Case: Health Insurance Commission v Freeman (1998) 158 ALR 267
Outcome: cited
The width of the meaning of the words 'in connection with', and the fact that they signify a relationship between one thing and another, was recognised by Barwick CJ (with whom McTiernan, Windeyer and Owen JJ agreed) in Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 at 165, Beazley and Tobias JJ in Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 at [68] , Burchett and Marshall JJ in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (per Burchett J at [15]-[17], Marshall J agreeing with respect to this issue at [53]), the Full Court of the Federal Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275. 51 So, in answering the two questions I posited before: 1. To the extent that the decision of the first respondent to obtain a search warrant was a decision to which the Act applied (and I shall consider this point shortly in my judgment) there appears no dispute that the search warrant relates to events the subject of charges the applicant is currently facing in the courts. In this respect, it would appear that the decision of the first respondent to obtain the search warrant is a 'related criminal justice process decision', within the meaning of s 9A(4)(a)(i) or (iii), with respect to the offences for which the applicant is currently facing prosecution, in that the decision of the first respondent to obtain the search warrant was 'in connection with' the investigation, or more obviously 'in connection with' the issue of a search warrant. The first respondent sought a search warrant to search the premises of the applicant; it appears that the applicant was charged with criminal offences on the basis of the evidentiary material obtained during the execution of the search warrant. The 'relationship' or 'connection' is stark. (I note that the fact that obtaining a search warrant and seizing material pursuant to it is conduct 'in connection with' an investigation was also the view of the Full Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 277.) 2. It therefore also follows that the application of Mr Gant is 'in relation to' a related criminal justice process decision for the purposes of s 9A. 52 In light of these principles, prima facie s 9A(1) applies and excludes the jurisdiction of the Federal Court to review the decision of the first respondent in relation to its decision to obtaining the search warrant which was issued by the second respondent. 53 However the applicant has submitted, inter alia , that the Court has discretion to determine whether search warrants are obtained with due process and that the Court also has discretion to determine whether the applicant's challenge to the process resulting in the search warrant was a delaying tactic or unmeritorious. In my view these submissions reflect a complete misunderstanding of s 9A ADJR Act and the policy behind it. Section 9A is framed in absolute terms. Where the conditions specified in s 9A(1) are satisfied as in my view, they are in the case before me the section states unequivocally that the Court has no jurisdiction to hear an application of the kind brought by the applicant. To express it more simply, there is no discretion in the Federal Court to review a decision to obtain a search warrant where the applicant is a defendant to a prosecution which relates to that decision before a Court, and the applicant after the commencement of the prosecution seeks review of that decision. 73 As I noted earlier in this judgment, a reviewable decision under the ADJR Act is, inter alia , a decision of an administrative character made under an enactment. There appears to be no doubt that a decision to issue a search warrant is a reviewable decision. Authority also indicates that: &#8226; A decision to seize material in the course of execution of a search warrant is reviewable under the ADJR Act: Drummond J in Harts Australia Limited v Commissioner, Australian Federal Police [2001] FCA 175 at [22] . &#8226; A decision to apply for a warrant may be reviewable under the ADJR Act, or if not under that legislation then under s 39B Judiciary Act . This was the view taken by Finkelstein J in Wilhelm v McKay [2005] FCA 792 at [7] (although the issue was specifically not decided by the Full Court in Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255, at 274). &#8226; Although this case did not consider an order of review, the Full Court was prepared to entertain an application with respect to 'obtaining' a search warrant and seizing documents pursuant to that search warrant in Health Insurance Commission v Freeman .