Hart v Commissioner, Australian Federal Police [2002] FCAFC 392 (5 December 2002)

Last Updated: 5 December 2002

FEDERAL COURT OF AUSTRALIA

Hart v Commissioner, Australian Federal Police [2002] FCAFC 392

STATUTORY CONSTRUCTION - search warrants - Crimes Act 1914 (Cth), ss3E, 3F - whether "strict construction" required of legislation authorising search warrants - whether legislation "penal" in character - approach to construction.

CRIMINAL LAW - search warrants - nature of "seizure" - Crimes Act 1914 (Cth), ss 3K, 3L - seizure distinct from removal of things from premises to determine whether they can be seized - whether downloading of material in electronic form a seizure of the information - expiration of power of seizure - whether power to remove things to determine whether they can be seized survives expiration of warrant - whether copying of electronic informationmeans that the information has "moved" from the search premises.

STATUTORY CONSTRUCTION - whether s 3K(2) of the Crimes Act 1914 (Cth) is subject to an implied qualification that an examination can take place within a reasonable period.

WORDS AND PHRASES - "seizure", "moved", "warrant that is in force".

Crimes Act 1914 (Cth), ss 3C, 3E, 3F, 3K, 3L, 3N, 3Q.

Federal Court Rules, O 52 rr 14, 22(3)

Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth)

Cybercrime Act 2001 (Cth)

Chambers Science and Technology Dictionary (1988)

Prentice Hall's Illustrated Dictionary of Computing (2nd ed, 1995)

Harts Australia Ltd v Commissioner, Australian Federal Police (1996) 141 ALR 493,referred to.

Harts Australia Ltd v Australian Federal Police (1997) 75 FCR 145, cited.

Harts Australia Ltd v Commissioner, Australian Federal Police [2002] FCA 245; (2002) 49 ATR 427, referred to.

Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175; (2001) 65 ALD 463, referred to.

Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175, cited.

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, cited.

Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390, cited.

Rogers v Moore [1992] FCA 602; (1992) 39 FCR 201, cited.

R v Inland Revenue Commissioners; Ex parte Rossminster Ltd [1979] UKHL 5; [1980] AC 952, cited.

George v Rockett [1990] HCA 26; (1990) 170 CLR 104, cited.

Karina Fisheries Pty Ltd v Mitson (19990) [1990] FCA 154; 26 FCR 473, cited.

Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132, cited.

Beckwith v R (1976) 153 CLR 569, cited.

Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, cited.

Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, cited.

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, cited.

Dunesky v Commonwealth (1996) 89 A Crim R 372, cited.

Baker v Campbell [1983] HCA 39; (1985) 153 CLR 52, cited.

Crowley v Murphy (1981) 53 FLR 123, cited.

Trimboli v Onley (No 3) (1981) 56 FLR 321, cited.

Reynolds v Metropolitan Police Commissioner [1985] 1 QB 881, cited.

Allitt v Sullivan [1988] VicRp 65; [1988] VR 621, cited.

Bartlett v Weir (1994) 71 A Crim R 11, cited.

Island Way Pty Ltd v Redmond (1990) 1 QD R 431, cited.

Johnston & Co v Hogg (1883) 10 QBD 432, cited.

Scott v Gere [1988] WAR 377, cited.

Whim Creek Consolidated NL v Colgan [1991] FCA 467; (1991) 31 FCR 469, cited.

R v Adams   (1980) 1 QB 575  , cited.

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408,cited.

Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40FCR 409, cited.

Moore v Attorney-General (Irish Free State) [1935] AC 484, cited.

R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452, cited.

Brown v West (1990) 169 CLR 195, cited.

Review of Commonwealth Criminal Law (Fourth Interim Report, 1990).

STEVEN IRVINE HART v COMMISSIONER, AUSTRALIAN FEDERAL POLICE & ORS

Q 50 of 2002

FRENCH, SACKVILLE & NICHOLSON JJ

SYDNEY (Heard in Brisbane)

5 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIAQUEENSLAND DISTRICT REGISTRY Q50

OF 2002ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: STEVEN IRVINE HART

APPELLANTAND: COMMISSIONER, AUSTRALIAN FEDERAL POLICE

FIRST RESPONDENT

MICHAEL JOHN MORRIS

SECOND RESPONDENT

WILLIAM JOSEPH McKAY

THIRD RESPONDENT

HENRY ALBIEZ, I. BARTLEY, DENICE BIRD, JOHN BROWN, MICHAEL BUTCHER, IVOR CHALMERS, RON C. CRAMP, PAUL DELANY, GEOFF P. EYLES, ARTHUR FADDEN, ALAN FARNELL, ANTHONY FITZSIMON, ROBERT G. GLOVER, JOHN HOPKINS, IAN HOUGHTON, MARK JAGER, STEVEN JAY, CAMERON JEFFS, GEOFF JENSEN, MARIE McCARTHY, MALCOLM McKAY, JOE MANRICKS, MARK METCALFE, ROBERT PENNICOTT, ALLAN PERRY, CRAIG PHILP, PETER ROBERTS, PAUL SHANLEY, G. SWANSON, ALEX TEA, NEIL THOMPSON, WILLIAM VICKERS, G. WALSH, TREVOR WENZEL, BETH WILLIAMS, IAIN YOUNG

FOURTH RESPONDENTSJUDGES: FRENCH, SACKVILLE & RD NICHOLSON JJDATE OF ORDER:

5 DECEMBER 2002

WHERE MADE:

SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Declarations 5 and 6 made by the primary Judge on 21 March 2002 be set aside.

3. In lieu thereof it be declared that:

A. The respondents were not entitled to remove from the various premises any of the material in electronic form:

(a) downloaded at the first applicant's premises at 240 Margaret Street, Brisbane and 63 Neil Street, Toowoomba and at the premises of Bradley Fibreglass at Brendale onto Australian Federal Police storage devices;

(b) contained on tapes and cartridges belonging to the occupiers of the premises of the first applicants at 63 Neil Street, Toowoomba and of Gessner Industries at Toowoomba; or

(c) contained on floppy disks.

B. The respondents are not entitled to examine or process any of the material in electronic form to which the preceding Declaration applies in order to determine whether any of it is information that can be seized under the relevant warrant.

4. The cross-appeal be dismissed.

5. There be liberty to apply by written submission within 21 daysas to costs and any further ancillary orders.

6. There be liberty to the non-appellant applicants to apply by written submission within 21 days as to the costs of the proceedings before the learned primary judge on the basis that, if any if them does so, it will be joined as an appellant, with its consent, or otherwise as a respondent.

Note: Settlement and entry of orders is dealt with in Order 36 ofthe Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIAQUEENSLAND DISTRICT REGISTRY Q50 OF

2002ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: STEVEN IRVINE HART

APPELLANTAND: COMMISSIONER, AUSTRALIAN FEDERAL POLICE

FIRST RESPONDENT

MICHAEL JOHN MORRIS

SECOND RESPONDENT

WILLIAM JOSEPH McKAY

THIRD RESPONDENT

HENRY ALBIEZ, I. BARTLEY, DENICE BIRD, JOHN BROWN, MICHAEL BUTCHER, IVOR CHALMERS, RON C. CRAMP, PAUL DELANY, GEOFF P. EYLES, ARTHUR FADDEN, ALAN FARNELL, ANTHONY FITZSIMON, ROBERT G. GLOVER, JOHN HOPKINS, IAN HOUGHTON, MARK JAGER, STEVEN JAY, CAMERON JEFFS, GEOFF JENSEN, MARIE McCARTHY, MALCOLM McKAY, JOE MANRICKS, MARK METCALFE, ROBERT PENNICOTT, ALLAN PERRY, CRAIG PHILP, PETER ROBERTS, PAUL SHANLEY, G. SWANSON, ALEX TEA, NEIL THOMPSON, WILLIAM VICKERS, G. WALSH, TREVOR WENZEL, BETH WILLIAMS, IAIN YOUNG

FOURTH RESPONDENTSJUDGES:

FRENCH, SACKVILLE & NICHOLSON JJ

DATE: 5 DECEMBER 2002PLACE: SYDNEY (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 The Harts group of companies, of which Harts Australia Ltd is holding company, was involved, in the 1990s, in the provision of accounting and tax advisory services. Steven Hart was a director of Harts Australia Ltd in 1996. On or about 6 September 1996, a number of search warrants in similar form were issued under the Crimes Act 1914 (Cth) ("Crimes Act"), authorising the search and seizure of documents at the group's offices including its head office at 240 Margaret Street, Brisbane. The warrants were executed on 9 and 10 September 1996. Many documents were seized; 1,167 "items" were recorded in the seizure records of the Australian Federal Police. Within the 1,167 "items" recorded, 9,156 "documents" were identified as hard copy documents. These in turn comprised 97,116 individual pages. The electronic material seized was equivalent to about 260,000 A4 pages.

2 The search warrants were issued in aid of an investigation by the Australian Federal Police ("AFP") at the behest of the Australian Taxation Office ("ATO") into a range of suspected offences under the Crimes Act. The suspected offences concerned taxevasion involving corporations and individuals providing accounting services through the "Harts group" and certain of their clients.

3 The officers executing the warrants also purported to seize, under the authority of the warrants, material in the form of electronically stored information which was downloaded from computers at the premises searched onto storage devices - presumably disks - brought to the premises by the executing officers. These storage devices were then taken from the premisesfor subsequent examination. So, too, were some tapes, cartridges and floppy disks found on the premises. At the time, this action was treated by the officers as a seizure under the warrants. The respondents subsequently contended that the copying of the material and removal of the copied material from the premises, together with the removal of the tapes, cartridges and disks found on the premises, was authorised by a section of the Crimes

Act which provides for pre-seizure examination of material away from the premises if it is impracticable to examine it there.

4 Each of the search warrants recited that the issuing officer was satisfied that there were reasonable grounds for suspecting that there was "evidential material" at specified premises which satisfied each of three conditions. The first condition required that the material comprise "things", being originals or copies, including those "stored on magnetic or electric [sic] storage medium", of any one of seventeen categories of material. The second condition required that the things relate to any one or more of a large number of listed persons or organisations. The third condition required that there be reasonable grounds to suspect that the things afforded evidence as to the commission offour specified offences against the Commonwealth.

