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Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133 (17 February 2020)

Last Updated: 17 February 2020

FEDERAL COURT OF AUSTRALIA

Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133

File number:




Judge:




Date of judgment:
17 February 2020




Catchwords:
ADMINISTRATIVE LAW – application for judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and relief under s 39B of the Judiciary Act 1903 (Cth) regarding the issue of a search warrant under s 3E of the Crimes Act 1914 (Cth) (Crimes Act)



CRIMINAL LAW – practice and procedure – search warrant – where applicant claimed that the warrant was invalid as it did not comply with ss 3E(1), 3E(5)(a) and (c) of the Crimes Act – where the applicant claimed the conditions of the warrant did not meaningfully limit the scope of the search authorised by the warrant – interpretation of s 73Aof the Defence Act 1903 (Cth)



CONSTITUTIONAL LAW – implied freedom of communication on governmental and political matters –where warrant issued pursuant to s 3E of the Crimes Act – where warrant authorised search for certain evidential material at the premises of the Australian Broadcasting Corporation – where validity of underlying offence provisions not challenged – whether the decision to issue this warrant was ultra vireshaving regard to the implied freedom of political communication



EVIDENCE – whether witness qualified to express opinion – where the applicant claimed journalist privilege under s 126K of the Evidence Act 1995 (Cth) extends to seizure of material under a search warrant issued under s 3E of the Crimes Act – where applicant claimed privilege in relation to specific documents


 
Legislation:
 


 
Cases cited:
 
 
 


 
Date of hearing:
28 October 2019, 29 October 2019




Registry:
New South Wales




Division:
General Division




National Practice Area:
Federal Crime and Related Proceedings




Category:
Catchwords




Number of paragraphs:
387




Counsel for the Applicant:
Dr M Collins QC with Mr M Polden and Mr M Hosking




Solicitor for the Applicant:
Australian Broadcasting Corporation, Legal Department




Counsel for the First Respondent:
The First Respondent filed a submitting notice, save as to costs




Counsel for the Second and Third Respondents:
Mr N Williams SC with Ms C Winnett and Ms A Hammond




Solicitor for the Second and Third Respondents:
Australian Government Solicitor






ORDERS



NSD 989 of 2019


BETWEEN:
AUSTRALIAN BROADCASTING CORPORATION

Applicant
AND:
MARTIN KANE

First Respondent



COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Second Respondent



AGENT IAN BRUMBY OF THE AUSTRALIAN FEDERAL POLICE

Third Respondent
JUDGE:
ABRAHAM J
DATE OF ORDER:
17 FEBRUARY 2020





THE COURT ORDERS THAT:

  1. The application is dismissed.
  2. The applicant is to pay the costs of the first, second and third respondents as agreed or taxed.
















Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.




REASONS FOR JUDGMENT

ABRAHAM J:

  1. By its originating application (OA) dated 24 June 2019, as amended by leave, the applicant, the Australian Broadcasting Corporation (ABC), challenges a warrant issued pursuant to s 3E of the Crimes Act 1914 (Cth) (Crimes Act) (the warrant) on 3 June 2019, to Agent Ian Brumby of the Australian Federal Police (AFP). The warrant, which authorised a search for certain evidential material at the premises of the applicant, was executed on 5 June 2019 and material was seized.
  2. The application seeks, inter alia, declarations that the search warrant is invalid and that the search and seizure of material pursuant to that warrant was unlawful, and that Agent Brumby and other AFP agents are not entitled to examine the material seized; an order that the material seized be returned; and an injunction restraining anyone at the AFP from dealing with the material seized in any way.
  3. The application relied on nine grounds in support of the relief sought and whilst some of these grounds were ultimately not pressed, those that remained were categorised by the parties into four heads of challenge to the validity of the warrant: (1) that the proper construction of s 3E of the Crimes Act does not authorise the issue of a search warrant in circumstances that disproportionately burden the implied constitutional freedom of discussion of government and political matters (paragraph [18A] OA); (2) challenges on the face of the warrant, that it did not comply with ss 3E(1), 3E(5)(c) and 3E(5)(a) of theCrimes Act (paragraphs [19], [20] OA); (3) that the warrant misdescribed the offences in s 73A(1) and (2) of the Defence Act 1903 (Cth) (Defence Act) so as to amount to a failure to comply with ss 3E(1) and 3(5)(a) of the Crimes Act (paragraphs [21], [22] OA); and (4) that the decision by the AFP to seek the warrant and the Registrar’s decision to issue the warrant were legally unreasonable (paragraphs [23], [24] OA).
  4. For the reasons given below each of the four heads of challenge fails.

Factual background

  1. This chronology of events is taken from the Statement of Agreed Facts and Issues (Agreed Statement) filed by the parties and the evidence given in the proceedings.
  2. On 11 July 2017, at approximately 6.02 am, the ABC published a series of online stories by ABC employees Mr Daniel Michael Oakes and Mr Sam Clark entitled “The Afghan Files” on its website (Afghan Files Stories). The contents of each of those online stories were updated later that same day, and again on 14 and 15 July 2017. The Afghan Files Stories reported on, inter alia, the operations of the Australian Defence Force (ADF) in Afghanistan. Preceding these stories, on 10 July 2017, the ABC broadcast an episode of its program 7.30 entitled “Afghan veteran raises disturbing allegations over the killing of civilians in Afghanistan” (7.30 Episode). Mr Oakes and Mr Clark were also the authors of this 7.30 Episode. The Afghan Files Stories made reference to documents described as “the Afghan Files”, being “[h]undreds of pages of secret defence force documents leaked to the ABC”, including documents with the security classification “SECRET” (to be used when compromise of the confidentiality of information could be expected to cause serious damage to national security, the national interest more broadly, or serious damage to organisations or individuals), and the caveat “AUSTEO” (meaning access permitted to the information was limited to Australian citizens who hold the appropriate security clearance). In preparing the Afghan Files Stories, Mr Oakes and Mr Clark relied on information provided to Mr Oakes by informants in circumstances where Mr Oakes had promised not to disclose the informants’ identity. The Afghan Files Stories stated that they were based upon information provided by such sources.
  3. The AFP commenced an investigation in connection with the Afghan Files Story (AFP Investigation).
  4. On 5 September 2018, Mr David William McBride was charged with theft contrary to s 131.1 (1) of the Criminal Code 1995 (Cth) (Criminal Code), which is said to relate to this AFP Investigation. On 30 October 2018, Mr McBride entered a plea of not guilty to this charge. Mr McBride was between 2005 and 2009 a commissioned officer in the Australian Army Reserve, and from 2009 to 2017 a commissioned officer in the Australian Regular Army. Between June 2008 and May 2016 Mr McBride held a security clearance which permitted him access to documents classified as SECRET.
  5. On 13 September 2018, the AFP requested that three ABC employees, Mr Oakes, Mr Clarke and Mr Gavan Morris (Director of News, Analysis and Investigations) participate in interviews or assist with the AFP Investigation, which they refused on 4 October 2018.
  6. On 24 January 2019, the AFP contacted the ABC about the possibility of conducting a search of the ABC’s premises. This involved oral and written communication between Agent Brumby and Mr Michael Rippon, solicitor employed by the ABC. This involved, inter alia, the AFP informing the ABC that they were at a point where they would seek a s 3E warrant to be served on the ABC, and requesting the ABC’s agreeance to a manner in which it might be executed to create minimal interference with the ABC. The AFP proposed, if the ABC agreed to provide assistance as required by a warrant, that a copy of the warrant be served on the ABC and they be given 2 to 3 weeks to gather the material and when they had done so, the AFP would attend its premises, provide the sworn warrant and obtain the material sought under it. The ABC declined the proposal.
  7. On 7 March 2019, Mr McBride was charged with two further offences: unlawfully giving information as to defences, contrary to s 73A(1) of the Defence Act; and unlawfully disclosing a Commonwealth document contrary to s 70(1) of the Crimes Act.
  8. On the same day, an article was published by the Canberra Times newspaper about the prosecution of Mr McBride which referred to him admitting to handing over documents to journalists, including at the ABC, but that he would defend what he had done on legal grounds. This was one of various media outlets that reported during March, May, June and July 2019 that Mr McBride made public statements concerning the allegations against him.
  9. On 1 April 2019, the AFP requested that two ABC employees, Mr Oakes and Mr Clarke, provide copies of their fingerprints and palm prints.
  10. On 30 May 2019, Mr McBride pleaded not guilty to the additional offences with which he is charged (as above at [11]) and on that day he was committed to stand trial in relation to the charges described at [8] and [11] (the McBride Proceedings).
  11. On 31 May 2019, a further article was published by the Canberra Times newspaper about the prosecution of Mr McBride which again referred to him admitting to handing over documents to journalists, but defending what he had done on legal grounds.
  12. On 3 June 2019, Registrar Kane, employed in the Local Court of New South Wales, issued the warrant on the application of Agent Brumby. The warrant authorised Agent Brumby, or a constable assisting him, to enter the ABC's premises in order to search for specified classes of things that there were reasonable grounds for suspecting would afford evidence as to the commission of identified offences by Mr McBride and Mr Oakes. The identified offences in relation to Mr McBride were those with which he had been charged. In relation to Mr Oakes the offences were unlawfully obtaining military information, contrary to s 73A(2) of the Defence Act, and dishonestly receiving stolen property from Mr McBride, contrary to s 132.1 of the Criminal Code.
  13. On 4 June 2019, Agent Brumby emailed the ABC the first two conditions in the warrant. On 5 June 2019, at the request of the ABC, prior to the search, Agent Brumby emailed the third condition of the warrant.
  14. On 5 June 2019, approximately one hour later, Agent Brumby executed the warrant on the premises of the ABC and material was seized pursuant to that warrant. During the execution of the warrant, legal representatives and counsel for the ABC were involved in discussions with the AFP. Counsel for the ABC stated at the outset that they wished to preserve its position as to the validity of the warrant. The warrant was carried out in one conference room where an ABC employee operated a computer (initially a laptop and then a larger screen), overseen by the AFP, predominately Agent Brumby. There were refinements to the searches made as the AFP eliminated a large group of documents as not satisfying the terms of the warrant. The ABC’s legal representatives were permitted to make observations about whether particular documents fell within the scope of the warrant. Documents possibly attracting legal professional privilege were placed in a separate electronic folder. At the conclusion, the materials the AFP proposed to seize were transferred to two USB sticks, which were then sealed. The ABC was given a printed list of the documents. One hundred and twenty four documents were seized, including duplicates. Apart from what occurred in the conference room, no other search was conducted. A mutual undertaking was agreed to the effect that the AFP would not disclose or act upon any seized materials for a certain period of time to permit review of the seized documents by the ABC for the purpose of it making particular claims in relation to the documents.
  15. On 13 June 2019, the Guardian published an article about the McBride Proceedings, with statements in the article being attributed to Mr McBride, noting that Mr McBride did not dispute leaking the material but that he intended to argue he was acting on his duty to report illegal conduct by the government.
  16. On 24 June 2019, the ABC instituted proceedings in this Court, supported by an affidavit of Michael Antony Rippon affirmed 24 June 2019, applying for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 5of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of the challenge and the orders sought have, with leave of the Court, been amended on a number of occasions since the application was first filed. Attached to these reasons, marked as Annexure A is the version of the originating application which proceeded to hearing (the underlining representing amendments made since the original application).
  17. On 18 July 2019, a video (and/or transcript of a video) was uploaded to the website of the Gold Coast Bulletin which was said to be an interview with Mr McBride in which he is quoted as stating: “I’ve already admitted I gave the documents...it was my duty to do so because the government was breaking the law and my duty is to the people of Australia, not to the government”.
  18. On 8 August 2019 the Commonwealth Director of Public Prosecutions filed an indictment in the McBride Proceedings alleging five counts, with an amended indictment filed on 16 October 2019 (which did not relevantly change the charges).
  19. On 18 December 2019, the Court was informed, by way of email from the parties to chambers, of the following:
Dear Associate

The respondents wish to draw the Court’s attention to the fact that the matter of R v David William McBride (SCC0127/19) has now been listed for a trial of 10 days, commencing on 2 March 2020.

The parties agree that the fact of the listing has no impact on the substantive issues to be determined in this proceeding. However, given the interconnection between the two proceedings, and the previous indications of likely trial dates that have been provided to the Court, the respondents considered that it was appropriate to inform her Honour of this development.

