mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Tracey; Ex parte Ryan (1989) 166 CLR 578
Outcome: cited
The precise character of the power exercised by a court martial may be debatable. In White v DPP at [10], Gleeson CJ cited Professor Harrison Moore's description of courts martial as tribunals which exercise a ' judicial function but which stand outside Chapter III '. The Chief Justice later adopted (at [14]) the view of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan (1989) 166 CLR 578, at 574, that service tribunals exercise a: 'power sui generis which is supported solely by s 51(vi) [the defence power] for the purpose of maintaining or enforcing service discipline'.
Case: A v Boulton [2004] FCAFC 101 , 136 FCR 420
Outcome: cited
statutory power conferred upon an examiner to compulsorily obtain documents is in itself a provision which seriously intrudes upon the ability of a person to keep his documents otherwise confidential to himself. Given both the potential for a serious erosion into the confidentiality of an individual's documents and the consequences for non-compliance (including a substantial fine and/or imprisonment), it is a provision which must be construed according to its terms such that no greater power is in fact exercised than the words employed by the legislature permit. As noted by French J (as His Honour then was) in Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403 at 433: Australia is a liberal democracy with a broad tradition of at least nominal resistance to encroachment upon established rights and freedoms. That view is reinforced by its adherence to the International Covenant on Civil and Political Rights, which relevantly provides in Art 17, inter alia, that: "No-one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence ..." The nature of this society, and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of the Parliament must be respected. Legislation, it has been accepted, will not be construed so as to deprive a person of an important common law right, privilege or immunity, if otherwise available, " unless a legislative intent to do so clearly emerges, whether by express words or necessary implication ": A v Boulton [2004] FCAFC 101 at [54] , [2004] FCAFC 101 ; 136 FCR 420 at 434 per Kenny J (Beaumont and Dowsett JJ agreeing).
Case: Adamson v Noall [1967] VR 105
Outcome: cited
degree of care with which provisions such as s 22 have been drafted is obvious. At common law, for example, a police officer who was lawfully upon premises had a limited ability to seize that which he believed was evidence of a crime: Elias v Pasmore [1934] 2 KB 164. It was said that " the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone ": [1934] 2 KB at 173. Other decisions limited this power to seize to only those materials which implicated the occupier in the same offence as that for which an arrest was being made or the seizure of those documents which implicated some other person in the same offence as that for which a search warrant had been issued: Ghani v Jones [1970] 1 QB 693 at 706; Butler v Board of Trade [1971] Ch 680 at 691; G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 at 644 to 645; Adamson v Noall [1967] VR 105 at 115. Whatever be the extent of the power conferred at common law, s 22(7) now confers the following power: Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he or she believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, the person may seize the thing and, if he or she does so, the thing shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant. The concern of those drafting the Act was to ensure that the power of the Commission and its officers was clear. That which will require clarification in the future are the rights of those against whom the power is invoked.
Case: Australian Securities Commission v Lucas (1992) 36 FCR 165
Outcome: cited
Applicants accept that they bear the onus of proving the invalidity of the notices: cf Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; X v Australian Crime Commission [2004] FCA 1475 at [22] , [2004] FCA 1475 ; 139 FCR 413 at 419 to 420 per Finn J; Kennedy v Baker [2004] FCA 562 at [85] to [86], [2004] FCA 562 ; 135 FCR 520 at 542 to 543 per Branson J. After referring to Pyneboard and other decisions of the Full Court of this Court, in Australian Securities Commission v Lucas (1992) 36 FCR 165. Drummond J summarised the position in respect to notices issued under s 155 as follows: ... so far as form is concerned, a notice issued under s 155 of the Trade Practices Act to be valid must contain the following information: (a) it must disclose on its face sufficient information to identify the "matter" with respect to which the recipient of the notice is thought to be capable of giving information, evidence or producing documents; and (b) the notice must contain sufficient information to disclose the necessary relationship between the information or documents sought and the matter in respect of which that material is sought. This has been described as the " entitlement disclosure condition ": S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ. The Australian Crime Commission Act 2002 (Cth) confers functions and powers of fundamental importance upon the Commission. But it forever remains of importance that such powers as are conferred are exercised according to their terms and that Courts are vigilant to ensure that such powers are not exceeded. Perhaps to an ever greater extent than in other areas of legislative attention (eg Australian Securities Commission v Lucas (1992) 36 FCR 165 at 174), it is important to ensure that the purposes for which such powers as s 29 have been conferred are not frustrated by unmeritorious applications for judicial review. Although there are differences between each of the statutory provisions authorising a notice requiring the production of documents, s 29 of the present Act is to be construed as conferring upon an examiner " an effective, but not an oppressive, or unfair, power of investigation ". It is sufficient for present purposes to reject each of the arguments advanced on behalf of the Applicants. The exercises of the power conferred by s 29 are not vitiated by reason of either uncertainty in the terms with which each notice is expressed, any failure to consider a relevant consideration or by reason of any asserted unreasonableness as to the time within which production was required. The ambit of the power conferred by s 29 , the many features peculiar to the present statutory context and the differences in terminology as between s 29 and other statutory provisions serve as reminders to construe s 29 according to its terms. So construed, in the present proceedings, each of the decisions taken have been authorised by its terms.
