish KUMAR and other persons as yet unidentified did conspire to intentionally falsely deal with accounting documents contrary to section 11.15 and section 490.1(1) of the Criminal Code (Cth); OR
Between 2 April 2015 and about 28 August 2016, Andrew Richard GOODWIN, Philip Charles WILCOX, Sri Kishen DHAR, and Barry Rex NORMAN, did conspire to defeat justice contrary to section 42 of the Crimes Act 1914 (Cth).
I hereby issue this warrant which authorises you to enter and search the premises as described above.
15 The substance of the dispute between the Commissioner and the various applicants was whether the state of the authorities is such that there was a sufficient basis for the Commissioner to be ordered to discover the material that was before each of the issuing officers. The answer to that question turned in significant measure upon deciding between the competing submissions as to the effect of the discovery authorities relied upon.
16 Given that the four sets of applicants were separately represented at the interlocutory hearing, there was some degree of commonality and some degree of difference between what was argued for each. With the exception of the argument based upon assertions of innocence by Mr Goodwin and Mr Charagi, which was not advanced by the other applicants, each other submission is treated in these reasons as having been adopted by the remaining applicants. The identification of the source of a particular submission does not confine its application only to that applicant.
17 It is convenient to commence with certain broader discovery propositions and principles, which Wilcox & Findlay in particular urged the Court to consider as providing, in and of themselves, a sufficient basis for the exercise of the undoubted power and discretion to order the discovery sought. It was submitted by Wilcox & Findlay that discovery in judicial review proceedings should not be treated any differently than in any other civil proceedings, citing Australian Securities Commission v Somerville (1994) 51 FCR 38 at 52-53, where it was said:
There seems to be no justification in the authorities to which reference has been made above nor, indeed, in any of the other authorities to which we were referred in argument for any proposition to the effect that discovery in judicial review proceedings should be treated otherwise than according to the normal principles applicable in civil proceedings.
Doubtless in many cases by reason of an absence of dispute as to the primary facts, or by virtue of reasons and particulars furnished pursuant to s 13 of the Judicial Review Act the occasion for making an order for discovery will not arise. But in a case where the court called upon to make the decision has available to it sufficient material, either in the form of pleadings or evidence, to enable it properly to exercise its discretion, an order for discovery, either general or particular, may be made.
18 It was further submitted by Wilcox & Findlay that where a case cannot be dismissed as an abuse of process and the pleadings raise an issue for decision to which a party's documents may be relevant, the Court will have a discretion to order discovery, citing the Full Court case of Treasurer of the Commonwealth of Australia v Canwest Global Communication Corp [1997] FCA 578, where it was said (the passage emphasised was relied upon, but the balance is reproduced for important context):
Where, in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleadings raise an issue for decision to which a party's documents may be relevant, the Court will have a discretion to order discovery. The need to establish a basis for the suspicion described by Brennan J in W.A. Pines will generally be confined to the kind of case to which he was adverting. In the normal case, the pleadings will adequately ground the order.
Prior to the passage referred to and quoted above, the Full Court in Canwest also endorsed the principles that had arisen in the Trade Practices Commission (TPC) cases referred to below as applying in cases of that nature.
19 The above statements of principle in Somerville and Canwest are binding and must be accepted as far as they go. However, Wilcox & Findlay also suggested, in reliance upon that and other like broad statements of principle in relation to discovery in judicial review proceedings, that regard should not be had, or did not need to be had, to the key Full Court authorities dealing directly with discovery in aid of a challenge to the exercise of coercive or intrusive law enforcement powers. That proposition is rejected, both as a matter of first principle and as a matter of precedent. Longstanding, highly influential and, in some cases, clearly binding Full Court authority directly bears on the issues that have been raised. Moreover, other cases dealing with areas not directly relating to law enforcement have distinguished that line of authority without casting any doubt on their correctness in this context.