The applicant has also requested that we bring the following matters to the attention of the Court:
  1. A joint statement of facts has been filed in the McBride proceeding, which has narrowed the issues in dispute in that proceeding, which the applicant understands to have the consequence that the alleged production of documents by Mr McBride to journalists will not be a matter contested at trial.
  2. The matter of Smethurst & Anor v. Commissioner of Police & Anor proceeded for hearing before the High Court of Australia on 12 and 13 November 2019. During the hearing of that matter, part of the oral argument before the Court was focused on the requisite precision for the drafting of search warrants. A decision has not yet been handed down in that matter.
  3. There has not been any suggestion or request that my decision be delayed pending the High Court judgment. I note that Smethurst & Anor v. Commissioner of Police & Anor (S196/2019) was a matter referred as a Special Case to the High Court and, while I am not aware of all the details, it relates to a different warrant, in different terms, involving a different offence provision. I am mindful that proceedings of this nature (a challenge to the validity of the issue of a search warrant which has been executed) involving criminal investigations should ordinarily be dealt with as expeditiously as appropriately possible.
  4. Mr Kane, the first respondent in these proceedings, has filed a submitting appearance (save as to costs). The reference hereafter in these reasons to “the respondents’ submissions” only refers to the Commissioner of the AFP (the second respondent) and Agent Brumby (the third respondent).

Preliminary observations

  1. Before considering the evidence led and the specific arguments and issues raised by this application, it is appropriate to make a number of general observations.
  2. First, this application for judicial review alleging invalidity of the warrant based on the application for and issue of the search warrant, is to be determined as at the time of those events: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 (Williams v Keelty) at [157] per Hely J. Events that occurred thereafter cannot bear on those issues. The applicant has not challenged the execution of the warrant. However, in the event that the applicant succeeded in establishing any of the grounds argued, the manner in which the warrant was executed could be relevant to the discretion as to whether the material seized should be returned: Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 (Caratti (No 2)) at [461] per Wigney J.
  3. Second, the warrant is in the three condition format, as approved in Dunesky v Elder [1994] FCA 1569; (1994) 54 FCR 540 (Dunesky v Elder) at 557 per Lockhart, Beaumont and Hill JJ, by which the necessary threshold of the dual suspicions referred to in s 3E(1) of the Crimes Act, as to the presence of evidence at the premises sought to be searched having the capacity to prove the commission of an offence, are sought to be established by referring to: (1) things proposed to be searched for; (2) persons, entities or topics that those things relate to; and (3) offences that such things will afford evidence of: Australian Broadcasting Corporation v Kane [2019] FCA 1716 (ABC v Kane) at [13] per Bromwich J.
  4. Relevantly the warrant is in the following terms:
Whereas I [Martin Kane] an issuing officer within the meaning of section 3E of the Crimes Act 1914, am satisfied by information on oath that there are reasonable grounds for suspecting that there is (or will within the next 72 hours be) at the premises located at:

[ABC’s premises]

evidential material, as defined in the Crimes Act 1914, which satisfies ALL of the following three conditions namely:

First condition: Things which are:

originals or copies of any one or more of the following, including any of them which are stored on a computer, or on a computer storage device, or on any other type of storage medium or storage device:
  • Handwritten/digital notes
  • Diary/ies
  • Correspondence - internal and external
  • Emails and other electronic forms of messaging
  • Minutes
  • Reports
  • Briefing Documents
  • Assessments
  • Graphics, sketches, photographs or imagery/vision - drafts and final
  • Story pitch
  • Planning logs
  • Broadcast and online schedules
  • Raw or unedited footage in its entirety
  • Journalist's piece to camera
  • Scripts - drafts and finals including voice overs
  • Story boards/plans
  • Status updates
  • Website content
  • Documents classified as 'Secret'
Together with any manual, instruction, password or other thing that assists to gain access to or interpret or decode any of the above things.

Second condition: And which relate to any one or more of the following:
  • David McBRIDE
  • Daniel (Dan) OAKES
  • Samuel (Sam) CLARK
  • Gaven MORRIS
  • Chris SMITH
  • Australian Broadcasting Corporation (ABC)
  • National Reporting Team
  • Australian Defence Force (ADF)
  • Department of Defence
  • The Australian Army
  • Special Forces
  • Special Operations Command (SOCOMD)
  • Special Operations Task Group (SOTG)
  • Special Air Service Regiment (SASR)
  • 2nd Commando Company (2CDO)
  • Headquarters Joint Operations Command (HQJOC)
  • Operation SLIPPER
  • Afghanistan
  • The 7. 30 Report
  • The Afghan Files
  • Inside the Afghan Files
  • Rules of Engagement
  • The Ops Room
  • Ghost Three Zero
  • Chief of the Defence Force (CDF)
  • Acting (and/or) Secretary of Defence
  • Chief of Army (CA)
  • Chief of Joint Operations (CJOPS)
  • http://theopsroom.com
  • https://www.abc.net.au/news/2017-07-11/inside-the afghan-files/8696182
  • https://www.facebook.com/abcnews.au/videos/inside-the-afghan­ files/10156950722999988/
  • https://www.abc.net.au/7.30/afghan-veteran-raises-disturbing-allegations­ over/8695400
  • https://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by­ australian-special-forces/8466642
  • https://www.abc.net.au/news/2017-07-11/defence-inquiry-investigating­ killing-of-taliban-detainee-in-hut/8616602
  • https://www.abc.net.au/news/2017-07-11/unarmed-men,-children-among­casualties-of-elite-forces/8424944
  • https://www.abc.net.au/news/2017-07-11/the-spy-and-the-sas-solider-with-a­ loaded-glock/8496608
  • https://www.abc.net.au/news/2017-07-11/afghan-files-australias-secretive­ rules-of-engagement/8496672
  • https://www.abc.net.au/news/2017-07-11/afghan-files-shed-light-on­ notorious-severed-hands-case/8496654
  • https://www.abc.net.au/news/2017-07-11/relations-between-australias­ specia1-forces-units-unhealthy/8496616
Third condition:

And as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following indictable offence(s) against the laws of the Commonwealth:
Between 14 April 2016 and 1 October 2016, David William McBride gave Daniel Michael Oakes military information, contrary to section 73A(l) of the Defence Act 1903 (Cth).

Between 14 April 2016 and 1 October 2016, Daniel Michael Oakes unlawfully obtained military information, contrary to section 73A(2) of the Defence Act 1903 (Cth) .

Between 1 March 2013 and 20 December 2014, David William McBride stole property belonging to the Commonwealth, contrary to section 131.1(1) of the Criminal Code Act 1995 (Cth).

About Between 14 April 2016 and 1 October 2016, Daniel Michael Oakes dishonestly received stolen property from David William McBride, knowing or believing that the property was stolen, contrary to section 132.1 of the Criminal Code Act 1995 (Cth).

About 1 May 2016, David William McBride unlawfully disclosed a fact or document which came into his knowledge by virtue of him being a Commonwealth officer, contrary to section 70(1) of the Crimes Act 1914(Cth).
  1. Third, it is clear from the third condition that the offences identified are reciprocal, they relate to the giving and receiving of information. The offences are not directed to the publication of the information, although the publication of the Afghan Files Stories may be capable of being evidence in proof of the offences. It follows, that the limited material before the Court, which includes what was published as the Afghan Files Stories, is not the source material or information the subject of the offences in the warrant. As noted above, from the publications, the Afghan files themselves are described as being comprised of hundreds of pages of secret defence documents. The third condition is directed to material that will afford evidence as to the commission of the identified offences. That concept encompasses material much broader than the documents provided.
  2. Fourth, Mr McBride has identified himself in the media as a person who leaked documents to the ABC, the Sydney Morning Herald and Chris Masters. His identity is therefore no longer confidential. However, in so far as the applicant relied on the statements of Mr McBride (in particular in relation to the unreasonableness grounds), the rules of evidence ordinarily would not permit media reporting of an asserted fact to constitute admissible evidence of that fact, “let alone be a satisfactory means of determining the metes or bounds of any such admission or its capacity to prove any element of a criminal charge”: ABC v Kane at [9]. That the applicant states it now understands that the alleged production of documents by Mr McBride to journalists will not be a matter contested at his trial is not relevant to the question of the validity of the warrant. In any event, material as to which there are reasonable grounds for suspecting will afford evidence of the commission of the offences is plainly not confined to documents that were provided by him. It is not difficult to imagine the potential breadth of the material which might potentially fall within that category and which might address other aspects of the charges already laid. Moreover, the identified offences in the third condition are not confined to Mr McBride.
  3. Fifth, prior to the hearing the applicant abandoned its challenge to the validity of s 73A(2) of the Defence Act (which was claim 1A and detailed in paragraph [22A] OA), which asserted that the provision was invalid because it infringed the implied freedom of political communication, at least in so far as it purported to apply to the conduct of Mr Oakes in relation to the information provided to him and publication of the Afghan Files Stories. The remaining arguments therefore must be considered in the context where the applicant is not contending that s 73A is invalid and, in particular, not contending that the implied freedom of political communication renders it invalid (or requires the provision to be read down), as previously alleged. This application proceeds on the basis that the provisions for each of the offences identified in the third condition are valid.
  4. Finally, apart from a submission based on the interpretation of s 73A of the Defence Act, the applicant has not suggested that there was insufficient material before Registrar Kane to enable him to be satisfied of the condition in s 3E(1) that there were reasonable grounds for suspecting that there is, or will be within the next 72 hours, evidential material on the premises in relation to each of the identified offences. The offence provisions are valid, they do not need to be read down to save their validity. It follows that the alleged conduct, if there is an evidential basis to support it, is capable of satisfying those offence provisions.

Evidence

Agreed Statement

  1. Helpfully, the matter largely proceeded by way of an Agreed Statement, which was supported by underlying material. I hasten to add that while the parties agreed the existence of those facts, their relevance, and if relevant their significance, was not agreed. As to relevance, just by way of example, the statements made by Acting Commissioner of the AFP on 6 June 2019 at a Press Conference addressing the warrant and its execution by the AFP, and the Ministerial Direction issued on 8 August 2019 (outlining the Government’s expectations for the AFP in relation to investigative action involving journalists/new media organisations in the context of an unauthorised disclosure of material) are not relevant to any of the issues to be decided. Contrary to the applicant’s submission that, for example, the Ministerial Direction illustrated “declaratory matters” that were “self-evident as at the date of execution of the warrant and were, or ought to have been, self-evident to those who made the decision to seek and issue them” they are statements made after the warrant was sought and issued. They have no relevance to the question of the validity of those decisions at that point in time. Similarly, for the reasons outlined above at [31], the purported admissions of Mr McBride have no relevance to that issue.
  2. It is unnecessary to recite all the details of the Agreed Statement, suffice to say the topics covered the ADF, the ABC, the publications referred to as the Afghan Files Stories, the McBride Proceedings, the AFP Investigation, the warrant, and the protection of sensitive defence information.
  3. Given the extent of the applicant’s reliance on it, I note in particular, the details in the Agreed Statement concerning the ABC, its Code of Practice and various other ABC policy documents, which set out principles and standards for the ABC and its employees, and the consequences of failing to comply. The Agreed Statement details, amongst other things, that:
Journalists rely on information provided to them by sources who have provided that information on [the] condition that their identity will be kept confidential.

...

In some circumstances, if the identity of a source of significant information were to be revealed, the source may be at risk of various types of harm to reputation, livelihood, property or person. Those close to the source, such as family members, may also be at risk. If sources who reveal information that serves a significant public interest face ramifications of those or other kinds, they and other actual or potential sources may be deterred from providing information in future.
  1. Among other things, an ABC Guidance Note entitled “Attribution/Anonymity of Sources” states that a basic rule of journalism is to protect the identity of sources when committed to do so; that any failure to uphold the rule can result in serious potential costs in loss of trust and reduced information flow, both from the source affected and from other potential sources who may be deterred; and sets out ways in which journalists employed by the ABC must strive to maintain the protection of confidential sources. Reference is also made to the Media, Entertainment and Arts Alliance (MEAA) and a Journalist Code of Ethics, the MEAA Code of Ethics (MEAA Code), it has adopted. Among other things, the current version of the MEAA Code: requires journalists who are members of the MEAA to apply the following standard: “Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances”; and contains a “Guidance Clause”, which states: “Basic values often need interpretation and sometimes come into conflict. Ethical journalism requires conscientious decision-making in context. Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden”.
  2. As noted above, the Afghan files were comprised of a number of ADF documents including documents security classified as SECRET, and with the caveat AUSTEO. The process by which such classifications are determined, the circumstances in which they are so marked, their meaning and the consequences of the compromise of the information are detailed in the Agreed Statement. This includes the following:
Unauthorised disclosure of defence information contrary to the requirements of the information security framework established by the Commonwealth under the PSPF and Defence under the DSM (defence information disclosures) may undermine the ADF’s ability to respond to threats and conduct successful missions. Disclosing defence information such as operational plans, techniques, tactics and procedures may diminish the effectiveness of those resources. Disclosure of such information may also expose Defence personnel to an elevated risk of harm.

