Case: Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175
Outcome: followed
In Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at [235] and [236], Hely J said: "The applicants contend that the onus of proving the warrants were lawfully issued falls upon ASIC. Reliance was placed upon the decision of Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (Vic) (No 2) (1994) 49 FCR 541. Heerey J said (at 543): 'Generally speaking, administrative acts are presumed to be valid and the onus is on the party seeking to challenge them: ... However, here we have a rather special situation of an entry on premises and removal of documents without the consent of the owner of the premises and documents. Without lawful justification, such conduct would constitute a trespass. In substance, this proceeding has been concerned with the legal justification advanced by the respondent for that action. Where the exercise of executive discretion interferes with liberty or property rights, once the person affected has shown a prima facie case the burden of justifying the legality of the decision is on the executive: R v Secretary of State for Home Department; Ex parte Khawaja [1982] UKHL 5 ; [1984] AC 74 at 112 per Lord Scarman.' I agree that once the applicants show an invasion of their property or premises by ASIC, the onus is upon ASIC to adduce evidence, and to persuade the trier of fact that its invasion of what would otherwise be the applicants' rights was undertaken with lawful justification. But ASIC discharges that onus by the production of the search warrants, and by demonstrating that its actions were within the scope of the authority conferred by the warrants. If the applicants wish to challenge the issue of the warrants on administrative law grounds, then the onus is on them to make good that challenge. This result is consistent with the decision of the Full Court in Malubel [Pty Ltd] v Elder [(1998) 88 FCR 242] at 249 where the Court held that the issue of a warrant is an administrative act, and steps taken pursuant to it may be presumed to be valid unless and until the warrant is set aside. The observations of Gummow J in Ousley v The Queen [(1997) [1997] HCA 49 ; 192 CLR 69] at 130-131 are to like effect." (The emphasis is mine.) This approach was approved by Branson J in Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520 at [85] and [86]. (And see X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at [22] per Finn J.) Like Branson J, I think it "the correct approach". 20 The Commission has discharged the onus described by Hely J. The warrant was adduced into evidence by Ms McClure's affidavit, and the notice by Mr Andrew's affidavit. Further, it is not the applicant's case that the Commission's actions were outside the scope of the authority conferred by the warrant and the notice. The applicant's case is described at [24] and [46]. 21 Section 3F of the Crimes Act relevantly provides: "(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting: ... (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 ...." The expression "evidential material" is defined in s 3C as "a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form". The expression "a thing relevant to an indictable offence" is defined in s 3 as: "(a) either of the following: (i) 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; (ii) anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, 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 emphasis is mine.) 22 Section 3K relevantly provides: "(1) The executing officer or constable assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant. (2) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if: (a) both of the following apply: (i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; (ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material ...." (The emphasis is mine.)