20 It was also submitted that the following statements of principle were apposite:
(1) In Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426, Lindgren J observed in the context of a discovery debate at 439F-G:
A well-accepted situation in which the court often exercises its discretion by ordering discovery before particulars are supplied is that in which the party which seeks particulars and resists discovery is alone in possession of the relevant documents [citing a long line of authority to support that proposition]
Superficially, that statement of principle applies to the present situation in which the Commissioner asserts that the particulars provided by the applicants are inadequate. However, that basis for comparison is weaker than it appears. In CC (New South Wales), the TPC had brought a collusive tendering case, alleging various contraventions of the former Trade Practices Act 1974 (Cth). As part of that case, the TPC was, in part, relying upon a conversation that had taken place at a meeting between certain of the respondents or their representatives, and was unable to provide particulars of what had been said. Lindgren J's comment is therefore to be understood in that context, and also in the context of less stringent rules for discovery under the former Order 15 of an earlier version of the Rules of this Court in relation to discovery, having no equivalent to r 20.11 as is in force today.
(2) In Murphy v Victoria [2014] VSCA 238; 45 VR 119, the Victorian Court of Appeal, in a passage at [35] that footnoted, among other cases, CC (New South Wales) from which the above quote was extracted, stated, in overturning a primary judge's finding that a party should be "tied to the few instances of conduct of which he was able to give particulars without the aid of discovery" (omitting footnotes):
... It is one thing to make an allegation without any basis for it - which is plainly impermissible - and quite another to make allegations - as the appellant did in this case - which ex facie were soundly based on the best particulars which could be given until after discovery (and which, it should be noted, were not sought to be struck out as being something else). In a case like this, where ex hypothesi the documents needed to prove the appellant's allegations were within the respondents' exclusive possession or power, and the respondents refused to produce them, the appellant not only had no option other than to plead his case as he did but was perfectly entitled to do so. The propriety of so proceeding is established by a long line of authority dating back to the nineteenth century.
Properly read, the above passage supports, rather than detracts from, the authorities discussed below requiring a sufficient basis for an allegation before discovery will ordinarily be permitted to advance the proof of that allegation.
21 This Court has addressed the issue of discovery in the context of the information relied upon to exercise investigative powers by the former TPC (now the Australian Competition and Consumer Commission) in Melbourne Home of Ford v Trade Practices Commission (1979) 36 FLR 450 and W.A. Pines Pty Ltd v Bannerman (1980) 41 FLR 175 and a decision by the Australian Securities Commission (now the Australian Securities and Investments Commission (ASIC)) to commence court proceedings in Somerville. In W.A. Pines, it was observed at 181-182 (footnotes omitted):
We heard no argument to suggest that par. 6 [of the statement of claim] was inapposite to raise a challenge, though the difficulty of supporting a challenge is formidable indeed. That is not to say that it is impossible to challenge the validity of a notice for non-fulfilment of the condition of the power. The modern authorities are uniform in favour of judicial review of powers which are conditioned upon the existence of reasons for a specified belief.
…
Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which par. 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim: cases such as Ross v. Blakes Motors Ltd., but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by par. 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J. said in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman: "In the absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the court on established principles should refrain". His Honour's refusal of discovery was right and it ought not to be disturbed.
22 In Carmody v MacKellar (1996) 68 FCR 265, a case challenging the issue of listening device and telecommunications interception warrants by designated judges of this Court acting personum designata, the principles in Melbourne Home of Ford, W.A. Pines and Somerville were distilled by Merkel J as follows at 280:
The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman (1980) 41 FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38.
• the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;
• the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought;
• if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;
• the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;
• if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.
23 As the quote from Canwest reproduced above at [18] indicates, the Full Court there endorsed the principles that had arisen in W.A. Pines as applying in cases of that nature. Canwest therefore does not generally support applying a less stringent test for granting discovery in law enforcement cases.