Defence information disclosures may also harm Australia’s relationships with allies and coalition members. A demonstrated inability to maintain the secrecy of certain types of defence information may reduce the willingness of those countries to share information with Australia.

A reduction in information-sharing by Australia’s military partners may hinder the ADF’s ability to plan for and respond to threats to Australia’s national security, to defend Australia from armed attacks, and/or to participate effectively in joint operations.

In determining whether a defence information disclosure may have the effects described at [111] to [113] above, it is relevant to consider the nature of the information and the circumstances of disclosure.
  1. Similarly, the Agreed Statement specifically addressed the Rules of Engagement (ROEs) which were described as directives issued to the ADF by the Chief of the ADF, in consultation with the Australian Government which regulate the use of force and activities connected with the use of force by the ADF. The unauthorised disclosure of ROEs for operations in which Australia has a current involvement or for concluded operations which current ROEs substantially replicate, contrary to the requirements of the information security framework established by the Commonwealth under the Protective Security Policy Framework and the ADF under the Defence Security Manual v 5, may increase the likelihood that the ADF’s adversaries will ascertain the precise terms of current ROEs. The Agreed Statement noted that if information about how ADF forces will operate during a mission is available to an adversary, that adversary may be more effective in combat with the ADF, as it may be able to adjust its strategy and operations in light of that information. For these reasons, the Agreed Statement outlined that the disclosure of ROEs may: diminish the effectiveness of ADF tactics, techniques and operations; impede the success of ADF missions; may undermine the ADF’s defensive capacity abroad and in Australian territory; and/or physically endanger ADF members, increasing their risk of injury or death. The Agreed Statement notes that in determining whether a disclosure may have those effects, it is relevant to consider the nature of the information and the circumstances of disclosure.

Additional evidence

  1. In addition to the Agreed Statement, there were three witnesses relied on by the parties. At the hearing the applicant relied on two witnesses, Mr Rippon, solicitor for the applicant and Dr Matthew Ricketson, Professor of Communication at Deakin University, and the respondents relied on Lieutenant General Gregory Charles Bilton AM CSC, Chief of Joint Operations, ADF.

Applicant’s evidence

  1. Mr Rippon affirmed an affidavit on 24 September 2019 which primarily dealt with issues of legal professional privilege and source protection claims. At the hearing, Mr Rippon’s affidavit was read, subject to three limitations agreed by the parties. The legal profession privilege issues referred to in the affidavit were resolved prior to the hearing, and the source protection claims, which are the subject of the last ground in this application, have been reduced to 4 documents. That ground will be addressed later in the judgment. Mr Rippon was cross-examined on the execution of the warrant and gave evidence which included that referred to in paragraphs [10], [17] and [18] above.
  2. During the course of Mr Rippon’s cross-examination some documents were tendered which included two emails received by him from Agent Brumby (referred to above in paragraph [17]) and two tweets sent by Mr John Lyons, an ABC employee who was present that day, in relation to the execution of the warrant on June 2019.
  3. Professor Ricketson provided an expert report, dated 24 September 2019, which primarily dealt with journalists’ obligations in protecting confidential sources (particularly in the context of the MEAA Code and the purported impacts of a failure to do so). In particular, the report included opinions about the importance of maintaining source anonymity in the case of informants who work within institutions which deem material to be secret, including military and intelligence services.
  4. As will be explained in greater detail below, the respondents objected to the evidence of Professor Ricketson on the basis that it was irrelevant to this application. This is on the basis that the applicant had “abandoned the constitutional challenge”. While the respondents accepted that the topics of evidence in his report are matters to which admissible evidence might go, they challenged that Professor Ricketson’s report addressed those issues in any admissible manner.
  5. Given, as the respondents contended, even if I accepted their threshold argument in relation to ground 1 it would nonetheless be necessary to address the alternate argument against the possibility that was not the correct position, which may require the determination of factual questions, I provisionally admitted Professor Ricketson’s evidence. In essence, the objections were that: (1) the report does not set out relevant expertise to express the opinion he does (at paragraphs [21], [22] of his report); (2) the recitation of various aspects of the MEAA Code is inaccurate and the document speaks for itself; (3) that the opinions expressed purport to relate to military and intelligence services without any basis identified for his expertise in such matters or basis of the opinion expressed; and (4) that the report is speculative, and based on unspecified hearsay assertions of conversations with unidentified journalists.
  6. The applicant called Professor Ricketson and tendered his report. The aspects of the report principally relied on appear to be as follows (with any errors in the original):
11. The requirement of journalists to protect the identity of confidential sources of information is an important element of the MEAA Code of Ethics, which is available online at https://www.meaa.or g/meaa-medi a/code-of-ethics/. The code applies to journalism in all the news media, including print, broadcast or online. The Walkley awards are the most prestigious prizes in Australian journalism; those entering them are required to affirm that they have abided by the MEAA Code of Ethics in their work.

12. Clause three of the MEAA Code requires that journalists:
Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.
13. The current drafting of this clause is more nuanced than was the original code, which was drafted in 1944. At that stage the Code simply required that a journalist respect all confidences received by him in the course of his calling. The modern clause requires that journalists think carefully before agreeing to keep a source's identify confidential. This change came about because of a recognition that, on the face of it, failing to disclose the identity of a source is contrary to the free flow of information that is central to the role of journalism.

14. The granting of anonymity to sources can be abused as it enables sources to make allegations about people to which that they do not need to put their name. That is why the MEAA, following a review of the code of ethics in the 1990s, considered it necessary to account for and mitigate against the inherent tension between openness and secrecy in the use of confidential sources, as well as addressing the possibility of sources acting in bad faith.

15. The current drafting of the code requires a journalist to consider whether the free flow of information can be achieved without recourse to a source who is unwilling to speak on the record for publication or broadcast. It further requires a journalist consider the source's motives for disclosure before promising to keep their identity confidential.

16. This means that by the time anonymity has been promised the journalist has already made a judgement call that they cannot obtain disclosure without keeping the source's identity secret. In my experience journalists do consider this hurdle imposed by the modern form of the Code. By definition, then, it is reasonable to assume that those disclosures would not have been made without the promise of anonymity.

17. Once the journalist makes the agreement, though, the Code requires them to keep it. This requirement applies even if that means refusing to reveal a source's identity in court proceedings up to and including non-compliance with an order to reveal a source's identity. In my experience, this is a commitment that is taken very seriously and is central to the personal ethical code of the many journalists whose work I have studied and with whom I have discussed the issue over the course of my career.

18. The journalist's agreement to keep a source's identity confidential, even if that means going to gaol for contempt of court, is a powerful tool for journalists aiming to win the trust of source who themselves could be at risk of legal action or losing their livelihood (or in extreme cases their lives) if their identity was known to the people and institutions about whom they disclose information.

19. In the case of informants who are the victims of crime or abuse who work up the courage to disclose information about their abusers, in my experience journalists reporting on these issues consider that it is particularly important that the trust informants show to a journalist is honoured. This is because the journalists consider that to do otherwise would compound the damage that has already been done to these informants' ability to place their trust in others.

20. In the case of informants who work within institutions, including military and intelligence services, and disclose information about failures, real or perceived, in their institutions, in my experience journalists reporting on these issues consider that it is similarly important that the trust informants show to a journalist is honoured. This is because not only of the courage that is required for informants to speak out about problems in their institution but of the consequences of speaking out, which may include being ostracised, demoted, forced to resign or charged with an offence.

21. It is my opinion, based on the many years I have been observing, studying and writing about the theory and practice of journalism, that if these types of informants became aware that a journalist's promise of confidentiality was unreliable, there would be significantly fewer disclosures by victims and other witnesses of crime and abuse.

22. It is my opinion too that the discovery, or the risk of discovery, of an informant's identity through the seizure of documents under a search warrant would have a chilling effect on the willingness of prospective informants to come forward because of the penalties applied to those found to have disclosed to a journalist information that has been deemed by an institution, including military and intelligence services, to be secret. These penalties are included in a number of pieces of legislation.

23. There is an inherent and legitimate tension between freedom of the press and national security. Freedom of the press is a principle exercised by the news media on behalf of the general public, and national security is a principle exercised by governments and law enforcement agencies on behalf of the general public. The tension arises from weighing the merits of these two principles, both of which are valued in the body politic. One does not always outweigh the other but it is difficult to discern which one does, and in what circumstances. There is a need to weigh the public interest importance of the journalism against the importance, or the imminence, of the threat to national security.

24. It is my opinion, based on study and experience, that there have been instances of the news media producing journalism that is not in the public interest, but is instead irresponsible or sensationalist or unethical. It is equally possible to find instances of governments using national security to cloak actions and behaviours that are incompetent or corrupt or illegal. It is a difficult task for parliaments to frame laws that ensure those in positions of power, whether in the news media or in government or law enforcement agencies, are held to account for the actions they take on behalf of the public.