5 The validity and execution of the warrants were challenged in proceedings commenced in 1996 by five applicants, only one of whom has appealed from the decision of the primary Judge. The challenge to the formal validity of the warrants was heard as a separate question and dismissed: Harts Australia Ltd v Commissioner, Australian Federal Police (1996) 141 ALR 493 ("Harts v AFP (1996)"); and onappeal Harts Australia Ltd v Australian Federal Police (1997) 75 FCR 145 ("Harts v AFP (1997)"). By an amended application, the applicantsthereafter challenged the execution of the warrants on various grounds. The matter came on for hearing before Drummond J. On 21 March 2002, the primary Judge made declarations and other orders: Harts Australia Ltd v Commissioner, Australian Federal Police [2002] FCA245; (2002) 49 ATR 427 ("Harts v AFP (2002)"). Two of these are the subject of the present appeal and cross-appeal. The relevant declarations are based on the primary Judge's construction of twoprovisions of the Crimes Act in the form it took at the time of therelevant events. The first is the pre-seizure examination, removal and seizure provision, s 3K. The second is s 3L, which relates to the use of electronic equipment at warrant premises and the copying of information onto storage devices brought onto the premises by the executing officer. (We shall refer to the legislation as though it is still in force.)

6 Broadly stated, s 3K authorises, inter alia, the pre-seizure removal and examination of "things found at the premises" where asearch warrant is executed. The power of removal arises where it is not practicable to examine or process the things at the warrant premises (s 3K(2)(a)). It is not a condition of that power that the executing officers believe or suspect on reasonable grounds or otherwise that the things constitute or contain "evidential material" within the meaning of s 3C(1) of the Act. Section 3L, on the other hand, is an examination and seizure provision. It authorises the use of electronic equipment found at the warrant premises in order to determine whether evidential material is accessible by so doing. If an officer finds that evidential material is accessible by operating the equipment, then the equipment and associated disks, tapes or other storage devices may be seized. Alternatively, the equipmentmay be used to print out the relevant material in documentary form which may be seized, or to copy it to another disk, tape or storage device which may then be taken from the premises. That taking completes the execution of the warrant in relation to the evidential material so copied. Seizure is not applicable in such a case.

7 As the case was argued the appellant attacked only two of the declarations made by the primary Judge. The declarations are in the following terms:

"THE COURT:

...

5. Declares that the respondents were entitled, pursuant to s 3K(2) [of the Crimes Act], to remove from the various premises the entirety of the material in electronic form:

(a) downloaded at the first applicants' premises at 240 Margaret Street, Brisbane and 63 Neil Street, Toowoomba and at the premises of Bradley Fibreglass at Brendale on to Australian Federal Police storage devices;

(b) contained on tapes and cartridges belonging to the occupiers of the premises of the first applicants at 63 Neil Street, Toowoomba and of Gessner Industries at Toowoomba;

(c) contained on floppy disks....

6. Declares that the first and second respondents still remain entitled to examine or process all the material in electronic form to which par 5 applies in order to determine whether any of it is information that can be seized under the relevant warrant provided they first comply with s 3K(2) [of the Crimes Act] in relation to each lot of that material."

We refer to these as "the Declarations" and to each of them, respectively, as "Declaration 5" and "Declaration 6".

8 The references to the "first applicants' premises" in Declaration 5 are to two places of business at which Harts Pty Ltd, a member of the Harts group, carried on its accounting practice. The references to Bradley Fibreglass and Gessner Industries appear to be to clients of the accounting practice whose premises were searched pursuant to the warrants. The references to the first and second respondents are to the Commissioner, AFP ("the Commissioner") and to the AFP executing officer in relation to the warrants ("Mr Morris"), respectively.

9 Declaration 5 reflected findings by the primary Judge that s 3K authorised the downloading, at the warrant premises, of material in electronic form onto storage devices provided by the AFP, the removal of those devices to another place for examination by police and the removal of tapes, cartridges and floppy disks found on the premises. This was notwithstanding thatthe executing officers thought they were effecting a "seizure" ofthat material. His Honour found (at 457) that the executing officers could not rely upon s 3L to justify the downloading and copying of the relevant material. Declaration 6 was to the effectthat the officers remained entitled to examine or process the material so removed in order to determine whether it was susceptible to seizure under the relevant warrant, subject to informing the occupier of the warrant premises of the time at

which the examination or processing would be carried out and allowing the occupier or his or her representative to be present.

10 In our opinion, for the reasons which follow, s 3K has no application to the downloading of electronic information onto disks, tapes or other storage devices brought to the premises by the executing officers. That is because the section contemplates off-premises examination of things taken from the premises with aview to their seizure. The use of storage devices brought on to the premises by the police to download information does not involve the "seizure" of anything. Nor can it be said that information in electronic form downloaded or copied onto such devices is "moved to another place", which is the central term descriptive of action taken under the section. In any event, the time limited for effecting a seizure (if that process were applicable) under s 3K expired when the warrant ceased to be in force, which in this case was for the maximum period of seven days from the date of issue, namely 6 September 1996. If the tapes, cartridges and floppy disks, now said to have been removedfor examination and possible seizure under s 3K, were validly removed, the warrant ceased to be in force after the expiry of seven days from its issue. Accordingly, the seizure of that material was no longer authorised under the Crimes Act. Moreover, the purported seizure of the material cannot now be treated as a removal under s 3K.

11 The respondents to the appeal were the respondents in the proceedings determined by the primary Judge. They have filed a cross-appeal. The cross-appeal seeks declarations in substitutionfor the Declarations, if this Court holds that the Declarations should be set aside. The declarations sought by the respondents ("the Alternative Declarations") are as follows:

"(i) Declare that Darren Michael, an officer of the Australian Federal Police, was entitled,pursuant to s 3L(2)(c)(i) [of the Crimes Act] to copy the entirety of the material in electronic form downloaded at the First Applicants' premises at 240 Margaret Street, Brisbane and 63 Neil Street, Toowoomba on to Australian Federal Police storage devices;

(ii) Declare that Alan Farnell, an officer of the Australian Federal Police, was entitled, pursuant to s 3L(2)(c)(i) [of the Crimes Act] to copy the entirety of the material in electronic form downloaded at the premises of Bradley Fibreglass at Brendale on to Australian Federal Police storage devices;

(iii) Declare that the said Darren Michael and Alan Farnell were further entitled, pursuant to s 3(2)(c)(i) [of the Crimes Act] totake the said Australian Federal Police storage devices from the respective premises at which the material in electronic form was downloaded on to them."

12 We would also dismiss the cross-appeal, which invoked s 3L to justify the downloading and taking of the electronic information stored at the premises. The necessary condition for the application of that section, which required the relevant officersto consider whether there was evidential material in the information downloaded, was not satisfied. Accordingly, the Alternative Declarations should not be made.

THE ISSUES ON THE APPEAL

13 The appeal gives rise to three principal issues:

(i) Did s 3K(2) of the Crimes Act authorise the officers executing the search warrants to take copies of material stored in electronic form at the warrant premises subject to the search andto remove the copies in order to enable examination or processingof the material to take place elsewhere?

(ii) Was the primary Judge in error in concluding that s 3K permitted a reasonable time for undertaking the examination orprocessing of the copied material and the tapes, cartridges and disks taken from the warrant premises; that the time had not elapsed; and that the Commissioner and Mr Morris were therefore still entitled to examine or process the material and devices, provided they complied with the requirements of s 3K(3) of the Crimes Act?

(iii) If the answer to (i) is no, did s 3L(2) of the Crimes Act, in the circumstances of this case, authorise the officers to copy the material stored in electronic form in the computer systems atthe warrant premises onto storage devices and take the devices from the premises?

14 The argument on the appeal implicitly accepted the correctnessof two propositions. The first was that if the purported seizure of tapes, discs and cartridges for later examination were invalid(because of the failure to consider whether they contained evidential material), it was subsequently open to the respondentsto treat that action as a removal of the articles for pre-seizureexamination under s 3K. The second proposition which was treated as common ground was that an officer removing articles for pre-seizure examination under s 3K has, by implication from the section, a reasonable time to carry out that task. We came to theview, after judgment was reserved, that the two propositions accepted by the parties might not be correct. As those matters were not argued on the appeal, the parties were invited, prior to judgment, to make written submissions about them. Written submissions were received from the respondents on 25 November 2002 and from the appellant on 29 November 2002.

15 Neither the notice of appeal nor the notice of cross-appeal joins any of the applicants in the proceedings at first instance as a party to the appeal other than Mr Hart himself. We were not told the reasons for this apparent omission. The parties were also invited to address this issue before orders were made disposing of the appeal. We are of the view, in the light of those submissions, that joinder is not necessary unless any non-appellant applicant wishes to address the question of the costs order made by the primary Judge. In that event, the applicant making a submission on costs will be joined as a party to the appeal.

THE LEGISLATION

16 The relevant legislation is contained in Part 1AA of the Crimes Act as it stood at the dates the search warrants were issued and executed. The legislation has since been amended, in

particular by the Cybercrime Act 2001 (Cth) ("Cybercrime Act"). The latest amendments have repealed a number of the provisions that were the subject of debate on the appeal, including ss 3K(2), 3L(1) and 3L(2)(c), and amended others. As noted, we refer in this judgment to the legislation relevant to the present appeal as though it is still in force.

17 Part 1AA of the Crimes Act was incorporated into the legislationby the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) ("Crimes Amendment Act 1994"). The scheme of Part 1AA was explained by the Full Court in Harts v AFP (1997). As the Full Court there observed (at 147-148), the 1994 amendments had their origins in the fourth interim report of the committee established to review Commonwealth criminal law: Review of Commonwealth Criminal Law (Fourth Interim Report, November 1990) ("Gibbs Report"). Their Honours considered (at 148) that the Gibbs Report and the pre-existing law form an essential part of the context relevant to the interpretation of Part 1AA.

18 Section 3E of the Crimes Act authorises the issue of a warrant to search premises by an "issuing officer", if the officer is satisfied that there are reasonable grounds for suspecting that there is any "evidential material" at the premises. Section 3E(5) provides that the issuing officer must state in the warrant, inter alia, the offence to which the warrant relates (s 3E(5)(a)) and the kinds of evidential material that are to be searched for under the warrant (s 3E(5)(c)). In addition, the officer must state the period for which the warrant remains in force, which must not be more than seven days (s 3E(5)(e)).

19 Section 3C(1) defines "evidential material" to mean

"a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form".

The expression "thing relevant to an indictable offence" is defined in s 3(1) as follows:

"(a) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed; or

(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence."

The expression "thing relevant to a summary offence" is defined in similar terms.

20 Section 3F(1) of the Crimes Act provides that a warrant that is in force in relation to premises authorises the executing officer:

"(a) to enter the warrant premises...; and,

...