24 Jilani v Wilhelm [2005] FCAFC 269; 148 FCR 255 concerned two men who had brought judicial review proceedings challenging the issue of a search warrant. A judge of this Court had made orders granting leave to the applicants to amend their pleadings and granting them discovery of documents relating to requests by the Australian Taxation Office for the issue of a search warrant and for documents relating to the swearing of the "information" by which the search warrant was obtained. Both orders were overturned on appeal. In relation to discovery, after reproducing at [108] the above quote from Carmody v MacKellar, the Full Court held as follows at [109]-[113]:
109. It is true as his Honour said at 280 that the issue of a search warrant is an in camera exercise of executive power which should not be immunised from review by the imposition of unrealistic criteria for discovery. But these observations must be read in light of the last bullet point in the summary of principles. The answer to the conundrum raised by Merkel J about the undesirability of secrecy is, as he said at 281, that the threshold may be lower in such cases but there must be some evidence or proper basis for suggesting that the warrant might have been issued unlawfully.
110. The principle against allowing discovery for the purpose of "fishing" was also referred to by Wilcox J in Nestle Australia Limited v Commissioner of Taxation (1986) 10 FCR 78 ("Nestle") at 82.
111. Wilcox J went on, at 83, to refer to the decisions in WA Pines and Lloyd v Costigan (1983) 62 ALR 284. The effect of those authorities is that it is not open to an applicant to make a bare allegation that a decision was made without any basis and then use the process of discovery to find out if the allegation has foundation.
112. There must be sufficient definition of the issues to enable the Court to see that the documents sought on discovery relate to a live issue; there must at least be something from which the Court can see that there is a real issue the proof of which would be assisted by discovery; Nestle at 83; Murchison v Keating at 344-345.
113. It follows from what we have said about the application for leave to amend that we do not agree with the primary judge's finding that the applicants are not fishing. In our view, the applicants have made bare allegations without the necessary basis to support them. It is plain to us that they hope to find something on discovery which will enable them to support the existing allegations, or perhaps to raise new ones.
25 Jilani is thus clear and binding authority, following and endorsing Carmody v MacKellar, and the cases cited therein, and applying it to the context of challenges to search warrants issued under s 3E of the Crimes Act 1914 (Cth)), that ordinarily there must be some evidence or proper basis for suggesting that a search warrant might have been issued unlawfully before discovery will be allowed in aid of such a claim. Given the comments in Murphy v Victoria reproduced at [20(2)] above, this is not a radical proposition, albeit applied with some strictness in the law enforcement investigative context. It must generally be shown that there is a real live issue, the proof of which would be assisted by discovery. The asserted issue must go beyond speculation, and the discovery sought cannot be, in truth, a classic fishing expedition designed to ascertain whether any case in truth exists at all, rather than being directed to improving the evidence in support of such a claim.
26 Some reliance was placed by Mr Goodwin on [60] in Jilani as supporting a standing right of access to the material that was before an issuing officer, independently and without meeting the requirement described in the preceding two paragraphs, where nothing more has happened than the bare question of invalid issue of a search warrant having been raised. That proposition must be rejected for two reasons. First, the Full Court at [60] in Jilani was addressing the question of being permitted to have access to such material, which necessarily meant that the material had to already be available for access to take place, such as by discovery, or by a subpoena or notice to produce (both of which have somewhat equivalent barriers by reason of the requirement for a legitimate forensic purpose and the bar on fishing expeditions). Secondly, and more fundamentally, [60] in Jilani requires the issue to be raised by being "properly put forward" in an application before access is granted. At least when there is a discovery application to be determined, [60] must be read harmoniously with [108]-[113] in Jilani to ascertain what is meant by an issue being "properly put forward".