Case: Butler v Board of Trade [1971] Ch 680
Outcome: cited
degree of care with which provisions such as s 22 have been drafted is obvious. At common law, for example, a police officer who was lawfully upon premises had a limited ability to seize that which he believed was evidence of a crime: Elias v Pasmore [1934] 2 KB 164. It was said that " the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone ": [1934] 2 KB at 173. Other decisions limited this power to seize to only those materials which implicated the occupier in the same offence as that for which an arrest was being made or the seizure of those documents which implicated some other person in the same offence as that for which a search warrant had been issued: Ghani v Jones [1970] 1 QB 693 at 706; Butler v Board of Trade [1971] Ch 680 at 691; G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 at 644 to 645; Adamson v Noall [1967] VR 105 at 115. Whatever be the extent of the power conferred at common law, s 22(7) now confers the following power: Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he or she believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, the person may seize the thing and, if he or she does so, the thing shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant. The concern of those drafting the Act was to ensure that the power of the Commission and its officers was clear. That which will require clarification in the future are the rights of those against whom the power is invoked.
Case: CK Nominees Australia Pty Ltd v Official Receiver (WA) [2007] FCAFC 118 , 160 FCR 524
Outcome: cited
77C of the Bankruptcy Act 1966 (Cth) uses different language yet again. Section 77C(1)(b) permits a notice to be issued requiring a person to " produce all books in the person's possession relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act ... ". In respect to that provision it has been said that a " broad common sense approach " should be adopted. If the demand can be reasonably understood, the notice is valid: CK Nominees Australia Pty Ltd v Official Receiver (WA) [2007] FCAFC 118 , 160 FCR 524. A statutory demand had there been issued under s 77C of the Bankruptcy Act 1966 and Moore J concluded: [39] The appellant made a subsidiary submission that the notice was not reasonably clear about what documents were required. The submission centred on the expression "associated entities" which is used in the definition of "examinable affairs" set out on the third page of the notice (containing extracts from the Act). The expression "associated entities" is defined in the Act (though that definition was not sent with the extracts) and the expression "private company" which is found in the definition of "associated entities" is a defined expression. In my opinion, the primary judge was correct in concluding that the Court should, when construing a notice of the type under consideration, take a "broad common sense approach", an expression which fairly synthesises the more detailed discussion of the Full Court in Pyneboard 57 FLR at 374-375; 39 ALR at 570-571. In construing the reference to "examinable affairs" and looking at the definition, including the expression "associated entities", a recipient could reasonably be expected to understand that the notice was seeking documents concerning the direct dealings of the bankrupt as well as documents concerning the financial affairs of associated entities. That term described with sufficient clarity and as an ordinary English expression what was comprehended by the more precise definition including the reference to private company.
Case: Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403
Outcome: cited
statutory power conferred upon an examiner to compulsorily obtain documents is in itself a provision which seriously intrudes upon the ability of a person to keep his documents otherwise confidential to himself. Given both the potential for a serious erosion into the confidentiality of an individual's documents and the consequences for non-compliance (including a substantial fine and/or imprisonment), it is a provision which must be construed according to its terms such that no greater power is in fact exercised than the words employed by the legislature permit. As noted by French J (as His Honour then was) in Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403 at 433: Australia is a liberal democracy with a broad tradition of at least nominal resistance to encroachment upon established rights and freedoms. That view is reinforced by its adherence to the International Covenant on Civil and Political Rights, which relevantly provides in Art 17, inter alia, that: "No-one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence ..." The nature of this society, and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of the Parliament must be respected. Legislation, it has been accepted, will not be construed so as to deprive a person of an important common law right, privilege or immunity, if otherwise available, " unless a legislative intent to do so clearly emerges, whether by express words or necessary implication ": A v Boulton [2004] FCAFC 101 at [54] , [2004] FCAFC 101 ; 136 FCR 420 at 434 per Kenny J (Beaumont and Dowsett JJ agreeing).
Case: Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252
Outcome: cited
reasonableness of the period of time within which production is required is to be determined objectively by the Court in the light of the surrounding circumstances: cf Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 at 258. Nagle J there concluded: ... the question for consideration by the Court is an objective one and does not depend on the subjective views of the Commissioner. To adopt a contrary view would give rise to such a Draconian situation as to demand the clearest and most explicit words in s 264, and this I do not find. See also: McVey v Commissioner of Pay-roll Tax (Vic) [1985] HCA 73 ; (1985) 85 ATC 4 ,131 at 4,137 per Kaye J. The objective surrounding circumstances would include the breadth of each particular notice and (perhaps) the need for a recipient to construe the terms of a notice; the classes of documents required to be produced; the apparent ability of the recipient to collate and thereafter produce the documents; the time of the year at which a notice is served and intervening disruption to business activities by reason of public or religious holidays; whether there has been a prior attempt to require the production of the same or similar documents; and the time in fact allowed. Some consideration could also be given to the amount of time an examiner thought appropriate; although that consideration would not be decisive.