(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises;

...".

21 Section 3K is headed "Use of equipment to examine or process things". It provides as follows:

"(1) The executing officer or constable assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under the warrant.

(2) If:

(a) it is not practicable to examine or process the things at the warrant premises; or

(b) the occupier of the premises consents in writing;

the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.

(3) If things are moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:

(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

(b) allow the occupier or his or her representative to be present during the examination or processing.

(4) The executing officer or a constable assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized underthe warrant if the executing officer or constable believes on reasonable grounds that:

(a) the equipment is suitable for the examination or processing; and

(b) the examination or processing can be carried out without damage to the equipment or the thing."

22 Section 3L is headed "Use of electronic equipment at premises". It is relevantly in these terms:

"(1) The executing officer or a constable assisting may operate electronic equipment at the premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

(2) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated device; or

(b) if the material can, by using facilities at the premises, be put in documentary form - operate the facilities to put the material in that form and seize the documents so produced; or

(c) if the material can be transferred to a disk, tape or other storage device that:

(i) is brought to the premises; or

(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

operate the equipment or other facilities to copy the material tothe storage device and take the storage device from the premises.

(3) A constable may seize equipment under paragraph (2)(a) only if:

(a) it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or

(b) possession by the occupier of the equipment could constitute an offence."

23 Section 3N provides as follows:

"(1) Subject to subsection (2), if a constable seizes, under a warrant relating to premises:

(a) a document, film, computer file or other thing that can be readily copied; or

(b) a storage device the information in which can be readily copied;

the constable must, if requested to do so by the occupier of the premises or another person who apparently represents the occupierand who is present when the warrant is executed, give a copy of

the thing or the information to that person as soon as practicable after the seizure.

(2) Subsection (1) does not apply if:

(a) the thing that has been seized was seized under paragraph 3L(2)(b) or (c); or

(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence".

24 Section 3Q(1) deals with receipts for things seized:

"(1) If a thing is seized under a warrant or moved under subsection 3K(2), the executing officer or a constable assisting must provide a receipt for the thing."

BACKGROUND

25 As the primary Judge remarked in an interlocutory judgment (Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175; (2001) 65 ALD 463, ("Harts v AFT (2001)"), at 463, these proceedings have an unfortunate history. A brief account is necessary to appreciate the issues presented on the appeal.

26 The proceedings were commenced in September 1996, very shortlyafter the search warrants had been executed. The first applicantsin the proceedings were Harts Australia Ltd, the holding company of the Harts group, and Harts Pty Ltd, which carried on its accounting practice at the premises identified in the Declarations. The second applicants were Astion Pty Ltd ("Astion"), Mr Hart (the appellant) and Mr Adcock. Mr Hart and MrAdcock were both directors of Harts Pty Ltd and Astion. Astion's business included providing accounting and tax advisory services.

27 The respondents initially joined to the proceedings were the Commissioner, Mr Morris (the executing officer) and the third respondent, the magistrate who issued the warrants.

28 At an urgent hearing held on 11 September 1996, undertakings were given by the Commissioner and Mr Morris, restricting their access to the very large mass of documents seized or removed

under the warrants. At an early stage in the proceedings, the applicants indicated that they wished to challenge the lawfulnessof the seizure or removal of many thousands of documents. It was thought that this process might require the Court to make a very large number of individual determinations in relation to particular documents seized.

29 In these circumstances, it was apparently agreed that the primary Judge should hear argument limited to certain issues going to the formal validity of the warrants. In the event, his Honour rejected the applicants' attacks: Harts v AFP (1996). In May 1997, the Full Court dismissed the appeal: Harts v AFP (1997).

30 In the meantime, the parties agreed on a cataloguing process designed to ensure that preparation for a final hearing would continue. In the course of this process, some agreement was reached between the parties as to the status of particular documents. Nonetheless, a very large number of documents remainedin dispute, including sixty-six disks containing the equivalent of about 200,000 documents.

31 The cataloguing process continued slowly and in November 1998 the primary Judge made directions requiring the parties to confine the issues by reference to a sample of documents. This seems not to have achieved the desired result. Ultimately a hearing was fixed for 23 March 2000.

32 At the hearing, it emerged that the applicants intended to abandon many of their arguments, but wished to challenge the decisions to seize documents made by sixty-six AFP and ATO officers who had assisted Mr Morris in executing the warrants. The case the applicants intended to put was described by the primary Judge in Harts v AFP (2001), at 466:

"as showing in an over-arching way that the [sixty-six officers] were all involved in an indiscriminate or `negative search' process in determining what documents to seize when they purported to assist in executing the warrant".

The applicants accepted that if this case was to be run, the assisting officers would have to be joined as parties. In

consequence of the applicants' change of approach, the hearing was adjourned.

33 In Harts v AFP (2001), the primary Judge gave his reasons for granting leave to the applicants to join as respondents to the proceedings such of the AFP and ATO officers as could be served within a specified period. Those officers (thirty-six in number) became the fourth respondents.

34 The adjourned hearing finally got under way on 9 July 2001. The applicants relied on an amended application that had been filed on 26 March 2001. The relief sought by them included ordersrestraining the Commissioner and Mr Morris from copying "any things" removed from the applicants' premises and an order quashing the decision of the second respondent to execute the warrant. The applicants also sought an order for the return of all things seized to the persons from whom they had been seized.

35 The hearing continued for ten days. His Honour delivered judgment on 13 March 2002. In that judgment, he indicated the declarations and orders he would make. As noted, formal orders, including the Declarations, were made on 21 March 2002. In a second judgment, delivered on 21 March 2002, the primary Judge addressed the question of costs and ordered that "each party should bear their own costs".

36 It should be noted that by the time the hearing was conducted Mr Adcock (one of the second applicants) had become bankrupt. HisHonour stated that, regardless of whether the proceedings instituted by Mr Adcock had been stayed by virtue of s 60 of the Bankruptcy Act 1966 (Cth), he had not been asked to make any orders in Mr Adcock's favour in the proceedings.

THE PRIMARY JUDGMENT

37 The primary Judge in Harts v AFP (2002) treated the amended application for review as having been made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). He noted that the application, in terms, sought judicial review of the many decisions that had been made to seize documents and that

the applicants had once intended to challenge the lawfulness of the taking of every one of the documents by examining the conductof the particular officer concerned. However, as had been discussed in Harts v AFP (2001), the applicants now sought (at 431)

"to show that the whole operation involving the execution of all the warrants [was] fundamentally flawed because the executing officers and [those] assisting them can be seen to have had no regard to condition 3 of each of the warrants [requiring that there be reasonable grounds for suspecting that the material would afford evidence as to the commission of one or other of four specified offences]".

If the alleged flaw was established, it would demonstrate that there had been an improper exercise of power, since the decision-maker had failed to take a relevant consideration into account (ADJR Act, ss 5(1)(e), 5(2)(b)).

38 His Honour analysed the applicants' contention in considerabledetail. He concluded that the applicants' challenge based on the alleged systemic failure had been made out in relation to certaincategories of documents taken pursuant to the search warrants, but otherwise did not succeed. Since the appeal does not touch his Honour's reasoning on this point or the orders made in consequence of the reasoning, we need say no more about this aspect of the case.

39 In the latter part of his judgment, the primary Judge addressed the submissions made in relation to material in electronic form taken under the warrants. His Honour identified (at 451) two relevant classes of such material:

"98.1 Documents stored in electronic form at various of the warrant premises which were downloaded, ie, copied, by AFP officers on to AFP tapes and disks brought to the premises by AFP officers. Only these copies were taken from the premises;

98.2 Disks, tapes and personal computers belonging to the occupiers of the warrant premises which were removed by the executing officers."

40 The primary Judge made a number of findings (at 451-452). Material within the first class of documents was taken by an AFP

officer, Mr Michael, from Harts' head office at Margaret Street, Brisbane and the premises of Joe Bradley Fibreglass. Another AFP officer, Mr Farnell, took material within the first class from Harts' office at Neal Street, Toowoomba. Mr Michael decided to copy, by downloading the material onto his equipment, the whole of the information on the servers in the computer server room at the Margaret Street premises. He did so because he formed the view that the system contained material within the terms of the search warrant and because he considered that it was not practicable to search individually for documents on the premises.Mr Michael copied the whole of the information stored in the computer system at Joe Bradley Fibreglass, for similar reasons. Mr Farnell "similarly copied the entirety of the material at Harts' Toowoomba office".

41 The material within the second class of documents included Gessner Industries' own back-up tapes, which Mr Farnell had seized when his attempt to copy material proved too slow. The second class also included floppy disks and data tape cartridges taken from Harts' offices and the premises of various clients. The AFP retained all of this material. Subject to some minor exceptions, none of the material in the second class had been examined for the purpose of identifying what, if any, documents within the warrant were contained in it.

42 The primary Judge pointed out that the respondents initially relied only on s 3L(2)(c)(i) of the Crimes Act to justify the taking of the material copied or downloaded at the various premises. The applicants disputed the respondents' claim, on the ground that the reference in s 3L(2)(c) to "material" is to be construed as meaning "evidential material". On this reading, s 3L(2)(c)(i) permits the relevant officer to copy only evidential material (that is, material relevant to an indictable or summary offence which is specified in the warrant in accordance with s 3E(5)(c) and the seizure of which is authorised by s 3F(1)(c)) and not other material.

43 The primary Judge accepted the applicants' submission as to the construction of s 3L(2)(c). In his view, it was difficult to see why Parliament would have intended to confer the wide

authority for which the respondents contended. Reading s 3L(2)(c) as justifying such a broad intrusion into the rights of the subject was inconsistent with the settled approach to the construction of the statutes governing search warrants. Moreover,the narrower reading did no violence to the language of s 3L(2) and was supported by the approach taken in the Gibbs Report. His Honour explained the purpose of s 3L as follows (at 456-457):

"The draftsman of Div 2 of Pt 1AA, in taking up the Committee's recommendations, was,I think, concerned to permit the executing officer to seize both `evidential material' and non-evidential material found stored together in electronic form, but only where it is impracticable to copy just the `evidential material'. Section 3L(2)(b) and (c) are, in my opinion, confined to giving authority to the executing officer to preserve under his or her control the `evidential material', and only that material, that he or she has been able to access by operating electronic equipment at the premises. If that `evidential material' can, by using facilities at the premises, be put into documentary form, that can be done and the hard copy seized. If the `evidential material' can be transferred to a disk, tape or other storage device that the executing officer brings to the premises, that officer can operate the equipment to copy that `evidential material' to that storage device and take it from the premises".