25. It is more difficult when there has been a proliferation in the past two decades of national security laws that preclude almost any public scrutiny and which impose significant penalties on those working within institutions who feel impelled to disclose failings, real or perceived, of the institutions. It is important that there is balance between the strength of laws that protect national security and those that protect freedom of the press and the whistleblowers who make disclosures to the press.
  1. Following the evidence having been provisionally admitted, Professor Ricketson was cross-examined.
  2. While Professor Ricketson stated that all journalists were eligible to be a member of the MEAA, although they might choose not to be, he accepted newspaper editors, and newsroom chiefs are not eligible. While he was unaware of the percentage of working journalists who are members, he gave evidence that he understood that the MEAA still has substantial reach in most major news organisations in this country, and among freelance journalists of whom there is a growing number, ultimately accepting the proposition that those who choose to join the MEAA, are to a degree, a self-selecting group.
  3. Professor Ricketson accepted that the standards that the MEAA Code sets out are subject to a guidance clause, and that the standards can be overridden in particular circumstances. The judgment is that of an individual journalist.
  4. In relation to the enforcement of the MEAA Code, Professor Ricketson gave evidence that since the new journalist code was adopted in 1999, only three MEAA members have been censured or rebuked under the MEAA Code, and no member has been expelled from the MEAA for almost 40 years. Professor Ricketson added that the MEAA is a member of the Australian Press Council, as are most major news organisations in this country, and to an extent it relies on the processes that the Australian Press Council engages to deal with complaints from members of the public and others about journalism that is produced.
  5. Professor Ricketson accepted that, as far as he was aware, decisions in disciplinary matters of the MEAA or summaries of its decisions under the MEAA Code, are not published on the MEAA website. He accepted that the public knowledge of whether, or to what extent, the rules are being enforced is limited by that. Professor Ricketson was also asked if it is a fair criticism, made in the Finkelstein Report, that the complaints process remains largely ineffective, to which he responded that it was a contestable criticism and added there has been “substantial improvement” since that report which was six or seven years old.
  6. In his report, Professor Ricketson said that granting of anonymity to sources can be abused, as it enables sources to make secret allegations. During cross-examination, he accepted that a problem with secret sources is that the source may have an axe to grind and so may leak material selectively; the source may have partial knowledge and be blind to the complexities of the matter on which they’re providing information; the source may actually be acting in bad faith; and secrecy can allow a source to discredit people with little or no accountability. He accepted that journalists routinely grant anonymity to sources far wider than whistleblowers. He accepted that many secret source leaks are, in substance, disguised government media leaks dropped in the lap of selected journalists, and in some of those cases, there might be a greater public interest in knowing who leaked the report than the substance of the report. He accepted that occasions when a journalist has leaked information ranges from the useful through to outright lies.
  7. He accepted that under the MEAA Code the default or standard position is that sources should be attributed but every day “on all manner of stories”, journalists grant sources anonymity. When asked whether journalists often have to grant anonymity before they know what the information is that is to be disclosed, he responded that he would not know for sure, and “not necessarily in my experience and observation”.
  8. He accepted that journalists need to think carefully “before granting anonymity to any old source”. When asked whether it was “very common practice in [the] newsroom, doing just that. That is, granting anonymity to any old source is very common practice in newsrooms today?”, he responded “[w]ithin the context of the great range of the kinds of stories that journalists engage in, some of which are very serious and are matters of national public importance of the kind that are the subject of these – these – this matter, I should say, and others which are the proverbial cat up a tree story, which are of little moment and happen many, many times in many, many newsrooms every day”.
  9. He accepted that sometimes, protecting a source at all costs may promote misleading of the public. He accepted that it was the view of some (and he identified Chris Masters as an example) that where a source has deliberately misled a journalist, it might be appropriate for the journalist not to maintain the confidence. He accepted that Mr Masters, from his observation and that of many others, was highly ethical in his practice of journalism and a highly successful investigative journalist. Professor Ricketson was asked about Mr Masters’ approach to sources and how it was said to be narrower than that of the MEAA Code referring to a book written by him in 2002.
  10. He accepted that sometimes secret sources leak information to silence a whistleblower or critic. He accepted that sometimes journalists fabricate information and claim that the identity of the source can be known only to the journalist and must be kept anonymous, occurs but “pretty rarely”. The respondents drew Professor Ricketson’s attention to an ABC guidance note that addressed this issue, and Professor Ricketson accepted that assurances given in relation to anonymity were not seen by the ABC as an absolute obligation as “there’s a balancing of both interests and of needs”.
  11. Professor Ricketson accepted that he had not published stories that had been given to him by secret sources in the military or the intelligence services; and the military and the intelligence services had not been an area of his journalistic endeavour. When asked about whether he had conducted any interviews with informants about the willingness of secret informants to come forward without a promise of anonymity, he responded that he had “more often interviewed journalists about their practice”. While he referred to his PhD thesis and that he conducted some “semi-structured interviews” with investigative journalists, he accepted that there is nothing in his thesis about interviews that he has conducted concerning the willingness of informants in the military and intelligence services to come forward without a promise of anonymity. Professor Ricketson also accepted that he has not conducted any surveys of investigative journalists about their dealings with secret sources.
  12. Professor Ricketson was reluctant to accept the proposition that “if a journalist is being truthful with a source, no journalist can ever promise secrecy to a source” but he accepted a court could decide to compel disclosure of the source’s identity under s 126K of the Evidence Act 1995 (Cth) (Evidence Act) and that the Independent Commission Against Corruption (ICAC) could compel disclosure of the source’s identity. While noting that journalists have resisted directions by ICAC to reveal their sources, he accepted that sometimes journalists do reveal the source to ICAC although he could only think of one example in the last decade or so, and he was not aware of any disciplinary proceedings that had been bought against that person. He was also asked about the power to compel the disclosure of documents held by the Australian Competition and Consumer Commission, and the Australian Taxation Office, but said that it was not “an area of expertise” of his but said that “once [journalists] have given a source a promise to keep the source’s identity confidential, they take that seriously up to and including resisting compulsion by various bodies for them to reveal their sources”.
  13. Professor Ricketson was cross-examined about his involvement with the Australian Press Council and the MEAA. He gave evidence that he was appointed to the Australian Press Council in early 2016 and accepted that there was some criticism of his appointment with review of the role that he had had with the Finkelstein Inquiry, and that as a precondition to his appointment he agreed that he would represent the MEAA’s position on all policy questions at the Australian Press Council, and that to the best of his knowledge and recollection he had done so. Professor Ricketson accepted that the MEAA has a policy position on the search warrant that was executed on the ABC, and a statement made on behalf of the Australian Press Council was tendered and brought to his attention. A tweet, written by Professor Ricketson about the execution of the warrant on 5 June 2019 was also tendered which also referred to a Journalism Education and Research Association of Australia (JERAA) statement on the same issue: “JERAA’s statement on AFP raids jeerra.org.au. The results of govts appeasing public anxiety about national security root causes & throw civil liberties under an (armoured) bus”. The respondents put to Professor Ricketson that these statements called into question his independence in these proceedings and suggested that he was expressing firm views, both through the Australian Press Council and in his tweeting of the JERAA statement. Professor Ricketson took issue with this proposition, stating that he “wear[s] a number of hats” and that, for example, the tweet represented a combination of the statement by JERAA and his own opinion.
  14. During the course of Professor Ricketson’s evidence some documents were tendered which included, two publications authored by him, a tweet sent by him, the MEAA, Australian Press Council, and JERAA media statements in relation to the execution of the warrants executed in June 2019.
  15. One document put to Professor Ricketson in cross-examination was a printout ostensibly from the ABC news website which was an article dated December 2017 entitled “ICAC probe forces journalist to reveal source for story”. Professor Ricketson was asked (in the context of having been previously asked about occasions when sources have been revealed) whether he was aware of this incident, to which he replied he was not aware of it. The respondents sought to tender the news item. On the basis that Professor Ricketson was not aware of the incident and therefore, it was being relied on for a hearsay purpose, the applicant objected to the tender of the ABC news story. The article was being tendered to rely on the truth of the facts asserted therein. It was being relied on for a hearsay purpose and was thus inadmissible. It is not admitted in these proceedings.

The respondents’ objections

  1. As noted above, the respondents objected to the entire report contending it was irrelevant on the basis that the applicant had abandoned its challenge to the validity of s 73A of the Defence Act. As the “constitutional challenge [had] now been dropped,” it was submitted that the purported relevance of the report was unclear.
  2. The applicant contended that it was relevant to the argument in paragraph [18A] of the OA which alleges that the decision to issue the warrant was ultra vires having regard to a number of factors including “the importance of the protection of sources”, “the public interest in investigative journalism” and “the implied Constitutional freedom for the reasonable discussion of government and political matters”. The applicant contended that this ground was “further elucidated” in the submissions of both parties, and highlighted a number of passages in both submissions to emphasise that “the argument is alive”, and so too, the relevance of the report.
  3. In addition to the relevance argument, the respondents challenged specific aspects of the report, most notably, that the applicant had not established that Professor Ricketson was qualified to give the opinion which is at the crux of his report at paragraphs [21] and [22] (as extracted above at paragraph [46]), that is, the purported “chilling effect” that the risk of disclosing sources “would have” on prospective informants who work within institutions, including military and intelligence services.
  4. The applicant, inter alia, submitted that the respondents were cavilling with Professor Ricketson’s evidence when the relevance of it related to what it submitted was a “wholly uncontroversial proposition” (referring to John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346 (Cojuangco) at [12] per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ), that information will be more readily supplied to journalists, of the kind which is in issue in this case, where confidentiality is protected, and that this “free flow of information” is a “vital ingredient in the investigative journalism which is such an important feature of our society”. I refer to the applicant’s submission in relation to Cojuangco in more detail below. Suffice to say, that proposition from Cojuangco may be accepted. If that was the relevance of Professor Ricketson’s evidence, and it purported to say no more than that proposition, one might think his evidence would have been unnecessary.
  5. It is therefore more appropriate to consider the issue of relevance of his evidence and, if relevant, the arguments as to his qualification to express the opinions he did, in considering the law as to source protection (see [182]-[245] below), which is relevant to the applicant’s argument in respect to grounds 1, 6, 7 and 9.

Respondents’ evidence

  1. The respondents read the affidavit of Lieutenant General Bilton AM CSC, sworn 27 September 2019, which addressed the ROEs and, amongst other things, why they are secretive, and are classified (with one exception) at no less than SECRET. This included, (without disclosing the content of any particular ROE), the purpose, use and formulation of the rules and the consequences of disclosure of current and past ROEs. Lieutenant General Bilton was not required for cross-examination.
  2. Lieutenant General Bilton addressed the extent to which ROEs are evolutionary although the precise extent of consistency or similarity is a matter of military sensitivity therefore, one appropriately not dealt with. He detailed the purpose of ROEs, as being: (1) to operate to ensure force protection; and (2) to ensure the actions of the ADF remain lawful and consistent with the mandate of the Australian Government, thereby retaining legitimacy. He explained the consequences if all of a current set of rules were disclosed and the way in which adversaries could identify vulnerabilities and deploy their own tactics, techniques and procedures for testing and operational advantage. He explained why these matters remain of ongoing sensitivity and that allowing an enemy to obtain an operational advantage in this way may have particular consequences which he identifies. He addressed whether the release of part of current rules would have the same effect depends on which part, noting that the release of operational components of ROEs would likely have adverse effects, particularly if those parts revealed limitations on the ADF’s use of force or its tactics, techniques and procedures. He explained how innocuous fragments might be put together through mosaic analysis. He described having experience with adversaries testing their knowledge of ADF tactics in this way, and explained that in his experience, adversaries do proactively seek to aggregate bits of information in order to build an understanding of such tactics. He explained that it is difficult to assess the likelihood of the consequences he had identified, but said the likelihood was real. He said the consequences are very significant for the ADF’s ability to carry out its function, and detailed that those consequences may include the ADF being undermined in its ability to carry out an operation as well as soldiers, sailors and airmen/women being injured and killed. He explained why the possible consequences are the same for the disclosure of non-current ROEs, and noted that if it were the case that ROEs for contingencies were acquired by an adversary before the ADF enacted the ROEs, it would likely result in even graver consequences than those he had previously detailed.

Relevant legislation

  1. The warrant was issued pursuant to s 3E of the Crimes Act which relevantly states:
3E When search warrants can be issued

(1) An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

...

(5) If an issuing officer issues a warrant, the officer is to state in the warrant:
(a) the offence to which the warrant relates; and

(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

(c) the kinds of evidential material that are to be searched for under the warrant; and

(d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

(e) the time at which the warrant expires (see subsection (5A)); and

(f) whether the warrant may be executed at any time or only during particular hours.
  1. The offence provision for the first two offences in the third condition of the warrant, s 73A of Defence Act is contained in “Part VII - Offences” of that Act and is in the following terms:
73A Unlawfully giving or obtaining information as to defences

(1) A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 commits an offence if:
(a) the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and

(b) the communication is not in the course of the first‑mentioned person’s official duty.
(2) A person commits an offence if:
(a) the person obtains any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or air force aerodrome or establishment, or to any of the defences of the Commonwealth or any other naval, military or air force information; and

(b) that conduct is unlawful.
  1. The maximum penalty for the offences under s 73A of the Defence Act is life imprisonment, an unlimited fine or both: Defence Act, s 73F.
  2. Most, although not all of the applicant’s challenges to the warrant, relate only to the first two offences in the third condition of the warrant.
  3. Suffice to say that the third and fourth offences, conduct contrary to s 131.1(1) and s 132.1 of the Criminal Code, relate to the offences of theft and receiving respectively. Section 131.1(1) prescribes an offence consisting of the dishonest appropriation of property belonging to a Commonwealth entity with the intention of permanently depriving the owner of that property. Section 132.1 creates the offence which a person commits by dishonestly receiving stolen property knowing or believing the property to be stolen. By force of the definition of “stolen property” in s 132.1(3), the provision only applies where the relevant property is (or was when previously received) property belonging to a Commonwealth entity, or proceeds of sale or property exchanged for such property. The maximum penalty for each offence is imprisonment for 10 years: ss 131.1(1), 132.1(1).
  4. The final offence in the third condition of the warrant, s 70(1) of the Crimes Act, provides that a Commonwealth officer commits an offence if he or she publishes or communicates, except to some person to whom he or she is authorised to publish or communicate it, any fact or document coming into his or her knowledge or possession by virtue of being a Commonwealth officer and which it is his or her duty not to disclose. The offence is punishable by imprisonment for 2 years: s 70(2). I note that this provision was repealed in 2018 by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) however, that repeal only has effect for conduct occurring on or after the commencement of that amending legislation: National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), Sch 2, Pt 1, item 7.