27 Wilcox & Findlay asserted, in submissions that are taken to be adopted by the remaining applicants, that the present application for discovery is not speculative and could not be characterised as a fishing expedition, because the documents sought were relevant to the grounds stated in their OA and there was no lack of bona fides with regard to the claims made, unlike the situation described in Melbourne Home of Ford at 460 and in W.A. Pines at 182. In support of that assertion, Wilcox & Findlay relied on the following aspects of their case:
(1) the documents sought were relevant to ground 6(a) in their OA, as the power to issue a warrant to search premises under s 3E (1) of the Crimes Act is conditional upon satisfaction "by information on oath or affirmation" that there are reasonable grounds for suspecting that there is, or will be within the next 72 hours, any evidential material at the premises;
(2) ground 6(b) in their OA states that the search warrants were incapable of defining the limits of the searches, and, as noted by the Full Court in Caratti v Commissioner of the AFP [2017] FCAFC 177 at [94], the primary judge in that case had observed that the more broadly a warrant describes the kinds of evidential material to be searched for, the more difficult it might be for the information before the issuing officer to satisfy that requirement;
(3) the facts in existence alleged to constitute the indictable offences referred to in the third condition of the search warrants had not been identified, and, in light of the denials by the applicants as to the commission of those offences, the case involves a ground of review being "objective absence of some fact or circumstance essential to the regular exercise of the power in question", citing O'Sullivan v Parkin [2008] FCAFC 134; 169 FCR 283 at [29].
28 With respect, each of the general propositions in the preceding paragraph applies to all challenges to the issue of a search warrant and largely states the obvious in the abstract. Stating them begs the question as to whether it has been demonstrated that a sufficient case has been made for discovery in the present situation. It should also be noted that the Full Court in Caratti at [94] was doing no more than commenting on what the primary judge had said in that case in order to address a particular argument that had been advanced. The Full Court was not in any way stating a test for invalidity, nor dealing with, let alone addressing, any question of discovery. The observations of the Full Court in Caratti at [94] are therefore being taken out of context and do not afford the support sought to be gleaned from them to the effect that a broadly drafted search warrant is, without more, capable of supporting an inference that the information by which it was obtained was inadequate. Apart from lacking any compelling logic, that sort of argument is nothing more than bootstrap reasoning, effectively presuming inadequacy in order to infer its existence.
29 If a search warrant is found to be invalid on its face, that does not, without more, support any inference that the information by which the decision was made to issue it was insufficient, any more than the issue of a valid search warrant on its face supports any separate inference as to the sufficiency of that material beyond the (albeit important) statement to that effect in the warrant itself. The two concepts are separate and distinct. Logically, a bare assertion of invalidity of a search warrant at an interlocutory stage cannot achieve more than this Court finding invalidity following a final hearing.
30 Mr Goodwin and Mr Charagi also relied upon Parkin, and, in particular, upon the unusual facts of that case, to support an argument that the present circumstances constituted a proper basis for departing from the requirements described in Jilani that are, as noted at [24]-[25] above, generally required to be met. In order to test that proposition, it is necessary to consider Parkin in some detail.
31 Parkin concerned an adverse security assessment made by the Australian Security Intelligence Organisation (ASIO) in relation to Mr Parkin, and separately in relation to two other individuals. The asserted similarity to this case is drawn from Mr Parkin's circumstances, such that the case concerning the other two individuals can be put to one side. Mr Parkin, a citizen of the United States, obtained a tourist visa and came to Australia a month or so later. Some three months later, ASIO issued an adverse security assessment and provided it to the Minister responsible for immigration, with a recommendation that Mr Parkin's visa be cancelled. The Minister accepted the recommendation and cancelled the visa. Mr Parkin was removed from Australia and returned to the United States. He subsequently commenced proceedings in this Court challenging the adverse security assessment. The pleadings in the case established that there was nothing in ASIO's holdings or in records available from other authorities which would have justified grant of the refusal of the visa in the first place. It followed that the sole basis for the adverse security assessment was activities attributed to Mr Parkin after his arrival in Australia.