Case: Elias v Pasmore [1934] 2 KB 164
Outcome: cited
degree of care with which provisions such as s 22 have been drafted is obvious. At common law, for example, a police officer who was lawfully upon premises had a limited ability to seize that which he believed was evidence of a crime: Elias v Pasmore [1934] 2 KB 164. It was said that " the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone ": [1934] 2 KB at 173. Other decisions limited this power to seize to only those materials which implicated the occupier in the same offence as that for which an arrest was being made or the seizure of those documents which implicated some other person in the same offence as that for which a search warrant had been issued: Ghani v Jones [1970] 1 QB 693 at 706; Butler v Board of Trade [1971] Ch 680 at 691; G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 at 644 to 645; Adamson v Noall [1967] VR 105 at 115. Whatever be the extent of the power conferred at common law, s 22(7) now confers the following power: Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he or she believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, the person may seize the thing and, if he or she does so, the thing shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant. The concern of those drafting the Act was to ensure that the power of the Commission and its officers was clear. That which will require clarification in the future are the rights of those against whom the power is invoked.
Case: Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187
Outcome: cited
gravity of the consequences that may flow from non-compliance with a notice, it is considered, is a factor relevant to determining the degree of specificity required: cf Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 208 per Hill J. Section 264 of the Income Tax Assessment Act 1936 (Cth) likewise employs different language to that employed by s 29 of the 2002 Act. Section 264 authorises, subject to its terms, a notice to be given by the Commissioner requiring a person " to furnish him with such information as he may require ... ". Gibbs ACJ said that " (t)o be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 525. Difficulty confronting a person in properly construing a notice is not sufficient to render a s 264 notice invalid. Mason J referred to the expression found in s 264(1)(b) " relating thereto " and continued at 537: It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty. The existence of this hazard is not a sufficient basis for the conclusion that the section requires the Commissioner to give a notice in such terms as would enable the recipient on reading it and on examining the documents in his custody or control to determine whether they fall within the ambit of the Commissioner's powers. To so hold would be to impose an impossible burden on the Commissioner. A notice which is valid under s 264 may thus be " of considerable breadth ": Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 193 per Hill J. His Honour there further observed that the validity of a notice should not be " approached carpingly by engaging in a narrow analysis of each word in an attempt to find some latent ambiguity in it ": (1989) 25 FCR 187 at 208.
Case: F H Faulding &amp; Co Ltd v Commissioner of Taxation [1994] FCA 1492 ; (1994) 54 FCR 75
Outcome: cited
similar observation has been made in respect to s 264: F H Faulding &amp; Co Ltd v Commissioner of Taxation [1994] FCA 1492 ; (1994) 54 FCR 75. Cooper J there observed at 126: The fact that compliance with the notice will be onerous or in the end result may be impossible and thereby expose the taxpayer to a sanction, will not of itself impose any limitation on the use of the power. Considerable reservation may be expressed as to whether a notice would be authorised by s 29 if it was deliberately drafted with such a breadth of language and such a short period of time permitted for compliance that it was either known or suspected by the examiner to be impossible of compliance. There may be circumstances in which a large number of documents may be required within a comparatively short period of time. Time may not be a luxury that those administering the 2002 Act may, in some circumstances, possess. But where a large number of documents are sought within a short period of time and where allowing greater time is possible, the specification of an arbitrarily short time for compliance may reflect upon the reasonableness of the exercise of the power or the good faith with which it has been exercised. In the present proceedings, there is a need to differentiate the December 2008 notices and the later ones issued in January 2009. On the face of the December 2008 notices, there is little (if any) reason to question the limited amount of time provided for compliance. The task may have been potentially onerous, but the time for compliance does not otherwise appear unreasonable.
Case: G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635
Outcome: cited
degree of care with which provisions such as s 22 have been drafted is obvious. At common law, for example, a police officer who was lawfully upon premises had a limited ability to seize that which he believed was evidence of a crime: Elias v Pasmore [1934] 2 KB 164. It was said that " the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone ": [1934] 2 KB at 173. Other decisions limited this power to seize to only those materials which implicated the occupier in the same offence as that for which an arrest was being made or the seizure of those documents which implicated some other person in the same offence as that for which a search warrant had been issued: Ghani v Jones [1970] 1 QB 693 at 706; Butler v Board of Trade [1971] Ch 680 at 691; G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 at 644 to 645; Adamson v Noall [1967] VR 105 at 115. Whatever be the extent of the power conferred at common law, s 22(7) now confers the following power: Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he or she believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, the person may seize the thing and, if he or she does so, the thing shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant. The concern of those drafting the Act was to ensure that the power of the Commission and its officers was clear. That which will require clarification in the future are the rights of those against whom the power is invoked.