Legal principles relevant to search warrants

  1. The principles relevant to construing statutes relating to the issue and execution of search warrants are well established, and summarised by the Full Court (Logan, Rangiah and Bromwich JJ) in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 (Caratti) at [21]-[49].
  2. As the applicants challenge the issue of the warrant they bear the onus to make good that challenge: Williams v Keelty at [235]-[236].
  3. Construction of statutes that authorise search warrants must begin with “the ordinary meaning of the words considered according to their context and the legislative purpose”: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 (Hart) at [64]. As the Full Court (Hill, Hely and Conti JJ) in Hart observed at [68], “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”, such that a construction giving effect to “operational realities” is to be preferred to “fine legal judgments in the issue and/or execution” of search warrants.
  4. I note the observations of the Full Court in Caratti at [34] that:
In all challenges to the validity of the issue of a search warrant, the usual restraints on judicial review intervention will apply. This includes, most importantly, the principle that the decision manifested in the search warrant issued must be read beneficially, and not with an eye keenly attuned to the perception of error: Minister for Immigration And Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. However, application of that principle must accommodate the purposes of a search warrant in informing both those executing it and occupiers as to the scope of the search that is authorised. The scope of a search warrant may be far from precise given that it is issued for an investigative purpose, based upon the low threshold of “suspicion” being met. All that really means is that an error or misdescription must be shown to be material to the purposes of a search warrant. However when it comes to mismatches between the information and the search warrant, that feature must not be approached with undue technicality or any requirement for excessive precision. Practical considerations must always be kept steadily in mind: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52(Baker v Campbell) at 83.
  1. The Full Court in Caratti at [37]-[39] also summarised key principles from Beneficial Finance Corporation v Commissioner of the Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 (Beneficial Finance) which focussed on the sufficiency on the face of the warrant in so far as it relates to the description of the suspected offence. First, the statement of the offence in a search warrant need not be made with the precision of an indictment. The purpose of the statement of the offence is not to define the issues for trial, rather it is to set boundaries to the area of search: Beneficial Finance at 533; State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (Corbett) at [99]. Second, the line as to what may, or may not be seized, cannot be precisely drawn as a search warrant is not concerned with what is known, but with what there is reasonable grounds for suspecting: Beneficial Finance at 534. Third, the particularity in an offence description is directed to ensuring that the occupier knows the object of the search and can therefore make an assessment of the material likely to be relevant: Beneficial Finance at 539. Fourth, at the stage a search warrant is granted, it may not be known what particular offences may have been committed and therefore it is sufficient that the warrant specifies the suspected offences in a way so as to enable the executing officer and those assisting to decide if the things seized come within the terms of the warrant: Beneficial Finance at 539. Fifth, the issue of the sufficiency of an offence description should be viewed broadly, having regard to the terms of the warrant in the circumstances of each case. It should be answered in accordance with the principle that a search warrant should disclose the nature of the offence so as to indicate the area of search, with the precision required varying from case to case: Beneficial Finance at 543. It should not be answered by the application of a verbal formula: Beneficial Finance at 543; Corbett at [103].
  2. A warrant may be invalid if it fails to set “real and meaningful perimeters” as to the “area of search” or where the statement of an offence fails to impose any “practical constraint upon those executing a warrant”: Zhang v Commissioner, Australian Federal Police [2009] FCA 1170; (2009) 260 ALR 580 at [13] per Flick J citing Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145 at 152 per Hill, Cooper and Whitlam JJ. This does not mean that the scope must be precisely or exactly drawn, given the low threshold of “suspicion” being met and the investigative purposes a warrant serves: Caratti at [34], [37] and [114]. Rather, invalidity will arise if there is a “failure to focus the statutory suspicion and belief upon any particular crime”: Caratti at [37] (citing Beneficial Finance at 533 with approval).
  3. As the Full Court in Caratti concluded at [40]:
What emerges from Beneficial Finance and the many cases since that have followed, applied or approved it, including Corbett in particular, is a test of sufficiency to indicate the area of search, not precision or particular accuracy. There is no legal principle creating an abstract test by which the nature and degree of precision in the statement of a suspected offence in a search warrant will be inadequate... Whether an offence description is adequate or sufficient – or not – is a matter for assessment in all the circumstances of the case at hand. It is largely a factual and practical evaluation, which may be affected to a significant degree by context and nuance. It is substantially a trial determination, rather than an appeal determination, as the subjective nature of the determination will seldom lend itself to being a conclusion that was not open to a primary judge, even if members of an appeal court might have reached a different conclusion. The above principles make appellate intervention, which is already difficult in many cases, often very hard to achieve in search warrant cases. That is all the more so when there has been oral evidence, cross-examination, credit assessments and the drawing of inferences. Those difficulties are compounded by the discretionary nature of the relief that may be granted or refused.
  1. It is against this background that I turn to consider the issues to be determined in this matter.

Grounds of the application

  1. In the Agreed Statement, the parties agree that the following issues fall for determination by the Court (leaving aside the issue which was abandoned prior to the hearing):
(1) Is the first respondent’s decision to issue the warrant invalid on any or all of the following grounds:
(a) the decision was not authorised by s 3E of the Crimes Act on its proper construction (ground 1, OA [18A]);

(b) the three conditions of the warrant did not provide a real and meaningful perimeter to the evidential matters the warrant purportedly authorised to be searched for and seized (ground 2, OA [19]);

(c) the suspected offences specified in the third condition of the warrant were expressed in a conclusionary, vague and uncertain manner (ground 3, OA [20]);

(d) the warrant purported to authorise the search and seizure of material that could not afford evidence as to the commission of the offences in ss 73A(1) and (2) of the Defence Act that were specified in the third condition of the warrant (ground 4, OA [21], [22]); and/or

(e) the decision was legally unreasonable? (ground 6, OA [23])
(2) Was the decision of the second and third respondents to seek the warrant legally unreasonable? (ground 7, OA [24])
  1. In some respects there is overlap between some of the grounds, with certain factual premises underpinning more than one of the arguments.
  2. Details of the arguments will be dealt with below when considering the grounds of the application. Suffice to say at this stage, ground 1 of the applicant’s challenge contends that the decision to issue the warrant was ultra vires having regard to the implied freedom of political communication. Grounds 2, 3 and 4 contend that the warrant was invalid on its face. Grounds 6 and 7 contend that the decisions to apply for and issue the warrant were legally unreasonable.
  3. While the applicant addressed the submissions in the order the grounds appear, it is plain that part of its submission in relation to ground 1 is based on a premise that the terms of the warrant are “vague, conclusionary and uncertain”. This characterisation of the warrant is also relied on by the applicant in grounds 2 and 3 in which it contends that the warrant was invalid because it failed to provide a real and meaningful perimeter to the evidential matters purportedly authorised to be searched for, and the suspected offences in the third condition were expressed in a “conclusionary, vague and uncertain manner”, (and in its grounds 6 and 7). The applicant’s argument in respect to ground 1 therefore depends, in part, on its characterisation of the warrant in the grounds which challenge the warrant on its face (grounds 2 to 4). While the applicant addressed the extent to which my findings in respect to the “face of the warrant” grounds can be used for the purposes of the inquiry in ground 1 (these submissions are detailed further below), it nonetheless accepted that those conclusions would be relevant to resolving ground 1.
  4. It is therefore appropriate to first address grounds 2 to 4 which consider the complaints about the terms of the warrant, because it must be against those terms and the conclusions in respect to them, that any argument as to the warrant, as issued in those terms, being ultra vires (and the decision to apply for and issue the warrant in those terms being legally unreasonable), must be judged. Further, grounds 2 to 4 also necessarily involve a consideration of s 3E (its purpose and scope), and the principles relevant to the interpretation of a search warrant issued under such a provision. These considerations are also relevant to resolving ground 1.
  5. I also note at this stage that the applicant made submissions said to be relevant context in which all the grounds in this application are to be addressed which included, amongst other things, the role of the ABC, the importance of source protection and the consequences if confidential sources are identified, and the detail of the Afghan Files Stories. It was submitted that these matters raised by the applicant related generally to all four of their heads of challenge to the issue of the warrant, although in many instances, there was no submission as to why or how this could be so, given the issues for determination. Ultimately, the submissions were principally relied on in support of ground 1, and are addressed below when resolving that ground.

Grounds 2 and 3, OA [19]-[20]: the warrant is invalid as it does not comply with ss 3E(1), 3E(5)(a) and (c) of the Crimes Act

Submissions

  1. The applicant submitted that the search warrant is invalid because it failed to provide a real and meaningful perimeter to the evidential matters it purportedly authorised to be searched for and seized.
  2. The applicant submitted that the first condition and second condition did not meaningfully limit the scope of the search authorised by the warrant. It was submitted that the first condition set out a list that included almost every type of document that might be found at the applicant’s premises. Further, the second condition also set out a wide-ranging list of topics that included, for example, “Australian Broadcasting Corporation (ABC)”. The applicant submitted that the words “relating to” in the second condition are words of the “widest ambit”, and as the warrant was executed at the ABC’s premises, everything at those premises “relate[d] to” the ABC.
  3. The applicant submitted that the third condition was the only means by which the scope of the search authorised by the warrant was confined. It submitted that the suspected offences in the third condition of the warrant were expressed in a conclusionary, vague and uncertain manner. It submitted that the condition did not describe the suspected offences in a way that would enable the executing officer to decide if the things seized came within the terms of the warrant. This submission focussed on the term “military information” which appears in the first two offences specified in the third condition of the warrant, in relation to the offence contrary to s 73A of the Defence Act. The applicant focussed on the terms “information” and “military” separately and together. It submitted that the term “military information” introduced such a degree of ambiguity and uncertainty that it was not possible for the executing officer to decide if things seized came within the scope of the warrant. The applicant also submitted that the ordinary meaning of the terms “information” and “military” are capable of referring to a broad range of matters. On the applicant’s submission, the word “information” includes hearsay, matters of opinion, actual or likely intention or assumption, as well as untested assertions, matters of supposition, and matters that are false. The applicant also contended that the term “military” could refer to a country’s armed forces, or to a country’s army, or more broadly to any matter relating to soldiers, war, or defence. It submitted that the combination of those words in the expression “military information” provided no guidance about which of the many possible meanings of “military” and “information” are intended to apply. The term provides no guidance to the executing officer about whether the information must be recent or credible, whether it must originate from the military, whether it must relate to the military of a particular country, or whether even a tenuous or distant connection between the information and the military will suffice. It was submitted that its meaning was “entirely ambiguous”. To illustrate this point, the applicant submitted that it may include, for example, a documentary about Australia’s involvement in World War Two, a newspaper article about the Soviet-Afghan War, or a photograph of the Royal Military College, Duntroon.
  4. The applicant contended that given the ambiguity and uncertainty introduced by the term “military information”, it was not possible for the reader of the warrant to “understand the object of the search and appreciate the boundaries of the authorisation to enter, search and seize”: Corbett at [106] per Callinan and Crennan JJ.
  5. During oral submissions, the applicant sought to draw a comparison between the search warrant in Caratti and this case, submitting that: the first condition of the Caratti search warrant was in “very broad” terms and is broadly analogous to the first condition in this warrant; the second condition contained broad topics though not as broad as the warrant in this case, and pointed to the Full Court’s criticism of the breadth of that condition. Finally, the applicant submitted that the offences contained in the third condition of the Caratti warrant were identified by reference to a particular piece of subject matter and that there was no corresponding language in the third condition of the warrant in this case which identified the specific subject matter of each offence. It submitted that there is no identification of the character of the information, facts, documents or property that the offences pertain to: for example, the military information that was, in fact, sought in relation to the first two offences is not articulated; in the reference to “stolen property” in the third and fourth offences there is no reference to what that property is – it was submitted that on its face, paper clips or a post-it note could be caught; and as to the fifth offence, there is no identification of the “fact or document” referred to. The applicant submitted that the specificity of the third condition of the warrant in Caratti saved that warrant from being overly broad, however that the same cannot be said in this case, due to the lack of information contained in the third condition. It was submitted that, unlike in Caratti, the third condition of the warrant contained no identification of the character of the information, facts, documents or property the subject of the offences, and in doing so, “purported to authorise a very, very broad search”.
  6. In response to questions during the hearing, the applicant submitted that while it accepted that an indictment for the offences contained in the third condition could be drafted in general terms, what was required in this case was that the warrant provide a meaningful perimeter to the matters that could be searched for. The subject matter was left unconfined, and it was not possible for a reader of the warrant, without drawing in extraneous information and assumed cooperation, to assess with any precision whether any particular thing fell within the scope.
  7. The respondents submitted that the warrant clearly identified the scope of the search to be conducted, and the suspected crimes that were being investigated. The respondents accepted that the first and second conditions of the warrant are widely drawn, but rejected the submission that they, or the warrant as a whole, placed no meaningful limit on the scope of the authorised search. They submitted the warrant clearly indicates an investigation focused on offences concerning the provision (by Mr McBride) and receipt (by Mr Oakes) of information and documents that led to the ABC’s reporting of the Afghan Files Stories (the titles of which are revealed in the web addresses specified in the second condition). They submitted that this is apparent from the clear terms of the offences outlined in the third condition of the warrant, particularly when read in the context of the first and second conditions of the warrant.
  8. The respondents submitted that the applicant’s approach of critiquing individual terms from the first and second condition of the warrant divorced from the context and further limit provided by the third condition was “unhelpful”.
  9. The respondents submitted that the applicant’s assertion that the first and second condition provided no “meaningful limit” is overstated and they provided examples to illustrate that. They submitted that while the breadth of the first and second conditions may “[place] a heavier burden on the third condition”, the third condition in this case was sufficiently clear and precise to meet any such burden. The respondents drew attention to the fact that the third condition identified five suspected offences, each of which specified a time period, and the person suspected of committing the offence. They contended that each suspected offence must be read as a whole, and the specification of timeframes and names served to more narrowly confine the authorised search. They submitted that the descriptions collectively made it clear that the warrant was directed to the exchange of documents that occurred between Mr McBride and Mr Oakes. The respondents point to a statement made by senior counsel for the applicant at the 19 August 2019 case management hearing, where he indicated this understanding of the suspected offences when he stated that “[t]hey are the flipside of the same coin. There’s not an allegation that Oakes had information, documents or property other than as provided by McBride”.
  10. The respondents noted that the applicant’s complaint in respect to this ground is confined to the use of the term “military information” in the two suspected offences contravening s 73A of the Defence Act, and that on the applicant’s submission, that phrase is said to introduce “such a degree of ambiguity and uncertainty” as to invalidate the entire warrant. On this basis, the respondents contended that there is no complaint about the other offences. I note that while that submission is correct in so far as the applicant’s written submissions, as explained below at paragraph [105], the applicant expanded its submission during oral argument.
  11. The respondents noted that a warrant may be valid even if the suspected offences have been misdescribed, provided the error is not material, but submitted that there was no misdescription in this case. They submitted that the term “military information” is taken directly from the final words of ss 73A(1)(a) and (2)(a) of the Defence Act and necessarily bears the same meaning as it does in its statutory context. The respondents took issue with the applicant’s submission based on the full gamut of possible meanings of “information” and “military” which are divorced from the statute. The respondents submitted that there is no reason to suggest, or any evidence supporting the suggestion, that the respondents, Registrar Kane or the applicant understood “military information” to mean anything other than “military information within the meaning of s 73A”. The respondents submitted that it is entirely orthodox for a warrant, and indeed an indictment, to specify only the parts of a statutory offence that is alleged or suspected to have been contravened. It is not usual to recite the entire offence provision. They submitted that the sufficiency of an offence description in a search warrant does not turn on the application of a verbal formula or on “overzealous technicality”, referring to Beneficial Finance at 543.
  12. The respondents submitted that while the specific “military information” alleged to have been obtained by Mr Oakes in the second suspected offence is not particularised, the nature of that information is clearly apparent when the third condition is read in the context of the warrant as a whole. In this context, the offences specified in the third condition sufficiently indicated the area of the search to be conducted.
  13. In oral submissions, the respondents addressed the submission relating to the comparison between this warrant and that in Caratti. The respondents took the Court through the conditions in the Caratti warrant and submitted that in that case the Full Court was critical of the warrant due to the extraordinary breadth of the first and second conditions, however they still upheld the validity of the warrant. Going to the third condition of the warrant, the respondents went through the offences in some level of detail, and submitted that the evidence they could relate to would be extremely wide. Going through individual items in the first condition of the warrant in this case, the respondents made submissions as to why this was “a very constrained list” in contrast to that in the first condition of the warrant in Caratti, such that the items were not overly broad, further emphasizing that the warrant needs to be read as a whole.
  14. In reply, the applicant submitted that the respondents seek to establish that the warrant indicated the focus of the investigation, by referring to specific aspects of the three conditions of the warrant, such as the web addresses in the second condition. It was submitted however, that the question is not whether it is possible for the executing officer to identify the focus of the investigation, rather it is whether the warrant sets bounds or a perimeter to the area of the search. This question, it was submitted, must be addressed by reference to the full scope of the search that the warrant, on its face, purported to authorise. It submitted that “it is not to the point that it may be possible to select particular combinations of items in the first, second and third conditions of the warrant which indicate the focus of the investigation”.
  15. The applicant took issue with the respondents’ contention that the term “military information” bears the same meaning as in its statutory context. Referring to Dunesky v Elder at 557 and Polley v Johnson [2015] NSWCA 256; (2015) 253 A Crim R 521 (Polley v Johnson) at [47] – [51] the applicant submitted that this proposition is contrary to authority, and that terms used in a warrant do not of necessity bear the same meaning as in their legislative context.
  16. The applicant submitted that the respondents’ reliance on the applicant’s statement that the AFP “knew with particularity the documents the subject of the suspected offences”, was misplaced. It submitted that this ground must be determined on the face of the warrant and that what is relevant is that, even if the AFP had that knowledge (independently of the terms of the warrant), it was not reflected in the drafting of the warrant, which failed to set a perimeter to the area of the search.