It followed that the respondents could not rely on s 3L(2)(c)(i) to justify the downloading or copying of the mass of materialtaken by Mr Michael and Mr Farnell in the circumstances previously described. His Honour recognised that this conclusion was contrary to the reasoning of Hely J in Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175, at 236-237, but he declined to follow that reasoning.

44 Next, the primary Judge addressed an alternative contention the respondents advanced for the first time in their supplementary submissions. They argued that the downloading of material in electronic form was authorised by s 3K(2) of the Crimes Act. According to the respondents, the material stored in electronic form on disks or in computers was a "thing" which could be moved to another place for examination and processing, provided that either of the two conditions stated in s 3K(2)(a) had been satisfied.

45 The primary Judge found (at 458-459), as a matter of fact, that it was not practicable to examine any of the electronic material in the first class at the warrant premises to determine what "specific pieces of information" contained in that material were within the warrant. He also found that it was impracticable to examine, at the various warrant premises, the second class of material consisting of the back-up tapes taken from Gessner Industries' premises and the data tape cartridges taken from Harts' Toowoomba premises. Accordingly, his Honour concluded (at 459) that

"[t]he pre-condition contained in s 3K(2)(a) to the lawful removal of all this electronic material for examination or processing later on away from the premises was satisfied".

The primary Judge made a similar finding with respect to floppy disks taken from premises other than those at which Mr Michael was present. None of these findings of fact was challenged on theappeal.

46 The primary Judge held that the respondents could rely on s 3K to authorise what was done by Mr Michael and Mr Farnell at thevarious premises and by the other officers who took floppy disks from other premises, notwithstanding that the respondents had notinvoked s 3K at the time as a source of power to remove the material. In other words, the respondents were not precluded frominvoking s 3K by the fact that the officers considered that they were seizing the electronic material under the various warrants pursuant to s 3F(1)(c) of the Crimes Act, rather than removing it pursuant to the power conferred by s 3K(2). As we have noted, the argument proceeded on the assumption that this holding was correct..

47 The primary Judge further held that, as a matter of construction, s 3K(2) authorised the downloading and copying and removal in copy form of the mass of material located at the Margaret Street, Joe Bradley Fibreglass and Toowoomba premises. His Honour took the view that the term "things" in s 3K extends not merely to physical objects, such as a disk or tape on which information is stored in electronic form, but also to the information so stored. This was supported by the definition of

"evidential material", which includes "a thing in electronic form" and the terms of s 3N(1)(a), which envisages that a single computer file is capable of seizure under a warrant. His Honour thought (at 457) that the

"only way a computer file as such can be seized under a warrant is by the information comprising that file being taken by being downloaded or copied (save only in the fortuitous situation where it is the only file currently on the particular storage device)."

48 His Honour pointed out that the expression "processing" in s 3K(2) had to involve an activity different from examination. He thought that processing involves doing something to "the thing" to permit an examination to be made in order to determine whetherthe thing will afford evidence as to the commission of an offence. His Honour continued (at 458):

"Processing of electronically stored information is necessary to enable it to be examinedby a human observer. Section 3K(2)(a), in my opinion, empowers not only the electronic storage devices but also the information contained therein to be moved (as a thing separate from its storage device) from the premises to another place for examination if it is not practicable to examine or process the storage devices or the information storedtherein at the warrant premises. The only way such information can be so moved is by copying it to another storage device and removing that device with the copied information."

49 Finally, the primary Judge considered whether the AFP could retain the material for further examination in accordance with s 3K(2), notwithstanding that over four years had elapsed from the time the material had been copied and the cartridges and floppy disks taken. His Honour was prepared to imply into s 3K(2) an obligation to conduct the examination within a reasonable time after the taking. As we have noted, this holding was also not challenged on the appeal, but the Court drew the issue to the attention of the parties.

50 The primary Judge found, as a matter of fact, that a reasonable time had not elapsed. He recounted the history of the proceedings, including the cataloguing process and the difficulties of securing agreement on a sampling procedure, and concluded as follows (at 462-463):

"In my opinion, when regard is had to the course of the litigation subsequent to 10 September 1996, which took the shape it did because the applicants as much as the respondents were concerned to avoid litigating the lawfulness of the seizure of every one of the hundreds of thousands of documents in both hard copy and electronic form, and because the applicants were understandably anxious to prevent the respondents from being able to make use of the documents seized in their investigation, it can be said that, in the special circumstances of this case, the reasonable time allowed by s 3K(3), within which the examination or processing of the material seized in electronic form and removed from the various warrant premises must be undertaken, has not yet passed. Such a time will not, I think, elapse until the further period necessary to allow the prompt evaluation of the electronic material held by the respondents passes."

51 The primary Judge did not elaborate on the form of the Declarations. Declaration 5, however, gives effect to his view that s 3K(2), properly construed, permitted the downloading and removal from the warrant premises of material stored in electronic form (par (a)) and the removal from the premises of tapes, cartridges and floppy disks found there (pars (b) and (c)). Paragraphs (b) and (c) are framed in terms of removal of the material in electronic form "contained on" the tapes, cartridges and floppy disks, perhaps to reflect his Honour's viewthat electronically stored confirmation can be "moved" for the purposes of s 3K(2) of the Crimes Act. Declaration 6 gives effect tothe primary Judge's finding that a reasonable time had not elapsed for the purposes of s 3K(2) and that, accordingly, the material in electronic form retained by the Commissioner and Mr Morris could still be processed and examined.

52 Although his Honour did not expressly identify the source of power to make the Declarations, presumably they were made pursuant to s 16(1)(c) of the ADJR Act which gives the Court power,on an application for an order of review in respect of a decision, to make "an order declaring the rights of the parties in respect of any matter to which the decision relates".

SUBMISSIONS ON THE APPEAL

THE APPELLANT'S CONTENTIONS

53 The appellant contended that the primary Judge had erred in his construction of s 3K(2) of the Crimes Act. Mr McMurdo QC, who appeared with Mr Bowden for the appellant, submitted that a distinction had to be drawn between the material in electronic form that had been downloaded (Declaration 5(a)) and the tapes, cartridges and floppy disks that had been removed (Declaration 5(b) and (c)). The distinction was between things that were moveable (tapes, cartridges and floppy disks) and material in electronic form that had not been moved, but had been copied ontostorage devices.

54 Mr McMurdo did not dispute that material stored in electronic form is capable of being a "thing" for the purposes of s 3K(2). But s 3K(2) permits things to be "moved to another place" for examination or processing. Accordingly, so he argued, for an act to be authorised by s 3K(2) it must result in something at the warrant premises being moved to another place. In the presentcase, the information stored in electronic form was simply not moved from the warrant premises: it was copied and the storage devices onto which it was copied were moved. To the extent that information in electronic form was located at the warrant premises, it remained there after the downloading. It had never been moved.

55 The appellant derived support from this argument from the terms of s 3L(2). Mr McMurdo pointed out that s 3L(2) distinguishes between the seizure of a disk, tape or associated device on which electronic material is stored and the material itself. The subsection contemplates that the former can be seized, but that the latter can only be copied onto a storage device. Thus, so he argued, the legislation recognises that evidential material stored in electronic form is incapable of being seized by downloading and is incapable of being "moved" separately from the storage device itself.

56 Next, the appellant submitted that the primary Judge had erredin concluding that, if the respondents could rely on s 3K(2), a reasonable time for the examination had not yet elapsed. Mr McMurdo pointed out that, insofar as the downloaded information referred to in Declaration 5(a) was concerned, the reasonableness

issue arose only if the appellant's argument as to the construction of s 3K(2) was rejected. However, the reasonablenessargument had to be addressed in any event, since the material covered by Declaration 5(b) and (c) was not material in electronic form that had been downloaded, but material that had been contained on tapes, cartridges and floppy disks. Mr McMurdo thus appeared to accept that Declaration 5(b) and (c) could be upheld even if this Court adopted a different construction of s 3K(2) from that accepted by the primary Judge.

57 Mr McMurdo submitted that the primary Judge, in making his finding on the question of reasonableness, had failed to take into account the respondents' late change of approach. It was notuntil the end of the trial that they had placed any reliance on s3K. Had they raised that issue in a timely fashion, the cataloguing process could and should have been used to enable theelectronically stored material to be examined and processed in accordance with s 3K. According to Mr McMurdo, the respondents' years of neglect could not be excused by their failure to invoke the relevant section until the very heel of the hunt.

58 On the cross-appeal, the appellant supported the primary Judge's conclusion that s 3L, on its proper construction, does not permit the downloading of material that is not "evidential material".

59 The appellant also argued that, on the primary Judge's findings, the precondition for the exercise of the powers conferred by s 3L(2) had not been satisfied. As Mr McMurdo pointed out, s 3L(2) applies only where the officer, after operating the equipment, finds that evidential material is accessible by doing so. He submitted that the findings made by the primary Judge were to the effect that the officers had not turned their minds to whether the third condition of the warrant had been satisfied. In these circumstances the officers could nothave found, after operating electronic equipment at the premises,that evidential material was accessible.

THE RESPONDENTS' CONTENTIONS

60 The respondents essentially supported the primary Judge's reasoning on the construction of s 3K(2) of the Crimes Act. Mr Gotterson QC, who appeared with Mr Boddice SC for the respondents, submitted that electronically stored material, as opposed to the storage device itself, in practice can only be "moved" by copying it to another storage device and removing thatdevice from the premises. He contended that s 3N(1)reinforced this construction of s 3K(2), since it plainly contemplates that a computer file can be seized and, therefore, moved.

61 The respondents also supported the primary Judge's finding that a reasonable time for examination or processing the materialin electronic form, for the purposes of s 3K(3), had not elapsed.Mr Gotterson submitted that the primary Judge had paid close regard to the history of the proceedings and, in particular, had taken the respondents' change of approach into account in making his finding.

62 Mr Gotterson noted that it was necessary for the Court to address the questions raised by the cross-appeal only if it held that the primary Judge had erred in both his construction of s 3K(2) of the Crimes Act and in his conclusion that the Commissionerand Mr Morris remained entitled to examine or process the material downloaded at the warrant premises. The respondents submitted that s 3L(2) must be read together with s 3L(3). The evident purpose of s 3L(3)(a) is to encourage action under s 3L(2)(b) or (c) if it is practicable to do so. Accordingly, so they argued, s 3L(2)(b) and (c) should be given an expansive interpretation. Thus the word "material" in s 3L(2)(b) and (c) should be interpreted as meaning all material stored in the equipment or storage device which would be seizable under s 3L(2)(a), provided that the preconditions in s 3L(3) are satisfied.