32 The primary judge in Parkin granted discovery of the material upon which the adverse security assessment had been based. His Honour found that while discovery was, in a sense, fishing, it was not impermissible fishing, because it was not sought to determine whether Mr Parkin had a case, but, rather, to prove the arguable case that he had already commenced. That arguable case was based upon Mr Parkin's assertion that, based upon his own knowledge of what he had done in the short time that he had been in Australia, he had not engaged in any activities that warranted the preparation or approval of the adverse security assessment. Although not expressly stated, the ambit of Mr Parkin's activities in Australia as a visitor who was only here for a short time was evidently regarded by the primary judge as being necessarily quite limited, although there was no evidence as to precisely what those activities were. The Full Court dismissed an appeal from the primary judge's discovery orders made.
33 Mr Goodwin and Mr Charagi relied upon their assertions of innocence, in the case of Mr Goodwin, of having committed either of the offences set out in the third condition of the search warrant, and, in the case of Mr Charagi, in respect of only the first of those offences. Those assertions were relied upon to support the same outcome for their discovery applications as was achieved by Mr Parkin. The other applicants seemed to rely upon Parkin as constituting some qualification of Jilani, but based on inferences that they argued could be drawn from the asserted deficiencies in the search warrants to the effect that the material before the issuing officers must have been inadequate. However cast, the reliance on Parkin is misplaced. That is principally because the nature of the ASIO decision to issue the adverse security assessment is very different from the decision to issue search warrants. That difference was critical to the conclusion that the Full Court reached in Parkin.
34 The Full Court in Parkin at [25] to [29] accepted Mr Parkin's argument, recorded at [22], that Jilani (and certain other authority to like effect that does not need to be considered) could and should be distinguished upon the basis that his case did not involve a conventional administrative law decision that concerned the state of mind of the decision-maker, but, rather, that at least a significant part of his case relied upon an absence of facts, the result of which, if proven, meant that the adverse security assessments could not have been made whatever the state of mind of the decision-maker. Mr Parkin's allegations reflected his own state of knowledge about circumstances directly affecting him and therefore could not be dismissed as speculative.
35 The Full Court in Parkin considered Jilani in some detail and distinguished it upon the basis that it concerned a challenge based on circumstances that went to the making of the decision that was said to be tainted and thus fell within the categories identified in W.A. Pines. The Full Court concluded that the line of authority that commenced in W.A. Pines and was carried through to Jilani should not be applied to a case in which an administrative decision is attacked for an alleged objective absence of some fact or circumstance essential to the regular exercise of the power in question, especially when that asserted absent fact or circumstance is necessarily within the knowledge of the person affected. In those circumstances, the Full Court concluded that this Court's approach to discovery should not be any different to that in factual litigation generally. In those circumstances, a pleaded case that was denied should not be regarded as speculative even when no relevant evidence has been led.
36 Mr Goodwin (and, adopting his argument, Mr Charagi) sought to suggest that his case was one which involved an attack on the issuing officers' decision based on an objective absence of a necessary fact, namely his innocence of the offences contained in the third condition to each search warrant. However, that assertion of similarity does not survive close scrutiny and cannot be accepted. First and foremost, while the assertion of innocence is relied upon, that is done to impugn the capacity of the issuing officer to reach the requisite state of satisfaction, which, in turn, is an assessment of the reasonable grounds for the search warrant applicant's state of mind. The dichotomy in Parkin thus cannot be avoided. Each of these search warrant challenges falls on the Jilani side of the divide when it comes to discovery, rather than on the Parkin side.
37 Secondly, and perhaps more fundamentally, the bare assertions of innocence do not themselves withstand scrutiny as constituting proof of the asserted fact sought to be relied upon. It is important to note, by way of correction to the suggestion in a number of the particulars and in various correspondence sent on behalf of Mr Goodwin and Mr Charagi, that it is incorrect to describe any of the persons named in the suspected offences described in the third condition to each of the four search warrants as being alleged to have committed the offences described. Search warrants are generally obtained and executed at an early stage of an investigation. They are overtly obtained upon the basis of suspicion, rather than belief or firmer states of mind.
