Case: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 , 124 FCR 384
Outcome: cited
sections are contained within Pt 1AA of the Crimes Act . That Part was incorporated into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). Those amendments (in turn) had their origins in an interim report now known as the Gibbs Report (Attorney-General's Department, Review of Commonwealth Criminal Law, Fourth Interim Report: Offences Relating to the Administration of Justice, Offences Against the Government Involving Property or Money, Bribery and Corruption and Search Warrants (Attorney-General's Department, Canberra, 1990)). " That report and the pre-existing law form an essential part of the context relevant to the interpretation of Pt 1AA ": Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145 (' Harts Australia No 1 ') at 148 per Hill, Cooper and Whitlam JJ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 (' Hart ') at [17] [2002] FCAFC 392 ; , 124 FCR 384 at 390 per French, Sackville and R D Nicholson JJ. For present purposes, however, it is sufficient to consider the terms of s 3E and the terms of the warrants issued thereunder. When considering the ambit of a power to search and seize under a statutory warrant, it is to be recalled that the extent of that power " is that conferred by the statute, no more and no less ": Challenge Plastics Pty Ltd v Collector of Customs [1993] FCA 247 ; (1993) 42 FCR 397 at 408 to 409. Each of the requirements imposed by s 3E(5) and the other provisions in Pt 1AA , it is considered, must be construed according to the terms used and in a context where the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them: Hart [2002] FCAFC 392 at [65] , 124 FCR at 399 to 400 per French, Sackville and R D Nicholson JJ. Notwithstanding s 3K, the power to seize still derives primarily from s 3F and the language of s 3K is " quite specific ": Hart [2002] FCAFC 392 at [92] , 124 FCR at 407. French, Sackville and R D Nicholson JJ, in the context of addressing a different issue to that now before the Court, nevertheless there observed: [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. ... [T]he 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 things moved 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. ... [92] The respondents contended that s 3K(2) authorises not only the removal to another place of computers or storage devices in or on which 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 is a 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 purpose described. 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 . Their Honours there also referred to the " need to recognise the operational realities in which warrants are executed ": [2002] FCAFC 392 at [68] , 124 FCR at 401. One purpose achieved by provisions such as ss 3H and 3P is to ensure that the occupier or other person is fully informed as to the extent of the authority conferred by a warrant. He is thereby placed in a position whereby he can observe that the terms of a warrant are not being exceeded. The statement in the warrant of those matters required by s 3E(5)(a) and (c), and the requirement that a copy of the warrant be made available, ensure that the occupier or other person is not reduced to a mere bystander. Just as the issue of a warrant may be challenged in an appropriate Court upon the basis (for example) that the issuing officer erred when reaching the state of " satisfaction " required by s 3E(1) , the manner in which a warrant is executed may also be challenged upon the basis (for example) that there did not exist " reasonable grounds " for seizing materials as required by s 3F(1)(d). Section 3L imposes its own further constraints upon the power that may be exercised, including the limitations in s 3L(3) , the requirement for notice in s 3L(5) and the limitation as to the period of time that " equipment " may be " secured " in s 3L(6).