Consideration

  1. The applicant’s submission that the warrant does not set a real and meaningful perimeter to the search, and that the offences in the third condition are expressed in a conclusionary, vague and uncertain manner is primarily based on two premises: first, that the first two conditions provide no meaningful parameters leaving all the work to the third condition; and second, the use of the term “military information” in the first two offences in the third condition is ambiguous and uncertain. While the applicant’s opening and reply written submissions in relation to these grounds only complain of the first two offences, during oral argument the applicant introduced an additional submission, albeit briefly, that all the offence descriptions in the third condition of the warrant do not specify the subject matter of the offences: the “military information” (offences 1 and 2), the “stolen property” (offences 3 and 4) and the “fact or document” (offence 5) are not specified or identified. From that it was submitted that the warrant did not provide any meaningful parameters.
  2. Neither submission is established, considered separately and in combination.
  3. The applicant’s primary submission is based on a consideration of words and phrases in the conditions in isolation, devoid of their context. It is of no assistance to consider the breadth of individual words and phrases in the warrant in isolation, as material must satisfy all three conditions before it can be seized pursuant to the warrant.
  4. As noted above, the warrant is in the three condition format, as approved in Dunesky v Elder at 557. The principles relevant to the resolution of this ground are referred to above at [75]-[81] and it is unnecessary to recite them again. Suffice to say the warrant must necessarily be considered as a whole, read fairly and not perversely: Caratti (No 2) at [131], [161].
  5. When that is done with this warrant, while the first and second conditions are broad, it is incorrect to characterise them as providing no meaningful limitation on the search authorised by the warrant. Nonetheless, as is typical of a three condition warrant, the third condition does bear most of the work: Caratti at [67]. However, the third condition does provide sufficient information when read in the context of the warrant as a whole, to enable those executing the warrant to decide if the things seized come within the terms of the warrant, and sufficient particularity in the offence descriptions to ensure that the occupier knows the object of the search and can therefore make an assessment of the material likely to be relevant: Beneficial Finance at 539, and see Caratti (No 2) at [112].
  6. A number of observations may be made about the warrant. A reading of the warrant as a whole reflects that it relates to an investigation which concerns offences involving Mr McBride providing to Mr Oakes information and documents, which the second condition reflects relates to material involved in the publications by the ABC referred to in these reasons as the Afghan Files Stories. The second condition lists publications by reference to the ABC news website by date and title, all of which would have been readily understood by the occupier of the premises, the ABC, to relate to the Afghan Files Stories. The second condition also refers inter alia, to the Afghan files, and other matters which are referred to in the titles of the listed publications, and to military related matters. For material to satisfy the definition of evidential material that may be seized under the warrant, there must be reasonable grounds for suspecting it will afford evidence as to the commission of one of the offences identified in the third condition, which inter alia specifies the relevant offence provisions (and in the first two offences that it is military information), the time frames for each offence (in one instance limited to one day) and the identity of the two persons involved in the suspected offences, with the information being provided by Mr McBride to Mr Oakes. The words in the offences take their meaning from the relevant offence provisions, and in respect to s 73A (as explained below when considering ground 4), that necessarily includes the nature of the information and that it is confidential information. Regardless, it would have been readily understood from the terms of the third condition that the information and documents alleged to have been provided by Mr McBride are said to have come to his knowledge because he was a Commonwealth officer and that he provided them to Mr Oakes in circumstances where Mr McBride was not entitled to do so.
  7. It is plain from the terms of the warrant that the offences in the third condition are the flipside of each other; they relate to each side of the exchange of information and documents between Mr McBride and Mr Oakes. That is how the warrant would have been read. It would also have been readily apparent on a fair reading of the warrant, that while the third to fifth offences do not describe the facts, property or documents referred to therein, they relate to the same information (and the provision of any documents containing that information) referred to in the first two offences. The offences in the third condition, read with the second condition, would have been understood to be focused on information and documents related to the Afghan Files Stories.
  8. There are clear parameters to the search provided in the warrant, not referred to by the applicant in its submission.
  9. A consideration of just three of the examples relied on by the applicant, illustrates the flaw of the approach of considering words in isolation.
  10. The first example relates to the phrase “which relate to” in the second condition. While it may be accepted, as the applicant contended, that the phrase is of wide import, that interpretation is not necessarily so. Rather, the phrase is ambulatory: The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601 at[31] per French CJ. As Davies J in Hatfield v Health Insurance Commission [1987] FCA 286; (1987) 15 FCR 487 at 491 observed:
Expressions such as ‘relating to’, ‘in relation to’, ‘in connection with’ and ‘in respect of’ are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute...The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.
  1. That phrase, which appears in the second condition in this case, is limited by its context, which includes the third condition of the warrant.
  2. That leads to the second example, which relates to the submission that the second condition contains the phrase “Australian Broadcasting Corporation” which, it was submitted, could cover everything at the ABC’s premises. The warrant plainly could not be interpreted to cover everything at the ABC. For the material to be evidential material within the terms of the warrant it must satisfy all three conditions which includes that there must be reasonable grounds for suspecting that it will afford evidence as to the commission of one of the offences specified in the third condition.
  3. The final example relates to the applicant’s submission that the phrase “military information” contained in the first two offences in the third condition is so broad it could relate to a documentary about Australia’s involvement in World War Two. Again, such a submission ignores that the material must satisfy the third condition of the warrant. The applicant’s submission in this ground as to the meaning of that phrase and the individual words also bears no correlation to or consideration of the statutory context in which the words appear. While the applicant submitted that this ground is based on a broader submission than it advances in ground 4 (which is based on the interpretation of “military information”), that does not provide a basis to consider the phrase other than in the particular offence provision specified in the third condition (and which is to be read in the context of the warrant as a whole). There is no basis to contend that the phrase “military information” would be understood to mean anything other than the meaning it bears in the context of the s 73A offence provision.
  4. The two authorities referred to by the applicant to suggest otherwise, Dunesky v Elder and Polley v Johnson relate to circumstances and issues which are factually distinguishable from this case. In Dunesky v Elder a definition of a word from another Act was sought to be relied on to give meaning to the relevant offence created by the Crimes Act. This is plainly different from the present case where “military information” in the warrant has the same meaning as in s 73A (the offence creating provision). In Polley v Johnson Simpson JA found (with Beazley P and McColl JA agreeing) at [43] that the act conferring the power to issue the warrant (in that case, the Law Enforcement (Powers and Responsibilities) Act 2002(NSW)) did not require “the issuing officer to determine whether the information contained in the application as the basis for the application is capable of ‘sustaining’...a charge under s 326(2)”. Rather, the decision maker was obliged to ask herself whether there were reasonable grounds for issuing the warrant in light of the information provided to her, and the relevant authorising provisions. The Court found that “[i]t is not the role of the eligible issuing officer to whom application is made to explore any fine legal points concerning the construction of the legislative provision that creates the searchable offence...”:Polley v Johnson at [44] per Simpson JA with Beazley P and McColl JA agreeing. As expanded upon in ground 4, nothing in those cases, nor the circumstances of this case, provide a basis to suggest that the phrase “military information” would be understood to mean anything other than the meaning it bears in the context of the s 73A offence provision.
  5. As to the additional submission raised by the applicant in oral submissions, the terms of the third condition do not result in the warrant, properly read as a whole, as having no meaningful parameters to the area of search.
  6. As a starting point, the statement of the offences in a search warrant need not be made with the precision of an indictment: Beneficial Finance at 533, and such detail as proposed by the applicant may not be required in an indictment.
  7. As illustrated in respect to the applicant’s primary argument, underpinning this submission is a consideration of the offences in the third condition in isolation. For example, the submission that without the identification of the subject matter the offence of stolen Commonwealth property listed in the third condition could, on its face, relate to paperclips or post-it notes, is of no assistance to its argument. That offence in the third condition is not to be read in isolation. As noted at [110] above, it is plain when the warrant is read as a whole that it relates to an investigation concerning offences involving Mr McBride providing to Mr Oakes information and documents relating to the Afghan Files Stories. The submission only serves to highlight that the applicant’s approach to the interpretation of the warrant is contrary to authority, and that the warrant must be read as a whole.
  8. It is important to recall, in light of the applicant’s submission, that the question is not whether further specificity or detail could have been included in the conditions of the warrant but rather, in respect to this ground, whether the applicant has established that the warrant is invalid on the basis that it fails to set any real and meaningful parameters as explained in the authorities referred to above at [80]-[81].
  9. That is not to be answered by the application of a formula: Beneficial Finance at 543; Corbett at [103]. It is largely a factual and practical evaluation, which may be affected to a significant degree by context and nuance: Caratti (No 2) at [39]-[40].
  10. The applicant’s attempt to draw a contrast between the terms of the warrant in this case, and that in Caratti, is artificial and of limited assistance. As explained above, the principles relevant to assessing the sufficiency of the terms of the warrant are well established and depend on the circumstances of the particular case. The assessment must necessarily be case specific. The precision required in a warrant will vary from case to case: Beneficial Finance at 543. That said, the applicant’s comparison with Caratti does not hold true. If anything, the first and second conditions in the Caratti warrant, given their content, are broader or more expansive than in this case. The first condition in the warrant in this case appears to be directed at the format or type of material which exists in an organisation such as the applicant which may, given the evidential material sought, be relevant items. Moreover, particular criticisms of, for example, the first condition which was said to include items not relevant (including planning logs, broadcasting and online schedules and a journalist’s piece to camera) does not assist the applicant’s argument. Given that the warrant is directed to material which will afford evidence as to the commission of the offences, it is not hard to imagine that schedules and the like might contain information which reflect on when, and to whom the information was given. Pieces to camera might encompass unpublished material relating to the Afghan Files Stories. As to the second condition, I note that in Caratti that condition only identifies persons or entities, in contrast to this warrant, which also identifies material which is sought, by reference to a list of publications by the applicant relating to the Afghan Files Stories.
  11. Further, the third condition of the warrant in this case is narrower in terms of time frame, and arguably content than in Caratti. For example, in Caratti the warrant offences covered a year, and in one instance years. As the conditions in the warrant are to be read together, and are to be read fairly and not perversely, the content of the third condition must be considered in light of the preceding conditions, which gives the third condition colour, specifically, that it relates to information provided by Mr McBride to Mr Oakes, and “military information” within the meaning of s 73A, relating to what is referred to as the Afghan Files (see [110], [117] above). In Caratti, Wigney J concluded that “[t]o say the very least, the description of each of the offences in the third condition of the warrants left a lot to be desired. In each case the language used was infelicitous, in some respects ambiguous or unclear, and generally showed a lack of appreciation of the terms of the underlying tax legislation”: Caratti (No 2) at [166]. Tellingly, as the respondents correctly observed, the warrant in Caratti, while criticised by the Court, was nonetheless held to be valid. The Full Court relevantly stated “[I]t should be added that the criticisms made by the primary judge of the drafting of the search warrants were well observed and soundly reasoned. However, as his Honour concluded, the search warrants were sufficient for the statutory purpose of confining the object of the search that was authorised and provided sufficient guidance as to what was and was not permitted to be seized”: Caratti at [122].
  12. The warrant, read as a whole, sufficiently specified the perimeter for the search and seizure authorised by the warrant. I note that the particulars to ground 3, OA [20] are repeated in respect to the first two offences in ground 4, OA [22], and are also addressed below.
  13. The applicant has not established these grounds.