38 The fact of obtaining and executing a search warrant does not, for that reason alone, constitute any allegation, at that stage, that the offences referred to have, in fact, been committed at all, let alone that they have been committed by the persons named. As each of the four search warrants in this instance makes clear on its face, each was obtained upon the basis of no more than a suspicion held by the search warrant applicant that the offences had been committed. That is a component of the overall suspicion that must be shown, to the satisfaction of the issuing officer, to be held on reasonable grounds.
39 It therefore follows that a claim of innocence of the commission of an offence described in a search warrant is of little or no value. It cannot establish that the relevant fact does not exist, namely a suspicion contrary to the denial, nor that the suspicion is unreasonably held. That is especially so in circumstances where a person may have in fact engaged in conduct, or been involved in some way or been aware of conduct engaged in by another person, and have a relevant state of mind in relation to such conduct, yet not be aware that the combination of that conduct and that state of mind constitutes the commission of an offence. That is the very foundation of the principle that ignorance of the law is no excuse, meaning that lack of awareness of what the law requires or proscribes is no defence as to guilt, even if it may be relied upon as a fact in mitigation on sentence in the event of conviction.
40 It follows that a bare denial of guilt, or a bald assertion of innocence, contained only in a solicitor's correspondence, being all that is present in this case, cannot, without much more, establish any basis for immunity from suspicion for the purposes of the AFP validly obtaining a search warrant. It is doubtful that even a detailed denial by sworn and tested evidence would be sufficient for that purpose in light of the above observations. That is especially so when, as in this case, the suspected offences are both of conspiracy, whereby difficult questions of agency and participation arise so as to engage the co-conspirators' rule, by which a defendant may be legally and criminally responsible for the words and actions of others carried out on their behalf: see Ahern v The Queen (1988) 165 CLR 87 and Doney v The Queen (1990) 171 CLR 207.
41 The assertions of innocence relied upon by Mr Goodwin and Mr Charagi therefore cannot provide any sound basis for inferring a lack of sufficient grounds for the issue of a search warrant, especially when each search warrant in this case contains an express statement by the issuing officer (here, either an independent judicial officer acting administratively personum designata, or an independent senior court officer) of satisfaction that reasonable grounds have been shown to exist as to the suspicions set out. Those suspicions are cumulative in effect by reference to all three conditions in each search warrant. The conjecture or surmise that constitutes a suspicion, following George v Rockett (1990) 170 CLR 104 at 115-6, may end up being shown to be without any or sufficient foundation, but that possible outcome cannot be any impediment to such a suspicion being investigated.
42 The broader statements of principle also relied upon by Wilcox & Findlay in particular may be accepted as far as they go. However, the proposition that the broad discretion involved in exercising the power to order discovery should not be taken to be at least significantly guided by the principles stated by the Full Court in W.A. Pines and Jilani cannot be accepted. To ignore such longstanding and influential authority smacks of exercising discretion upon an idiosyncratic and abstract notion of justice, focusing on little more than the possibility that examination of the material before the issuing officers might reveal a deficiency that the applicants hope might exist. That is, in truth, mere speculation. The exercise of the discretion must be based on sounder and more principled foundations than that.
43 For completeness, certain other arguments advanced by Mr Goodwin, and adopted by the other applicants, should be addressed:
(1) It was argued that Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [64] states a general rule that the documentary material before a decision-maker is to be treated as being broadly relevant for the purposes of judicial review. That may be so, as a general rule, but it does not overcome the requirements in Jilani that are also generally applicable and clearly applicable in each of these proceedings.
(2) It was submitted that Canwest, Jilani and Parkin each recognise that discovery "will be ordered if a claim is made that material before an issuer was objectively incapable of justifying the issuing of a warrant". That characterisation of those cases is rejected. In any event, there was no material advanced in support of any of the interlocutory applications that came close to supporting any possible, let alone reasonable, conclusion that the decision that was made to issue each of the search warrants was incapable of being justified. Properly considered, there was nothing beyond bare assertion to cast doubt on the correctness of the statement by the issuing officer near to the commencement of each warrant as to having reached the requisite state of satisfaction.