63 Finally, the respondents submitted that the precondition to s 3L(2) was capable of being satisfied where the relevant officer was informed by the occupier of the warrant premises, or by a representative of the occupier that the material stored in electronic form was relevant to the commission of an indictable offence. According to Mr Gotterson, that is what happened in the present case.

CONSTRUCTION OF STATUTORY POWERS OF SEARCH AND SEIZURE

64 The construction of statutes authorising the search of premises and the seizure of things from them begins with the ordinary meaning of the words considered according to their context and the legislative purpose. This reflects the primary object of all statutory construction which, according to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR355, at 381, per McHugh, Gummow, Kirby and Hayne JJ, is:

"to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute."

The importance of purpose and policy was emphasised in that case by reference to the observation of Dixon CJ in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390, at 397:

"the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed."

65 The purpose of search and seizure provisions is to provide forthe gathering of information to determine whether offences have been committed and to facilitate proof of them: Rogers v Moore [1992] FCA 602;(1992) 39 FCR 201, at 217, per French J. Recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined. Remaining ambiguity or doubt whether of meaning or application will, in accordance with authority, be resolved in favour of the rights and freedoms of the subject.

66 There is a significant emphasis in the case law on the need toapply a "strict" construction to such provisions. This is because, as a general rule, the search of premises and the seizure of goods therefrom has always been illegal unless authorised by law. The manifestation of that authority has traditionally been in the form of a warrant. As was said in R v Inland Revenue Commissioners; Ex parte Rossminster Ltd [1979] UKHL 5;[1980] AC 952, at 1000, by Lord Wilberforce:

"There is no mystery about the word `warrant': it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal."

A strict approach to the construction of and compliance with statutory provisions authorising the issue of search warrants hasrepeatedly been enjoined by the courts. In George v Rockett [1990] HCA 26; (1990) 170 CLR 104, at 110-111, the High Court said

"in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly andwhich, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strictcompliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation."

Commenting on this passage, the Full Court of the Federal Court in Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473, at481, referred to the requirement of a strict duty of full disclosure of material facts by the informant seeking issue of a warrant as reflecting "the traditional policy of the common law to protect the privacy of individuals against the arbitrary use of the power of entry and search".

67 Where "strict construction" is invoked it is necessary to keepin mind what that term means. In the context of penal statutes itwas said, a long time ago, and yet consistently with contemporarydoctrine (Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132, at 155, per Isaacs J), to reflect nothing more than a requirement that:

" a Court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed."

The invocation of "strict construction" in penal statutes was described by Gibbs J as "perhaps one of last resort": Beckwith v R [1976] HCA 55; (1976) 135 CLR 569, at 576. It should not

distract from the primary object of statutory construction enunciated in Project Blue Sky. The search and seizure provisions of the Crimes Act are not punitive. They are not to be treated as penal provisions. It is more appropriate to see them as subject to the general principles that govern statutory interference withestablished common law rights and freedoms: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, at 304, per O'Connor J; Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, at 18, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, at 437-438, per Mason CJ, Brennan, Gaudron and McHugh JJ.

68 Notwithstanding these general considerations, effect must be given to the importance attached by the legislature to the use ofsearch warrants as an important and legitimate tool in the detection and prosecution of criminal offences. Where the language of the statute authorising their use offers choices between one construction requiring fine legal judgments in the issue and/or execution of warrants and another which is more likely to be consistent with operational realities then the latter construction is generally to be preferred. The need to recognise the operational realities in which warrants are executed was acknowledged by the learned primary Judge, who referred in that connection to Dunesky v Commonwealth (1996) 89 A Crim R 372, at 382-383, per Lockhart J. See also Baker v Campbell [1983] HCA 39; (1985) 153 CLR 52, at 83, per Mason J. The tension between the public and private interests involved in the issue and execution of search warrants was referred to by Lockhart J in Crowley v Murphy [1981] FCA 31; (1981) 52 FLR 123, at141-142(Northrop J agreeing at 132). His Honour cited the observation of Lord Cooper in Lawrie v Muir [1950] SLT 37, at 39-40:

"From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interests of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily

protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protectionis not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods."

See also Trimboli v Onley (No 3) (1981) 56 FLR 321, at 332-333, per Holland J. These remarks relate more to attacks upon the scope ofwarrants and action under them than to the construction of the statutes authorising the issue of such warrants. They nevertheless expose adequately the policy issues and legislative purposes which should inform construction. In particular, there is no requirement that the Court approach that task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power.

SEIZURE AND REMOVAL OF ELECTRONIC INFORMATION

SECTIONS 3K AND 3L

69 The two important provisions in Div 2 of Pt 1AA in issue in this case are ss 3K and 3L. Section 3K authorises pre-seizure examination of things at the premises (s 3K(1) and (4)) and theirpre-seizure removal and examination at another place (s 3K(2) and(3)). It is central to its logic that the removal of things for examination off-premises will not constitute a seizure if done under that section. This distinction is made plain in s 3Qwhich requires receipts for things "seized under a warrant or moved under subsection 3K(2)". Section 3L is of narrower application specifically authorising the use of electronic equipment at the warrant premises to determine whether there is evidential material accessible by so doing (s 3L(1)). It then makes provision for access to such material. The material can be put into documentary form using equipment at the premises and the documentary material then seized (s 3L(2)(b)). Alternatively, it can be "transferred" to a disk, tape or other storage device also

using equipment at the premises. The storage device may then be taken from the premises(s 3L(2)(c)). This "tak[ing]" is not characterised as a seizure. This is because the storage device was either brought to the premises by the executing officer (s 3L(2)(c)(i)) or, if at the premises, its use for that purpose wasagreed to in writing by the occupier (s 3L(2)(c)(ii)). In this respect, s 3L creates a power additional to and not merely ancillary to those created by s 3F. For there is no "seizure" of material copied and taken in this way.

70 Electronic equipment found to contain evidential material may be seized but only if it is not practicable to put the material on it in documentary form or to copy it on to storage devices, orif its continued possession by the occupier could constitute an offence (s 3L(3)). The balance of s 3L, consisting of subs (4) to(9), concerns the securing of equipment at the premises to provide time to get expert assistance to operate it, prescribes the time limit of twenty-four hours for so doing and the process for obtaining an extension of that time.

71 Prior to the enactment of s 3K it was not possible under s 10 of the Crimes Act or the like provisions of other jurisdictions to remove things from the warrant premises with a view to deciding at a later time whether or not to seize them. This limitation flowed from the conditions by which the statute governed the execution of a warrant. It reflected the general principles enunciated by Lord Denning MR in Ghani v Jones [1970] 1 QB 693. His Lordship described it (at 706) as "settled law" that officers entering a house under a warrant or arresting a person with or without warrant for a serious offence were "entitled to take any goods which they [found] in his possession or in his house which they reasonably [believed] to be material evidence in relation tothe crime for which he [was] arrested or for which they [entered]" (at 706). See also R v Inland Revenue Commissioner; Ex parte Rossminster Ltd, at 960, per Eveleigh LJ, and at 1013, per Lord Diplock.

72 It was possible to remove a file, book, bundle or document which was believed on reasonable grounds to contain material of evidentiary value, provided that any necessary sorting process

was carried out with reasonable expedition and that those documents not of evidential value returned reasonably promptly. It was not open to an executing officer to remove materials for later sorting without consideration of whether or not they might contain evidential material: Reynolds v Metropolitan Police Commissioner [1985] QB 881, at 896, per Slade LJ; at 889, per Waller LJ; at 902-903, per Purchas LJ; Allitt v Sullivan [1988] VicRp 65;[1988] VR 621, at 641, per Brooking J; Bartlett v Weir [1994] FCA 1143; (1994) 72 A Crim R 511, at 523, per Beazley J.

73 A warrant could not be used to further a fishing exercise. It could not authorise the seizure of documents for examination in order to determine whether criminal charges should be laid against someone, absent any consideration of how the documents seized were relevant to or could constitute evidence of the commission of a particular offence: Island Way Pty Ltd v Redmond [1990]1 Qd R 431 per Cooper J. In Bartlett v Weir, Beazley J (at 522) held unlawful the seizure and retention of computer disks, purportedly pursuant to a warrant under s 10 of the Crimes Act

"without knowing whether they fell within the terms of the warrant, intending to examine them later, and without having held, at the time of seizure, the requisite reasonable belief that the goods seized might afford evidence of the commission of a crime."

THE GIBBS REPORT

74 The origins of ss 3K and 3L may be seen in the practical problems arising from the limitations on the examination of material flowing from s 10 and the recommendations of the Gibbs Report. The Gibbs Report posed two questions which it described as "very much linked" (par 39.36). The questions were:

1. What should be done by officers executing a search warrant in relation to articles such as undeveloped films, sound and video recorders the contents of which cannot be determined without processing or the use of some apparatus?

2. What provision should be made as to access by an officer executing a search warrant to information recorded on a computer?

75 A Discussion Paper which preceded the Gibbs Report was referred to in formulating its responses to these two questions. In relation to the first, the Committee had expressed a preference for executing officers to be able to examine and process articles on the warrant premises and to bring there any equipment necessary for such examination or processing. Where this was not practicable, it was proposed that the legislature should permit the officer to remove the article requiring examination or testing (Gibbs Report, par 39.26, quoting from theDiscussion Paper). The Gibbs Report concluded (at 39.31), in relation to the first question:

"On balance, the Review Committee has concluded that, having regard to modern technological developments, powers are required for the examination and processing of material found on the premises in the execution of a search warrant. Where it is not practicable to do the examination or processing on the premises, the officer should be empowered to remove the articles to another place, but must inform the occupier of theaddress of that place and afford him or her the opportunity to be present either personally or by representative during the examination or testing. Because the occupiermay prefer that the examination or processing be carried out away from the premises, he or she should be provided with the option to agree in writing to this course. In the event of the person so agreeing, the legislation should provide that the examination or processing might be carried out off the premises, whether or not it is practicable to do iton the premises."

The Committee also expressed the view that officers should be empowered to use equipment already on the premises to carry out examination or processing, provided that the equipment was suitable for that purpose and compensation payable for any damagecaused as a result of insufficient care in its operation (par 39.32). A recommendation was made accordingly (par 39.35).