Ground 4, OA [21]-[22]: s 73A Defence Act

Submissions

  1. The applicant contends that the warrant is invalid because it purported to authorise the seizure of material that could not afford evidence as to the commission of the first and second suspected offences referred to in the third condition of the warrant, being the offences under s 73A of the Defence Act. The applicant’s submission on this ground is based on what it contends is the correct construction of s 73A of the Defence Act.
  2. The applicant submitted that on their proper construction, the general words “other naval, military or air force information” which appear at the end of ss 73A(1) and (2) (extracted at [70] above) are governed by the ejusdem generis rule of statutory construction, and they are limited to information of the same genus as the specific kinds of information referred to in s 73A. It submitted that the relevant genus in s 73A is clear: all the specific items recited in ss 73A(1) and (2) refer to physical buildings or installations. On their proper construction, the applicant submitted, the words “other naval, military or air force information” in the context of s 73A means information about naval, military or air force buildings or installations, and that the legislation was concerned with physical defences, as opposed to “intangible matters such as military know-how”.
  3. The applicant submitted that there is nothing in the relevant text or context to indicate that the ejusdem generis rule should not apply to s 73A and outlined four bases upon which this argument was made. First, that s 73A establishes a clear genus, indicating that the Parliament intended for the rule to apply. Second, the drafting of s 73A supports the proposition that the Parliament intended for the rule to apply. If s 73Ahad been intended to apply to any “naval, military or air force information”, then all of the more specific words in the provision would be otiose. Third, nothing in the statutory context indicates that the rule should not apply. Fourth, nothing in the subject matter of s 73A indicates that the rule should not apply. Section 73A creates criminal offences triable on indictment and potentially punishable by imprisonment for life. Relying on Gibbs J in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576, the applicant submitted that the ordinary rules of statutory construction – including the ejusdem generis rule – should be applied, and any remaining ambiguity or doubt should be resolved in favour of the subject, that is, in favour of a narrower construction. The applicant contended that its construction would not leave a gap in the law in relation to the protection of sensitive defence-related information as at all relevant times there have been other offences dealing with the disclosure and receipt of such information.
  4. Based on that, the applicant submitted that by only referring to “military information”, and divorcing those words from their context in s 73A, the third condition of the warrant set out a misleading statement of the offences in s 73A and that it cannot be assumed that the words “military information” would have been understood by the reader of the warrant as having their correct, limited, meaning. Those words gave an erroneous impression of the nature and scope of those offences. By describing the offences in such a misleading way, on the applicant’s submission, Registrar Kane failed to state the offences to which the warrant related, as required under s 3E(5)(a), and purported to authorise the seizure of material that could not afford evidence as to the commission of the offences in s 73A of the Defence Act.
  5. The applicant also submitted that to the extent the words “military information”, as they appear in the warrant, have any certain meaning, they are far broader than information about military buildings or installations. It was submitted that in these circumstances the only available inference is that, Registrar Kane proceeded on an incorrect understanding of s 73A and there is a realistic possibility that, if he had proceeded on a correct understanding of s 73A, he would not have issued the warrant (or would not have issued it in its terms).
  6. The respondents submitted that the third condition of the warrant clearly describes the suspected offences under ss 73A(1) and (2) and there is nothing misleading about including a description in the warrant of only the parts of s 73A that Mr McBride and Mr Oakes were suspected of having contravened. The respondents noted that the warrant is an instrument that must be read and construed subject to its enabling legislation, and so as not to exceed the power of the issuing officer: Acts Interpretation Act 1901(Cth) (Acts Interpretation Act), s 46. In those circumstances, they submitted that the reference to “military information” must be construed as having the meaning that those words bear in s 73A.
  7. The respondents made submissions as to the construction of s 73A(1)-(2), particularly the words “any other naval, military or air force information” in ss 73A(1)(a) and (2)(a). It submitted that those words capture information, which is withheld from public availability, concerning the defences, including the capability, planning and execution thereof, of the Commonwealth and the States through naval, military or air force operations and not confined to “information about naval, military or air force buildings or installations”.
  8. The respondents advanced a number of propositions in support of their construction of those provisions. First, those provisions protect information, sourced from within the ADF or the public service, of a kind that is confidential, in the sense of “deliberately kept from general knowledge”. A prohibition on communicating or obtaining government information in an unauthorised or unlawful manner would make little sense if applied to information that is generally available by design of its government originator. Second, whilst ss 73A(1)(a) and (2)(a) contain several alternative and potentially overlapping limbs, the whole of s 73A should be read in light of the phrase “or to any of the defences of the Commonwealth” and the context of the Defence Act as a whole, including the long title and structure of the Act. The concept of information relating to “defences” has formed part of the equivalent provisions ever since their introduction into the Commonwealth statute book in 1903, and was reflected in their earlier colonial antecedents. Properly construed, the section is concerned with limiting communication or obtaining of information that relates, in a meaningful, non-trivial way, to the “defences” of the Commonwealth and the States. Third, on a purposive reading of the provision, the “defences” of the Commonwealth and the States encompass both physical infrastructure (forts, batteries, etc) and intangible aspects of Australia’s defence, including military know-how, troop numbers, capabilities and deployments. There is no basis in the text or context to restrict “defences” to physical defences, or information concerning “physical buildings or installations”. Fourth, the phrase “any other naval, military or air force information” extends s 73A to apply to any other information of that same character (“information as to defences”), both concerning the physical facilities listed in ss 73A(1)(a) and (2)(a) and concerning matters that are not expressly described elsewhere in the provision. It removed any doubt that the provision applies to information relating to the intangible aspects of Australia’s defences; Australia’s participation in conflicts geographically removed from the Commonwealth territory; and conflicts where there is no direct threat to Commonwealth territory or involvement of fixed physical defence infrastructure. Whilst the other limbs of ss 73A(1)(a) and (2)(a), particularly “any defences of the Commonwealth”, may also capture some or all of that information if they are given a breadth commensurate with the provision’s purpose, on a narrower reading they may not. This kind of concern is reflected in the extrinsic material for the bill introducing the phrase “any other naval or military information”, which was enacted at the height of Australia’s participation in World War I, in which the Minister noted that the Defence Act was framed “before war conditions arose” and that the “practical experience of the war has shown the necessity for amendments in order to remove doubts concerning several of the provisions”. Fifth, as to s 73A(1): s 73A(1)(b) specifies that a member of the ADF or public service will only commit an offence under s 73A(1) if the communication is “not in the course of” the person’s official duty. Relevantly this aligns with s 70(1) of the Crimes Act, an element of which is that it was the Commonwealth officer’s “duty not to disclose” the particular information. Sixth, as to s 73A(2): s 73A(2)(b) specifies that a person will only commit an offence against s 73A(2) if his or her conduct in obtaining the relevant information is also independently “unlawful”. In practical terms, the respondents submitted that this confines the section’s scope of operation to the receipt of information in circumstances where the conduct of obtaining is already unlawful by operation of some other legal rule, which would include other criminal prohibitions.
  9. The respondents submitted in that context, nothing in the broader context of the warrant suggests that “military information” was intended to bear a wider scope than the statutory words. The respondents provided examples to illustrate this point. However, the respondents submitted that even if there is error it would have no effect on the warrant’s validity.
  10. The respondents submitted that a warrant is to be read and construed as valid to the extent possible. They emphasised that the applicant bears the onus of proving that, if the s 73A suspected offences were severed, the warrant would have operated differently such that severance is not possible, and argued that the applicant is unable to discharge that onus in this case. Even if the description of the s 73A offences in the third condition of the warrant was deficient or evidenced some deficient understanding of the law, they submitted that Registrar Kane still had grounds to issue the warrant on the basis of the other offences listed in that condition. On the respondents’ submission, the inclusion of those other offences means that the scope of the search and seizure authorised by the warrant would not have been any narrower if the s 73A offences had been omitted. Noting the breadth of the definition of “thing relevant to an indictable offence” in s 3(1) of the Crimes Act, and of s 3F, all material that could be seized under the s 73A limbs of the third condition could equally be seized under the other limbs. They contended that to sever the s 73A offences would have no effect on the warrant’s scope.
  11. In reply, the applicant submitted that when read in its context, the word “defences” does not support the construction of s 73A for which the respondents contend. First, in its ordinary meaning, the word “defences” refers to physical infrastructure, rather than intangible matters such as military know-how (relying on the Oxford English Dictionary, the Shorter Oxford English Dictionary and the Macquarie Dictionary). Second, that meaning is made clear by the context in which those words have appeared in s 73A throughout its history. Third, the other extrinsic materials relied on by the respondents do not assist. Fourth, to the extent that the respondents rely on a purposive reading of s 73A, they fail to identify a purpose derived from “what the legislation says”, instead of an “assumption about the desired or desirable reach or operation” of s 73A. Finally, the applicant submitted that the respondents’ argument which was based on the purported consequences of its construction is unconvincing because information of the nature referred to by the respondents, is covered by offence provisions in other legislation.

Consideration

  1. There are two aspects to this ground, first, the construction of s 73A, and second, the consequence of that construction on the first two offences listed in the third condition of the warrant.