(3) It was asserted that no reasons for issuing the search warrants were furnished, citing Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42; 211 FCR 298 per Jacobson J (with whom Gilmour J agreed) at [159] to [160] as being relevant. That is incorrect. In Saraceni, the unsuccessful appellant challenged the decision of ASIC to authorise a person to apply to a court for an examination summons to issue without giving reasons. Unlike that case, the face of each of the search warrants with which these proceedings are concerned records the statutory reason for the issue of each warrant, namely the necessary state of satisfaction having been reached. No more was required. Moreover, Saraceni at [160] reinforces the standing of W.A. Pines and the other cases considered and analysed in Somerville in making it "clear that discovery is not to be ordered to assist a party to make good a bare assertion which amounts to no more than speculation".
(4) It was asserted that the applicants would have been entitled to preliminary discovery of the material sought, but no foundation is provided for that assertion. No application was made for preliminary discovery, nor could it be made once proceedings had been commenced. That unsupported assertion was relied upon for the further proposition that ordinary discovery must follow if preliminary discovery was available, upon the basis that any different outcome would be ironic, citing Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113 at 116. Caltex Refining was a very different case to the present. Any irony that might have existed in Caltex Refining arose from the particular facts and circumstances of that case. In any event, irony is not any basis for establishing a principle that the expressly different test for preliminary discovery should be applied to general discovery, or, indeed, to any kind of discovery after proceedings have commenced. Irony, should that arise, does not change the fact that preliminary discovery permits fishing, while ordinary discovery does not. Conversely, preliminary discovery cannot be used for the same purposes as ordinary discovery. The comment in Caltex Refining should therefore be taken to be no more than an observation as to the sort of circumstances in which a more liberal approach to the discretion to order discovery might be taken in order to avoid absurdity or a waste of resources.
(5) It was pointed out that the affidavit by which search warrants were obtained has been voluntarily provided in other cases. It was not explained what relevance that has to a case in which that has not occurred. The fact that the Commissioner may have chosen to furnish the search warrant affidavit in a prior case has no material bearing on the decision not to do so in this case.
(6) It was submitted that refusing discovery would shield the issuer of a search warrant from review, citing the industrial and constitutional case of Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [99]. It is not apparent how a privative clause case has anything useful to say in this very different context. Difficulty in successfully challenging an administrative decision is in an entirely different category to legislative attempts to immunise such decisions from any judicial review at all. The issue of accountability for decisions of this kind was addressed in the passage from Jilani at [109], reproduced above at [24]; see also W.A. Pines at 181 to 183.
44 The Commissioner correctly pointed out that, as Hely J observed in Williams v Keelty [2001] FCA 1301; 111 FCR 175 at [211], an application for the issue of a search warrant under s 3E of the Crimes Act only has to meet a "low threshold requirement". This means that it is a "difficult and exacting task" to establish that a search warrant has been invalidly issued by reason of insufficient material before the issuing officer, citing Wong v Commissioner, Australian Federal Police [2014] FCA 443 at [4]. That characterisation is supported by considering more fully what was said in Williams v Keelty and in Wong, and also by the Full Court in Caratti, as follows.
(1) In Williams v Keelty, Hely J observed:
166 It is the issuing officer who is required to be satisfied that there are reasonable grounds for suspecting the relevant matters. The notion of reasonable grounds for a suspicion imports an objective test, but "reasonable" involves a value or normative judgment (Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 167), and there may well be legitimate differences of opinion as to what falls within the term, particularly when it is used in relation to a nebulous expression such as "suspicion". A Court is not entitled to substitute its own opinion on that question for the opinion of the issuing officer. That does not mean that the issuing officer has an unexaminable discretion; it does mean, however, that the issuing officer's decision is only impeachable if the decision was one which the officer could not lawfully reach on the materials before him: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276.
