Case: Seeter Pty Ltd v Commonwealth (2004) 210 ALR 437
Outcome: distinguished
Spender J considered the validity of a series of s 3E search warrants which failed to name the issuing officer in Seeter Pty Ltd v Commonwealth (2004) 210 ALR 437. In that case, the attack was upon the validity of the warrants, rather than upon the validity of their execution. His Honour concluded at 453-454, [60]-[63] that the omission of the issuing officer's name did not invalidate the warrants. He noted at 453, [60] that each page of the search warrants under consideration bore the registration number and signature of the issuing officer, and the official stamp of the issuing authority. In those circumstances, Spender J was satisfied that the issuing officer had "adequately identified her capacity to issue the warrants": at 454, [63]. Although I was referred to that case by counsel, on reflection I do not think it assists in resolving the present issue. The Birchgrove warrant itself is not under attack, and it contains the name of the issuing officer as well as a completed attestation clause. 44 Part IAA of the Act was introduced by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). It clearly prescribes specific powers and safeguards in relation to warrants and other matters in the investigation of Commonwealth offences, including safeguards of the rights of individuals in relation to whom the coercive investigatory powers of the Commonwealth are invoked. Of particular significance to the present issue is that the Explanatory Memorandum to the Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1994 (Cth) stated, in relation to s 3H(5): "In order to prevent forgery or other wrongful use of the warrant copy, subsection 3H(5) provides that the copy need not include the signature of the issuing officer or the seal of the Court. This provision has been included at the specific request of the ACT Chief Magistrate." 45 There is no prescribed form for a search warrant issued under s 3E. Subsections 3E(5), (6) and (7) specify information which an issuing officer must state in a search warrant issued under that section. That information includes the time at which the search warrant expires: s 3E(5)(e). Section 3E(5A) directs that the time so specified must be not later than the end of the seventh day after the day on which the search warrant is issued. Those subsections do not expressly require the issuing officer to be described in, or to sign, the search warrant. 46 However, in my view, it is implicit that a search warrant will also bear on its face sufficient information to identify that it has in fact been issued by an issuing officer, so that any person entitled to see a copy of the search warrant under s 3H(1) can be satisfied as to its authenticity. That was the point made by Spender J in Seeter 210 ALR at 254, [63]. Section 3H(5) also supports the inference that a search warrant issued under s 3E should bear the signature of the issuing officer or some means of identifying that the issuing officer is in fact a person falling within the definition of "issuing officer" in s 3C(1) of the Act. That is because it expressly permits the copy of a search warrant made available under s 3H(1) not to include the signature of the issuing officer. The use of the seal of a court as part of that identification would not necessarily be expected, as the issue of a search warrant under the Act is an administrative or executive act rather than a judicial one. 47 On the Birchgrove warrant, the attestation clause was immediately preceded by words addressing the requirement of s 3E(5)(e) in the following terms: "THIS WARRANT MAY BE EXECUTED BETWEEN THE HOURS OF 6.00 AM AND 8.00 PM. THE TIME AT WHICH THIS WARRANT EXPIRES IS MIDNIGHT AT THE END OF THE SEVENTH DAY AFTER THE DAY ON WHICH THE WARRANT IS ISSUED" In its unexecuted form, it then continued: "GIVEN under my hand at ......... in the State of ..................... this ......... day of ..................... .......................................... A Magistrate in and for the State of ........................" 48 The way in which the original Birchgrove warrant was completed by the issuing officer is described in [19] above. 74 The purpose of s 3H(1) has not been the subject of much judicial discussion. Nor was its purpose explored in the Review of Commonwealth Criminal Law: Fourth Interim Report , Canberra, November 1990 (the Gibbs Committee Report) which presaged the introduction of Part 1AA into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). (The history of Part 1AA is discussed by the Full Court in Harts Australia Ltd v Commissioner, Australia Federal Police (1997) 75 FCR 145 at 147-148.) In Wright v Queensland Police Service [2002] 2 Qd R 667, Holmes J at [30] referred to the ability of an occupier to whom a copy of a search warrant is made available being able "to ascertain the scope of the authority conferred by [the warrant] or the jurisdiction by which it was issued". That approach also is consistent with the approach of Spender J in Seeter 210 ALR 47.