76 The terms of the first question suggest that the Committee wasnot concerned, in this section of the Gibbs Report, to consider the processing of information stored in computers. Clause 3ZG in the Committee's draft Bill foreshadowed s 3K and was intended to implement the recommendation in par 39.35.

77 The analysis of the second question, concerning access to information recorded on a computer, again attracted references tothe earlier Discussion Paper. There the Committee had referred to

"[t]he peculiarity of a computer ... that, although large amounts of information may be stored within it, the information is not in a form readable by the human eye until the computer is operated so as to produce the information in either a documentary form oron a screen."

It identified two particular problems. The first was that it was not clear whether the existing law permitted an officer to examine and operate a computer found on the warrant premises. Thesecond was that if the information was recorded only in the internal memory of the computer system, the officer could seize the "whole computer" but such a seizure might prove unnecessarilydisruptive to the users of the system. In accordance with arguments foreshadowed in the Discussion Paper, the Gibbs Report recommended (at par 39.39):

"that where an officer is executing a search warrant authorising him or her to seize records of particular information either in a written or electronic form, the law should, subject to any claim of privilege, expressly authorise him or her to operate a computer found in premises, the subject of the warrant, to determine whether it, or an associated storage device, contains such records and where records of the information are found to be so contained, he or she should be expressly authorised:

. to seize the computer but, as an alternative to such action:

- where the information is recorded in some removable or externalmemory device, to remove that device; or

- where the computer contains the information, otherwise than in a removable external device, to transfer the information to either a documentary form or to some removable external device and to seize the things into which the information is so transferred." (par 39.39)

These recommendations were embodied in s 3ZH of the draft Bill, the precursor of s 3L of the Crimes Act. It should be noted that the

Committee's proposed definition of "evidential material" did not include any reference to material in electronic form.

78 Some important changes were made to the draft legislation before Parliament passed the Crimes Amendment Act 1994, introducing Pt IAA into the Crimes Act. For present purposes, the most significant change was the inclusion in the definition of "evidential material" of "such a thing in electronic form". Thereis nothing however, in the Explanatory Memorandum to suggest thatthe expanded definition of "evidential material" was intended to have the effect that s 3K(2) would authorise the copying of material in electronic form and the removal of the storage devices onto which any such material has been copied. That remained the province of s 3L, as the Gibbs Report envisaged.

79 The Gibbs Report did not disclose any consideration by the Committee of any possible overlap between the proposals with respect to the first question and those with respect to the second question.

SEIZURE UNDER SEARCH WARRANT

80 Before turning to the particular issues for decision in the appeal, it is desirable to consider the notion of "seizure" and also what constitutes execution of a warrant issued under Div 2 in respect of premises.

81 The term "seizure" is not defined in the Crimes Act. The ordinary meaning of the word is "confiscation or forcible taking possession (of land or goods)": Shorter Oxford English Dictionary; Johnston & Co v Hogg(1883) 10 QBD 432, at 434, per Cave J; Scott v Gere [1988] WAR 377, at 386, per curiam. Some act must be done sufficient to indicate that a seizure has been made: Whim Creek Consolidated NL v Colgan[1991] FCA 467; (1991) 31 FCR 469, at 482-483, per O'Loughlin J, with whom Spender and French JJ agreed. In Halsbury's Laws of England (4th ed) vol 17, par 489, it was said of seizure of goods under writs of fieri facias that:

"[a]ny act which, if not done with the court's authority, would amount to a trespass to goods will constitute a seizure of them when done under the writ. Whether or not there has been a seizure is a question of fact." (Footnotes omitted.)

The passage was cited with approval in Whim Creek, at 482. The designation of seizure as a question of fact leaves open the possibility that a seizure may be effected and characterised as such, even though it may be beyond the authority given by the warrant or the statute. It suggests that where a purported seizure has been made without proper consideration of whether there are reasonable grounds for suspecting that the things seized are evidential material or relate to an offence, the legalinvalidity of the seizure would not ipso facto reduce it to a pre-examination removal under s 3K.

82 The content of the term "seizure" is to be understood in lightof its purpose which is to enable use of the things seized in theinvestigation of a suspected offence and at any subsequent trial arising out of the investigation. Seizure under a search warrant therefore involves a taking of possession that is temporary and for a specific purpose. Anything seized must be returned if the reasons for the seizure no longer exist or if it is decided that it is not to be used in evidence (s 3ZV). That requirement does not apply to the case in which the thing is forfeited to the Commonwealth or is the subject of a dispute as to its ownership.

83 While removal of things from the warrant premises will usuallyconstitute and complete their seizure and the execution of the warrant, this is not the case if they are removed for examinationunder s 3K without the executing officer having formed any beliefas to their contents. Seizure, in that case, does not occur untilafter the examination and a decision by the relevant officer to effect their seizure. To be lawful, that decision must be based upon the requisite state of satisfaction that the things seized are evidential material of the kind specified in the warrant.

EXECUTION AND EXPIRY

84 The powers conferred by s 3F exist only in relation to "a warrant that is in force". A warrant remains in force only for

seven days from the date of issue or such lesser period as is stated in the warrant by the issuing officer (s 3E(5)). In the present case, the specified period was seven days. Although successive warrants may issue in respect of the same premises or persons, there is no mechanism in the Act for extending the period for which a particular warrant is in force.

85 The execution of a warrant involves the elements of entry and search whether things are found and seized or not: see, for example, R v Adams [1980] QB 575, at 581-582. Entry, search and seizure (if any) followed by departure from the premises will in the ordinary course complete the execution of the warrant. Re-entry and continuation of a search with the same warrant is only authorised in the limited circumstances set out in subss 3J(2) and (3).

86 Where s 3K is relied upon, seizure is deferred until the completion of the examination of things moved from the warrant premises under that section. As already observed, the section involves a distinction between moving things from the warrant premises to another place for examination, on the one hand, and seizure of those things, on the other. Section 3K does not specify any time period for the completion of the examination. However, it is ancillary to s 3F. It confers no free standing power of seizure. The purpose of the examination or processing which it authorises under s 3K(2) is to determine whether the things which have been moved from the premises "may be seized under the warrant". The power to seize still derives from s 3F. It therefore exists only in relation to a "warrant that is in force". The warrant remains in force only for the period specified in it (s 3E(5)). If seizure has not been made of thingsmoved under s 3K within the period stated in the warrant, then the power to seize lapses. If examination has not been completed the power to examine also lapses. Absent any other lawful basis for retaining the things moved, they must be returned.

87 Section 3L creates an alternative process for the execution ofa warrant. It directly authorises, of its own force, seizure of equipment, associated storage devices and documents produced on the warrant premises using the equipment which is there. Seizure

in that setting has the same meaning, effect and consequences as a seizure pursuant to s 3F. However s 3L also introduces a new element of "taking" (s 3L(2)(c)). This applies to disks, tapes orother storage devices brought on to the warrant premises by the executing officers and used to download or copy evidential material by operating equipment or other facilities on the premises. So it will authorise an executing officer to bring a cd-rom disk on to the premises and to download onto it information kept in electronic form in a computer on the premises. The statute draws a distinction between the seizure of a thing from the premises and the taking away of a thing brought onto the premises. The corollary of this distinction is that information in electronic form downloaded onto a device brought on the premises is not treated as itself the subject of "seizure".

88 The authority to copy information on to a storage device and to take that device from the premises under s 3L is conditioned upon the executing officer or constable finding "that evidential material is accessible by doing so". That requires consideration of whether the stored information is evidential material. In turnthat requires, at the very least, an assessment of whether the stored information is such that there are reasonable grounds for suspecting that it will afford evidence as to the commission of an offence (s 3). If no such consideration has been given and no "finding" made that evidential material is accessible, then the copying of the information is not authorised. The disk or other storage devices onto which information is downloaded in those circumstances do not thereby become the property of the owner of the equipment from which the information was copied. But having been copied in consequence of an unauthorised invasion of privacy, the Court will, in such a case, award appropriate reliefwhich may include the delivery up of the relevant storage devicesto the owner or occupier of the premises.

THE PRESENT CASE

89 The preceding observations about the operation of ss 3K and 3Lrequire no application of any rule of strict construction. They flow from the ordinary meaning of the words used in those

sections, and the way in which they relate to the other provisions of Div 1 and 2 of Pt 1AA of the Crimes Act. They are also consistent with the purpose of the provisions as indicated by the Gibbs Report.

SECTION 3K AND DOWNLOADING

90 On the proper construction of s 3K, it can have no applicationto a case, such as the present, in which electronically stored information is downloaded onto disks or other storage devices brought onto the warrant premises for that purpose by the executing officers. The primary reason for that conclusion is that s 3K contemplates "seizure", and only "seizure", of the thing moved as the end point of the execution process. A storage device brought onto the premises by the executing officer cannot be "seized". So much is clear from the use in s 3L of the distinction between seizing things found at the premises and "tak[ing]" from the premises such storage devices with downloadedinformation.

91 In its ordinary meaning, the word "seizure" is inapplicable tothe copying of information in electronic form. This construction is supported by the inapplicability, to electronic information, of the words of s 3K which provide that the "things found at the premises" may be "moved to another place". The downloaded electronic information is a replication of the information found on the premises. The original information is not "moved".

92 The respondents contended that s 3K(2) authorises not only theremoval to another place of computers or storage devices in or onwhich electronic material is stored, but the copying of such material onto storage devices brought to the premises for the purpose and the removal from the premises of those devices. It isa fundamental difficulty in the path of this approach to the construction of s 3K(2) that the language of the subsection is quite specific. It provides that, in certain circumstances, "the things may be moved to another place". The provision only authorises the moving of a thing to another place for the purposedescribed. The fact that the legislation, by virtue of the definition of "evidential material", contemplates that material

in electronic form, may be "seized" (without identifying the manner by which it may be seized) does not demonstrate that material in electronic form can be "moved" in accordance with s 3K(2) of the Crimes Act.

93 There was no expert evidence in this case that addressed the question of whether information stored in electronic form can be "moved" and, if so, how. There was, however, evidence as to what happened in the present case. The primary Judge found that Mr Michael and Mr Farnell had downloaded onto their equipment material stored on servers and in computers at the warrant premises. His Honour described (at 458) this process as "copying"information stored on electronic storage devices. Although his Honour did not expressly say so, his finding implies that the material in electronic form stored on servers or computers remained undisturbed. That this is so is shown by the evidence ofMr Farnell, who described his actions at the warrant premises as follows :

"I informed Federal Agent Cramp that I believed that evidential material was contained on those computer hard drives. At his direction, I commenced to image the hard drives of those computers. After removing the covers from the computers, the hard disk drives contained therein were connected to an AFP computer. Using only the resources of the AFP computer, a duplicate copy of the hard drives was made to an AFP mass storage device using a commercially available software program.

