Case: Hart v Commissioner of the Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384
Outcome: cited
In Hart v Commissioner of the Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384 (" Hart ") at 399-403, the Full Court (French, Sackville and RD Nicholson JJ) explained the approach that should be adopted to the construction of Pt 1AA. The Court said: "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 CLR 355 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 for the gathering of information to determine whether offences have been committed and to facilitate proof of them: Rogers v Moore (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 to apply 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. ... ... 67. Where 'strict construction' is invoked it is necessary to keep in mind what that term means. In the context of penal statutes it was said, a long time ago, and yet consistently with contemporary doctrine ( 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 The Queen [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 with established common law rights and freedoms: Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277 at 304 per O'Connor J ; Bropho v 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 of search 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 ; (1983) 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) 52 FLR 123 at 141-142 (Northrop J agreeing at 132)." 50 The Court concluded its discussion by observing that: "...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." 51 The applicant submitted that the Full Court's reference in par 65 to the 'gathering of information to determine whether offences have been committed and to facilitate proof of them' supports its argument. I disagree. When the relevant passages in the judgment of the Full Court are read as a whole, it is plain that the Full Court was not suggesting that information can only be gathered under a search warrant if it serves the dual purpose of both determining whether offences have been committed and facilitating proof of them in a criminal prosecution process. Moreover, I do not consider that the Full Court was referring to proof in a criminal prosecution process, as distinct from proof in the broader context of a criminal investigation that may or may not result in a prosecution.