167 In George v Rockett at 111, the High Court said that it was implicit in the precursor to s 3E, which was under consideration in that case, that the applicant for the search warrant should entertain the suspicion to which the section refers. The issuing officer must be satisfied that there are reasonable grounds for entertaining the relevant suspicion, without any requirement that the issuing officer must also entertain the relevant suspicion. However, it must appear to the issuing officer, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion exist: George v Rockett at 112.
…
192 It may be that the suspicions held by the applicant for the warrant in relation to this or other suspected offences will turn out not to have been well founded. Documents seized pursuant to the search warrants might themselves establish this to be so. But the requirement is only that the issuing officer be satisfied that there be reasonable grounds for suspecting - a requirement which may be satisfied even though it may later emerge that the suspicions were not well founded.
…
211 … In my view, it was open to the issuing officer to form the opinion which he did upon the basis of the facts alleged in the application. That opinion, of course, is only that there are reasonable grounds to suspect, which as I have already indicated, is a low threshold requirement.
(2) In Wong, Pagone J made the following observations about the "difficult and exacting" task facing any person seeking to vitiate the issue of a search warrant at [4]:
It is for the applicant to establish that the Magistrate could not have been satisfied that there were reasonable grounds for suspecting that there would be evidential material at the applicant's premises which satisfied the three conditions: Williams v Keelty (2001) 111 FCR 175 [236]; Kennedy v Baker (2004) 135 FCR 520, [85]-[86]; Egglishaw v Australian Crime Commission (2006) 230 ALR 254, [19]. An applicant seeking to challenge a warrant on the basis of the issuing officer not having reasonable grounds for the suspicion required to issue the warrant has a difficult and exacting task. The burden to be discharged, and the analysis by which it may be discharged, was considered in Williams v Keelty (2001) 111 FCR 175. The applicant must establish that there was an absence of what his Honour referred to in Williams v Keelty as the "foundational facts" from which the issuing officer might have had the relevant suspicion on reasonable grounds. Identifying the foundational facts will proceed from the relevant offences, bearing in mind that an applicant must show the absence of reasonable grounds for suspicion that those offences have been committed. For these purposes "suspicion" is not the same as a belief, but is a "state of conjecture or surmise" or a "slight opinion, but without sufficient evidence" (George v Rockett (1990) 170 CLR 104, 115), although it does require some factual basis upon which a suspicion can be based of a kind that would "create in the mind of a reasonable person […] an actual apprehension" of the relevant fact (Queensland Bacon Pty Ltd v Rees (1996) 115 CLR 266, 303).
(3) In Caratti, the Full Court pointed out at [34] that:
In all challenges to the validity of the issue of a search warrant, the usual restraints on judicial review intervention will apply. This includes, most importantly, the principle that the decision manifested in the search warrant issued must be read beneficially, and not with an eye keenly attuned to the perception of error: Minister for Immigration And Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. However, application of that principle must accommodate the purposes of a search warrant in informing both those executing it and occupiers as to the scope of the search that is authorised. The scope of a search warrant may be far from precise given that it is issued for an investigative purpose, based upon the low threshold of "suspicion" being met. All that really means is that an error or misdescription must be shown to be material to the purposes of a search warrant. However when it comes to mismatches between the information and the search warrant, that feature must not be approached with undue technicality or any requirement for excessive precision. Practical considerations must always be kept steadily in mind: Baker v Campbell (1983) 153 CLR 52 at 83.
45 The difficult and exacting task for the applicants was not met sufficiently at the interlocutory stage for the applications for discovery of the material before the issuing officers to succeed. The applicants needed to demonstrate a proper basis for the exercise of the discretion to order discovery, rather than merely hope that the end might justify the means. They failed in that endeavour.
46 For the foregoing reasons, the orders were made on 30 April 2018 dismissing the applications for discovery of the material before the issuing officers. As there was partial, albeit negotiated, success as to the aspect of discovery going to execution, the order was made that the costs of the interlocutory applications for discovery should, in each case, be ordered to be costs in the cause.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.