The software program creates an exact image of the entire contents of the hard drive. The software package does not alter any information or data contained on the hard drive being copied." (Emphasis added.)

It would seem clearly to follow that what happened in the presentcase did not involve a thing (the material in electronic form) being "moved" from the warrant premises to another place. While the material was copied and the storage device onto which it was copied was moved, the material itself remained where it was.

94 The respondents attempted to meet this difficulty by invoking s 3N as an aid to the construction of s 3K. Mr Gottersonsubmitted that s 3N(1) clearly contemplates that a computer file can be seized. Since a computer file is (as his Honour indicated

(at 457)) a discrete body of information stored in electronic form in a storage device, s 3N(1) indicates that material in electronic form can be seized. And since the only means by which a computer file can be seized (or moved) is by being downloaded or copied, it follows, so it was argued, that s 3K authorises theremoval of material in electronic form by copying it onto a storage device and taking the storage device from the premises.

95 The expression "computer file" is not defined in the Crimes Act.A technical dictionary published shortly before the enactment of Pt 1AA of the Crimes Act (Chambers Science and Technology Dictionary (1988)) defines "file" in relation to a computer as a

"General term for named set of data items stored in machine readable form".

A more recent technical dictionary, Prentice Hall's Illustrated Dictionary of Computing (2nd ed, 1995) defines a "file" as

"A collection of records each stored on a secondary storage medium such as a diskette or hard disk".

It appears that, in practice, terms like "hard drive" and "hard disk" are used more or less interchangeably. The term "hard" differentiates high capacity rigid disks made of aluminium or glass from low capacity floppy disks made of plastic: see TechEncyclopaedia <www.techweb.com/encyclopedia>.

96 It will be seen that s 3N makes no reference to whether material stored in electronic form can be "moved". For this reason, the section cannot be read as assuming that such materialcan be moved, much less whether downloading the material onto a storage disk and taking the storage disk from the warrant premises amounts to the material being "moved" for the purposes of s 3K(2). Indeed, the drafting of s 3N does not incorporate an assumption that all material in electronic form is capable of being seized under Pt 1AA of the Crimes Act (although other provisions in Pt 1AA may suggest that this is the case). Section 3N(1)(a) clearly enough contemplates that a computer file is a "thing" that is capable of being "seize[d]". By contrast, s 3N(1)(b) contemplates that "information" in a "storage device" can be

copied, but says nothing about whether such information can be seized.

97 As we have noted, the legislation does not explicitly state how material in electronic form is to be seized under the powers conferred by Pt 1AA. It is not necessary in the present case to resolve that question. It is enough to observe that a computer file might well be regarded as having been seized if, for example, the hard disk on which it is stored is seized pursuant to the statutory powers. (Section 3L(2) confers a specific power to seize both electronic equipment and any disk, tape or associated device. That power, however, may be wider than the general power of seizure conferred by s 3F(1)(c), or at least mayapply in different circumstances.) The point is that there is nothing in s 3N to support the conclusion that s 3K(2) should be read otherwise than in accordance with its clear language. That is, the copying of material in electronic form and the taking of the storage device onto which the material has been copied from the warrant premises does not result in the original material being "moved" for the purposes of s 3K(2).

98 Furthermore, even if the language of s 3N appeared to assume that material stored in electronic form is capable of being moved, this would not justify giving a broader meaning to s 3K(2). Section 3N imposes a requirement that a constable make a copy of a thing or of information and provide it to an occupier or the occupier's representatives. The principles laid down in George v Rockett, as we have noted, require strict compliance with the statutory limitations on the exercise of intrusive powers of the kind conferred by s 3K(2). Assumptions made in the drafting of a provision imposing safeguards in the interests of occupiers ought not to control the construction of limitations clearly expressed elsewhere in the legislation on the grant of a substantive power.

99 It follows from what we have said that s 3K(2) did not authorise the downloading and copying of electronic material at the premises identified in Declaration 5(a). Declaration 5(a), therefore, cannot stand.

100 We recognise that the construction of s 3K(2) that we have adopted prevents officers using the powers conferred by that subsection to copy electronically stored material, yet allows them to move, for the purpose of examination and processing, the storage devices on which the electronic material is stored. But s3L(2), whatever difficulties of interpretation it presents, provides an alternative mechanism for downloading and copying material stored in electronic form. Construing s 3K(2) as we havedoes not render the legislative scheme unworkable.

101 As a practical matter, the copying of material in electronic form is now governed by the new legislative regime introduced by the Cybercrime Act. That regime specifically addresses the copying of what is described as "data": see now s 3L(1), (1A) and (1B). Section 3K(2) has been repealed and replaced. Accordingly, the question of construction we have addressed does not arise under the new legislation.

THE PRE-EXAMINATION SEIZURE OF TAPES, CARTRIDGES AND DISKS UNDER SECTION 3K

102 The tapes, cartridges and disks which were the subject of Declarations 5(b) and 5(c) were found on the premises from which they were taken. They were identified by the primary Judge as back-up tapes taken from Gestner Industries' premises and data tape cartridges and floppy disks taken from various Harts' offices. His Honour found it was not practicable for any of the executing officers to examine any of these items at the premises from which they were taken (at 458-459). He found that the precondition in s 3K(2)(a) to the lawful removal of the tapes, cartridges and floppy disks was satisfied. He also found that theexecuting officers who took those items considered that they wereseizing them under the relevant warrants, that is to say pursuantto s 3F of the Act. That seizure, however, was not authorised, because the officers had not considered whether the items contained evidential material. The question was then whether the respondents could invoke s 3K at the hearing. His Honour found that they could and, as we have noted, his conclusion in this respect was not controverted in argument.

103 With respect, we do not consider that the implied concession was correct. Seizure, as noted earlier, is a matter of fact. It is a forcible taking of possession of things. Once the officers took the items the subject of Declarations 5(b) and (c), seizure had occurred. As earlier noted, once a purported seizure has beenmade without proper consideration of whether there were reasonable grounds for suspecting that the things seized are or contain evidential material or relate to an offence, the legal invalidity of that seizure does not ipso facto change its character as a seizure. Nor does it reduce the seizure to a pre-examinationremoval under s 3K. This is no mere technical quibble. A seizure of property belonging to another, purportedly pursuant to a warrant, is a serious and deliberate act that does not change itsfactual character because it is unauthorised by law. We cannot, therefore, support the conclusions reflected in Declarations 5(b)and 5(c).

104 This point not having been argued on the appeal, written submissions were invited from the parties. The Australian Government Solicitor, on behalf of the respondents, contended that a purported seizure would not preclude reliance upon s 3K ifit were otherwise available to the respondents. The general proposition was advanced that, when a power is exercised, a mistake as to the source of the power works no invalidity. Reference was made to Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, at 426, per Brennan J, and Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409. Theproposition does not, however, address the circumstances of this case. It is true that an official act done in purported but mistaken exercise of one power may be supported by reference to another power. That does not mean, however, that one kind of act,seizure, can be converted by retrospective reflection on the law into another kind of act, namely pre-seizure removal. Seizure is a matter of fact, not a matter of law. What occurred in this casewas seizure.

105 The authorities relied upon by the respondents in this connection do not assist them. In Johns, the Court was dealing withthe provision of transcript of an examination conducted by the

Australian Securities Commission to the Tricontinental Royal Commission. There was a question about the Australian Securities Commission's source of power to provide the transcripts. There were two provisions of the Australian Securities Commission Act 1989 (Cth) relied upon as authority in the alternative for the provision of the transcripts. Brennan J, doubting the availability of one of those provisions, said (at 426) that if there were an error it was nonetheless immaterial:

"When a power is exercised, a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed".

106 His Honour referred to a footnote in three cases which are also relied upon by the respondents. They were Moore v Attorney-General (Irish Free State) [1935] AC 484, at 498; R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452, at 487, per Williams J, and Brown v West (1990) 169 CLR 195, at 203, per curiam. Each of thosecases concerned an act done, purportedly under one power, but supportable under another. The several acts held to be valid in those cases were, respectively:

* the abolition, by the Parliament of the Irish Free State, of appeals to the Privy Council by amendment of the Irish Free StateConstitution;

* the constituting of a court martial; and

* the determination of an allowance by the Remuneration Tribunal under the Remuneration Tribunal Act 1973 (Cth).

Mercantile Mutual v ASC, also relied upon by the respondents, concernedthe statutory source of power for an instrument issued by a delegate of the Australian Securities Commission, authorising trustees of the Estate Mortgage Trust to apply for a court order under s 597 of the Corporations Law for examination of their predecessor trustee. The source of the power was not s 597 of the Corporations Law, but s 11(4) of theAustralian Securities Commission Act 1989 (Cth). In each of these cases the question was whether an official act (a legislative act in Moore v Attorney-General) bearing one character and one character only, was valid, notwithstanding

that reliance had been placed upon the wrong statutory source of power in doing the act. None of them involved retrospectively changing the nature of the act. The difference between seizure and removal is not a mere matter of labelling. It is a matter of substance.

SECTION 3K AND A REASONABLE TIME

107 Assuming that this conclusion is wrong, the question remains whether, so far as the items the subject of those Declarations are concerned, Declaration 6 can be maintained. The argument concerning this issue on the appeal depended upon the common position of the parties that the task of the primary judgewas to determine whether a reasonable time had elapsed for the examination of the items when the proceedings were brought. In this respect, his Honour said (at 460):

"The Court will, I think, readily imply into a provision like s 3K(2) that empowers a policeofficer to deprive a person of possession of his property for the purpose of examination,an obligation to conduct the examination within such time after the taking as is reasonable in all the circumstances. I accept the applicants' submissions to that effect."

108 In our respectful opinion, the section cannot bear the implication which his Honour propounded and which was accepted byappellant and respondents. That is because, as already pointed out, what it authorises is examination with a view to "seizure under the warrant". The time limited for the examination is the time during which the warrant remains in force. That time was seven days from the date of issue.

109 No argument was advanced on either side about this proposition at the hearing of the appeal. Written submissions were subsequently invited on this matter as on the question of seizure referred to above. The Australian Government Solicitor, on behalf of the respondents, stated in its written response to that invitation that it accepted the force of the argument that any pre-seizure examination authorised by s 3K may lawfully continue for so long, but only for so long, as the warrant is in force. The respondents accepted that a reasonable time implication for a pre-seizure examination was thereby precluded.

It was also accepted that authority to conduct a pre-seizure examination and to seize the relevant items had expired with the expiry of the warrants seven days after their issue.

110 In our opinion, for the preceding reasons, Declaration 6 cannot stand and should be set aside.

111 In view of this conclusion, it is not necessary for us to address the appellant's submission that the primary Judge erred in finding that the reasonable time, which his Honour held was allowed by s 3K(2) for the examination or processing of the tapes, cartridges and floppy disks moved from the warrant premises, had not elapsed. Had it been necessary to address that issue, we would have been inclined to take into account the fact that the primary Judge made a finding on an issue involving substantial elements of opinion or judgment. However, on our construction of s 3K(2), the issue does not arise.

CROSS APPEAL

112 The cross appeal raises the question of whether s 3L(2) of the Crimes Act authorised the downloading of the entirety of the material at the warrant premises identified in Declaration 5(a). This, in turn was said to raise an issue of construction, namely whether the word "material" as used in s 3L(2)(b) and (c) is confined to "evidential material".

113 Before that issue is reached, however, it is necessary to address the appellant's contention that the primary Judge made findings that necessarily carried the consequence that the powersconferred by s 3L(2) had never been enlivened in relation to the downloading of electronic material. The appellant argued that thefindings made by the primary Judge were inconsistent with the relevant officers having found that "evidential material [was] accessible" (as s 3L(2) requires). It should be noted that the appellant did not file a notice of contention foreshadowing this argument, but it is not clear that he was required to do so: cf Federal Court Rules, O 52 r 22(3) (expressed in terms of the "respondent" filing a notice of contention). In any event, the respondents did not object to the argument being put.

114 It will be recalled that the powers conferred by s 3L(2)(c) are available only

"[i]f the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so".

The expression "evidential material" is relevantly defined in 3C(1) to mean "a thing relevant to an indictable offence ... including such a thing in electronic form". It will also be recalled that the warrants specified three conditions, all of which had to be satisfied. The third condition required that there be reasonable grounds to suspect that the things afforded evidence as to the commission of four specified offences against the Commonwealth.

115 The primary Judge found (at 463), as noted earlier, that the officers who downloaded electronic material and removed the tapes, cartridges and disks onto which the material had been copied, considered that they were seizing it under the relevant warrant. Messrs Michael and Farnell gave explicit evidence to that effect. His Honour went on to make this important finding (at 463-464):

"[I]t is also clear that insufficient examination was made by Messrs Michael and Farrell of this electronic material to enable them to determine whether it contained material within the third condition of the relevant warrant. One of the checks that Messrs Michael and Farnell made for themselves on the material they foundstored in electronic form at the various premises and which they subsequently downloaded was the check that involved using the keyword search program which they brought with them. This program enabled them to determine whether, among the massof electronic data held at the premises, there was material referring to various of the entities mentioned in the second condition of the warrant. But the program was quite insufficient to enable the AFP computer experts to make any decision with respectto whether there was stored any material that might also satisfy the third condition of the warrant(save in so far as the keyword search may have thrown up some references to the Hendon and the Northbourne Trusts). Mr Michael did not use the keyword search program to check all the material held at 240 Margaret Street: he downloaded the contents of the drives on the two servers on the basis of information asto their general contents provided to him by Ms McLeod and on what he called "the sample data" that he called up from these servers on the computer screen that he used

there. Mr Farnell said he decided to download the whole of the material stored at the Harts' Toowoomba Office in the computer system then being used there because the keyword search program showed that that system contained information with respect to persons named in the second condition of the warrant and documentation within thetime period in the third condition; he also relied on statements made by Harts employees that information within the warrant was contained in the system. It was on the basis of his `preliminary search' of the contents of the Gessner Industries system that Mr Farnell first started to download its entire contents and then took the Gessner back-up tapes." (Emphasis added.)

116 Mr McMurdo submitted that these findings indicated clearly that neither Mr Michael nor Mr Farnell had directed his attentionto whether the material stored in electronic form contained material that satisfied the third condition of the warrant. It followed that neither officer could have determined that evidential material - that is, material relevant to an indictableoffence - was accessible by operating electronic equipment at thepremises. Mr McMurdo submitted that this conclusion was consistent with the finding made earlier in the judgment (at 458-459) that it was

"not practicable to examine any of the electronic material in the first class referred to inpar 98.1 at the relevant warrant premises, ie, to examine it in circumstances in which a judgment could be made as to what, if any, specific pieces of information were contained in that material which were within the warrant."

117 Mr Gotterson submitted that the relevant officer can "find" that evidential material is accessible for the purposes of s 3L(2) simply on the basis of what he or she is told by the occupier (or in this case the occupier's employees) at the time the warrant is executed. The difficulty with this submission is that s 3L(2) requires an officer, after operating electronic equipment at the premises, to find that evidential material is accessible by doing so. Section 3L(2) clearly enough contemplatesthat the officer will operate the electronic equipment and thereby ascertain that evidential material is accessible. Doubtless the officer can have regard to information provided by the occupier for certain purposes, for example, to satisfy himself or herself that particular documents that can be accessedare things "relevant to an indictable offence" (having regard to

the definition of that expression in s 3(1)). Section 3L(2) does not envisage, however, that the officer can ascertain that evidential material in electronic form is accessible independently of the officer actually operating the equipment at the premises. The recommendations in the Gibbs Report, which we have already extracted ([75]-[77] above), support this view, since they recognise the need for the law to authorise the officer to "operate a computer found in [the warrant] premises ... to determine whether it, or an associated storage device, contains records [of particular information]".

118 The primary Judge specifically found that neither Mr Michael nor Mr Farnell undertook a sufficient examination of the electronic material to enable them to determine whether it contained material relevant to any of the specified offences. It follows that they could not have formed the view that evidential material was accessible by operating the equipment on the basis of their having operated the equipment. In other words, there wasno causal relationship between whatever operations they performedon the equipment and the view they formed that evidential material was accessible by operating the electronic equipment.

119 In view of his Honour's findings, the respondents are unable to rely on s 3L(2) of the Crimes Act to justify the copying of electronic material at the warrant premises into storage devices and the taking of the storage devices from the premises. It is therefore not necessary to address the appellant's argument as tothe construction of the word "material" in s 3L(2).

THE PARTIES

120 The applicants in the proceedings before the learned primary judge were the present appellant, Mr Hart, together with Harts Australia Ltd, Harts Pty Ltd, Robert Thomas Adcock and Astion PtyLtd. Harts Australia Ltd was the subject of a winding up order on28 October 2001. Harts Pty Ltd is also in liquidation. Robert Adcock became bankrupt prior to the commencement of the hearing. A receiver was appointed to Astion Pty Ltd in March 2002. The solicitors for the appellant, who acted for all applicants in theoriginal proceedings, have advised the Court that when they

sought instructions on the appeal, the only person interested in appealing was Mr Hart, the present appellant.

121 Following an inquiry from the Court by letter dated 30 September 2002, the solicitors for the appellant and for the respondents both submitted that the non-appellant applicants neednot be joined as parties in respect of any of the substantive issues save, in the respondents' submission, on the question of costs of the primary hearing.

122 The question of joinder is governed by O 52 r 14 of the Federal Court Rules, which provides as follows:

"(1) Each party to the proceeding in the court appealed from who is affected by the relief sought by a notice of appeal or is interested in maintaining the judgment under appeal shall be joined as a party appellant or respondent to the appeal.

(2) The Court or a Judge may order the addition or removal of any person as a party appellant or respondent to an appeal.

(3) A person shall not be made an appellant without his consent."

123 The respondents submitted that neither the declarations sought by the appellant in relation to downloaded material nor any order for erasure of downloaded material that might be soughtaffect the non-appellant applicant's legal rights or liabilities.Neither the AFP storage devices nor what is recorded on them is property of any of the applicants. The removal of items from the premises and their retention for examination, said now to be justified by s 3K, if it stands would not affect the position of the non-appellant applicants. If, on the other hand, they were found to have been wrongly removed and orders made for their return, it would vindicate their original claimed entitlement, but not alter rights or liabilities in relation to it. So it was said the non-appellant applicants were not affected by the reliefsought in respect of such equipment and need not be joined as parties to the appeal in relation to it.

124 As counsel for the respondents submitted however, it may be necessary to join the non-appellant applicants if an order is to

be made affecting the costs at trial. We agree. In the circumstances, it is appropriate to invite submissions from the non-appellant applicants on the costs of the primary application and on the basis that if any one of them accepts that invitation it will be joined as an appellant (if it so consents) for that purpose, or otherwise as a respondent.

THE ORDERS

125 In our opinion, the appropriate orders in this case are as follows:

1. The appeal be allowed.

2. Declarations 5 and 6 made by the primary Judge on 21 March 2002 be set aside.

3. In lieu thereof it be declared that:

A. The respondents were not entitled to remove from the various premises any of the material in electronic form:

(a) downloaded at the first applicant's premises at 240 Margaret Street, Brisbane and 63 Neil Street, Toowoomba and at the premises of Bradley Fibreglass at Brendale onto Australian Federal Police storage devices;

(b) contained on tapes and cartridges belonging to the occupiers of the premises of the first applicants at 63 Neil Street, Toowoomba and of Gestner Industries at Toowoomba; or

(c) contained on floppy disks.

B. The respondents are not entitled to examine or process any of the material in electronic form to which the preceding Declaration applies in order to determine whether any of it is information that can be seized under the relevant warrant.

4. The cross-appeal be dismissed.

5. There be liberty to apply by written submission within 21 daysas to costs and any further ancillary orders.

6. There be liberty to the non-appellant applicants to apply by written submission within 21 days as to the costs of the proceedings before the primary Judge on the basis that, if any ofthem does so, it will be joined as an appellant, with its consent, or otherwise as a respondent.

I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French, Sackville & J D Nicholson JJ.

Associate:

Dated: 5 December 2002

Counsel for the Applicant:

Mr P McMurdo QC with Mr L Bowden

Solicitor for the Applicant:

Hawthorn Cuppaidge & Badgery

Counsel for the Respondent:

Mr R Gotterson QC with Mr D Boddice SC

Solicitor for the Respondent:

Australian Government Solicitor

Date of Hearing: 26 August 2002Date of Last Written Submissions:

29 November 2002

Date of Judgment: 5 December 2002