The construction of s 73A

  1. The respondents’ interpretation of s 73A should be accepted.
  2. The applicant’s submission depends on the maxim, ejusdem generis, that where there is a list of things that are specific instances (species) of a class or category (a genus) general words following that list may be restricted to species of that genus: R v Regos [1947] HCA 19; (1947) 74 CLR 613 at 623 per Latham CJ; Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629 (Cody v J H Nelson) at 647 per Dixon J.
  3. However, in Gas & Fuel Corporation of Victoria v Comptroller of Stamps [1964] VicRp 77; [1964] VR 617 at 620, Herring CJ and Adams J observed:
In our opinion, the ejusdem generis rule of construction in this case affords no assistance to the construction of the words "other charge". As is made clear in such cases as R. v. Regos and Morgan [1947] HCA 19; (1947), 74 C.L.R 613, at p.63; [1947] HCA 19; [1947] A.L.R 308, and Cody v. J. H. Nelson Pty. Ltd., supra, at C.L.R. p. 647, "the ejusdem generis rule is not one to be automatically applied but rather a rule which mayby reason of context and subject-matter be of assistance in ascertaining the real intention of Parliament". The more modern view taken of the rule is thus expressed inAnderson v. Anderson, [1895] 1 Q.B. 749, at p. 753, by the Court of Appeal: "prima facie general words are to be taken in the larger sense unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before". We can see no justification from the context or the subject-matter of the statute for controlling the meaning of the general expression "other charge" by reference to the particular instances of "interest and insurance". To do so appears to us mere conjecture as to the intention of Parliament. In any case, the choice of what are natural and normal incidents of a credit transaction as the category to control the meaning of "other charge" would seem, with all respect, to be quite arbitrary. In one of his submissions Mr. Gilbert suggested as the appropriate category charges of a recurring nature, but this to us seems equally speculative. We agree, of course, with Mr. Gilbert in his submission that the words "other charge" cannot be given their evident meaning and must to some degree be restricted; but the restriction we consider is to be found not in any application of the ejusdem generis rule but rather from the context and the subject-matter, the legislation; and we would add that the general words should not be read more restrictively than required from the context and subject-matter.
  1. Whether general words ought to be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [127] per Spigelman CJ, Handley and Hodgson JJ agreeing.
  2. As Dixon J said in Cody v J H Nelson at 649:
[i]t is wrong to use the rule for an ejusdem-generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter but secundum quid. It should be used as a guide in a process of interpretation which takes into account the whole instrument and the subject matter.
  1. Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy. More recently it has been emphasised that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71]; Alcan at [47].
  2. As a preliminary observation, the applicant’s submission focussed itself on aspects of s 73A, absent any real consideration of the broader context in which that text appears. Rather, the submission placed heavy reliance on a dictionary definition of “defences” and the ejusdem generis rule.
  3. Both parties referred to the history of the provision.
  4. I note at the outset, that the long title to the Defence Act is “An Act to provide for the Naval and Military Defence and Protection of the Commonwealth and of the several States”. An Act is to be read as a whole, with the title being part of the Act: s 13(2)(a) Acts Interpretation Act. It is to be taken into account in considering the context in which the other provisions appear, it may indicate the purpose of the Act, and therefore may provide colour to those provisions. The Defence Act deals with the ADF (and the consequent protection of the Commonwealth and States), which, as the respondents contended, is a broad subject matter. The heading to s 73A, which is also part of the Defence Act, is “Unlawfully giving or obtaining information as to defences”.
  5. The existence of a provision relating to the disclosure of information relating to defences, has formed part of Commonwealth legislation since the enactment of the Defence Act in 1903. Prior to federation, legislation of Colonial Parliament also reflected the concept: for example: Safety of Defences Act 1890(Qld), s 6; Criminal Code Act 1899 (Qld), s 84, noting there was not necessarily a consistency of language amongst the colonies.
  6. When first enacted, the Defence Act included s 73(4) and (5), which related to the communicating and obtaining of certain information.
  7. Section 73(4) relevantly was then in the following terms:
Any member of the Defence Force or officer in the Public Service of the Commonwealth who -
communicates to any person otherwise than in the course of his official duty any plan document or information relating to any fort battery fieldwork fortification or defence work or to any of the defences of the Commonwealth; [emphasis added]

The italicised portion was introduced by this legislation.

  1. In 1917 amendments were made to the provision, it becoming s 73A, which then relevantly read:
Any member of the Defence Force or officer in the Public Service of the Commonwealth who communicates to any person otherwise than in the course of his official duty any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth or to any factory, or any other naval or military information shall be guilty of an offence [emphasis added]

Again the italicised portion was introduced by this legislation. I note also that the wording of “to any defences of the Commonwealth” was altered.

  1. These amendments were made during Australia’s involvement in World War I, extrinsic material reflecting that at the time the offence was originally framed in peace time, and the practical experience of war where Australia was fighting “in foreign and enemy countries” had “shown the necessity for amendment in order to remove doubts concerning several of the provisions”: Australia, House of Representatives, Debates (1917) Vol HR38, p 2175; Australia, Senate, Debates (1917) Vol S32 p 816.
  2. The current and relevant form of the provision which is recited above at [70], was enacted in 2001: Defence Legislation Amendment (Application of Criminal Code) Act 2001 (Cth). This included “or to any factory, or air force aerodrome or establishment or any other naval, military or air force information”. The italicised words were added by the amendment.
  3. It is apparent that with each iteration of the provision, there has been a broadening of the concepts involved.
  4. The inclusion of “any defences of the Commonwealth” had the effect of broadening the provision, as did, the final phrase in the provision, “or any other naval, military or air force information”. Notably, that final phrase is confined to the concept of “information” rather than “plan, document, or information” which appears in the beginning of subsection 73A(1)(a) and applies to the preceding terms in the provision. Moreover, if that final phrase is to be given any work to do, it must be broader than the concept of physical buildings or installations infrastructure as those concepts are necessarily encompassed in the preceding terms.
  5. The applicant’s submission that the phrase “or any other naval, military or air force information” is limited by the preceding words “any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment,” is not supported by the text of the provision considered in context, and given its purpose.
  6. The applicant relied heavily on a dictionary definition of “defences,” for example: “plural. (a) Structures which defend or strengthen a place or position against attack; defensive works; fortifications”: Oxford English Dictionary. From that, the applicant described the wording in the amendments as falling within that definition and the preceding terms of the provision.
  7. As argued in writing, the applicant originally submitted that “other naval, military or air force information” means “information about naval, military or air force buildings or installations”. However, during the course of oral submissions the applicant accepted that matters such as troop placements may fall within the words “any other naval or military information”. Counsel for the applicant submitted that “troop placements are of the same genus, albeit human resources rather than physical resources. They are of the same genus of the kinds of forts, batteries, fieldwork, fortifications and other defence work which is described in the section: placements of defence infrastructure, human or otherwise, which might provide succour or assistance to an adversary”.
  8. The applicant did not have any submission as to the relevance of the fact that the last phrase is confined to “information”. Rather, the applicant submitted that it was difficult to interpret and any ambiguity should be resolved in favour of the subject in refusing to extend a criminal offence. When pressed, the applicant submitted that the relevant question related to what is the content of the information which is caught by the provision. The implication of the applicant’s submission on this point is that the reference to “information” at the end of the subsection, in contrast to “any plan, document or information” which appears earlier in the section, is irrelevant when construing the meaning of the provision. That proposition cannot be correct. The word “information” in the last phrase absent the words “plan” and “document” is plainly relevant to assessing the content of the terms immediately preceding it, in the context of the provision. The use of the word “information” only cannot be ignored because it does not suit the interpretation sought.
  9. Indeed, the applicant determined the mischief the provision sought to address only by reference to its conclusion as to the meaning of the terms therein. On that basis it submitted the provision sought to address communication of information otherwise than in the course of official duty that could provide assistance to an adversary in some way such as the placement or layout or operations of a fort, battery, fieldwork, fortification or other physical structure: placements of defence infrastructure, human or otherwise, which might provide succour or assistance to an adversary.
  10. If the mischief which the provision sought to address was the communication of information otherwise than in the course of official duty which might provide succour or assistance to an adversary, given the breadth of the terms used in the provision, including the final phrase, there is no reason to confine it to concepts of infrastructure. Work must be given to the final phrase of the provision.
  11. Moreover, the applicant’s submission that if the last phrase “any other naval, military or air force information” is not confined by the earlier terms in the way it contends for, then the provision would purport to criminalise a vast array of wholly innocuous information – historic information, non-current information, public-domain information – is incorrect. Leaving aside that the same criticism could be said of public or generally available information about physical buildings or installations, this submission is inconsistent with what the applicant identifies as the mischief the provision seeks to address, communication of information otherwise than in the course of official duty that could provide assistance to an adversary.
  12. As the respondents correctly submitted, the provision is a secrecy provision. It is directed to protecting information, sourced from within the ADF or the public service, of a kind that is confidential, that is deliberately kept from general knowledge. It is an offence provision which relates to material that the person is not permitted to communicate except in the course of their official duty. This necessarily implies an element of a duty not to disclose. That characterisation of the provision applies regardless of the construction of the words in s 73A(1)(a).
  13. There is no basis in the text of the provision, given the structure of the provision, its context and purpose, to restrict the meaning of “defences” to physical defences, or information concerning “physical buildings or installations”. Nor is there any basis to confine it to the placement of defence structure, human or otherwise. There is no justification from the text, context or subject matter to restrict the general expression by the terms preceding it.
  14. Moreover, as the respondents submitted, other dictionary definitions of “defences” and “military” are broader than that relied on by the applicant. Regardless, while there are circumstances where such definitions can be referred to in the process of interpreting a provision, a dictionary is not the starting point of statutory construction, and caution must be exercised: see for example: Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [23] per French CJ, Hayne, Kiefel, Gageler and Keane JJ; Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FCAFC 117; (2012) 206 FCR 92 at [68]- [71] per Kenny, Edmonds and Robertson JJ. The words in the provision take their meaning from the text, context and purpose in which they appear.
  15. As the respondents contended, a purposive reading of the provision is to be taken: see for example, s 15AA Acts Interpretation Act.
  16. I accept the respondents’ submission that given the terms of the provision in the context of the Act, the “defences” of the Commonwealth and the States encompass both physical infrastructure (forts, batteries, etc) and intangible aspects of Australia’s defence, including military know-how, troop numbers, capabilities and deployments, of the military, navy and air force. This would include battle plans, tactics techniques and procedures, including ROEs of the defence forces. These are all matters which, to use the applicant’s description, might provide succour or assistance to an adversary.
  17. Defence force documents, some bearing the security classification “SECRET” and the caveat “AUSTEO”, including ROEs, are capable of falling within s 73A.

Terms of the warrant

  1. The applicant’s argument stemming from the construction of s 73A appears to be twofold: first, that the reference to “military information” in the first two offences in the third condition of the warrant is misleading or uncertain as it would not have been understood by the reader to have a limited meaning, and second, that Registrar Kane could not have formed the state of satisfaction required by s 3E because the material authorised to be seized by the warrant – matters relating to the Afghan Files Stories – could not constitute “military information” within s 73A and therefore the only available inference is that he misunderstood its meaning, thereby proceeding on an incorrect understanding of the relevant law (s 73A).
  2. First, at the base level, both aspects of the submission are premised on the correctness of the interpretation of that phrase that the applicant contends for. For the reasons given above, that interpretation is incorrect. The provision does not have the limited meaning on which these arguments are premised.
  3. Second, the applicant’s submission that the references to “military information” in the 73A offences is misleading because it divorces the words from their context, and implies that the whole of the description in the offence provision must be recited in the offences. This is incorrect. Even leaving aside that the statement of the offence in a search warrant need not be made with the precision of an indictment: Beneficial Finance at 533; Caratti at [37], such recitation would not be required in an indictment. Rather, it is usual practice to refer only to that part of the description relevant to the offence.
  4. Third, for the reasons given above at [118] there is no reason to suppose nor any basis to contend that the reader of the warrant would have misunderstood the meaning of “military information” in the context in which it appeared in the warrant to mean anything other than what it means in the context of the relevant offence provision. A warrant is to be read as an instrument made under a relevant Act: Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24 at 41 per McHugh JA citing Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 171-172. The military information referred to is of the kind in s 73A. As explained above, the two authorities referred to by the applicant to suggest otherwise, Dunesky v Elder and Polley v Johnson, relate to circumstances and issues which are factually distinguishable from this case. Given the interpretation of s 73A, there is no basis to contend that the words in the first two offences in the third condition of the warrant would have been understood as having a wider scope than the statutory words. For the reasons given in relation to ground 2, while the military information is not particularised, the warrant read as a whole makes the nature of this information clear. Given the terms of the offences in the warrant, understood, in particular, in light of the second condition, the type of information the subject of the offences was evident from the terms of the warrant.
  5. Similarly, for the reasons given above, there is no basis to suppose that Registrar Kane misunderstood the offence provision.
  6. Moreover, given the correct interpretation of s 73A it is plain that the material authorised to be searched for by the warrant – relating to the Afghan Files Stories – could constitute the subject matter of the relevant offences in the third condition. There is no basis to contend that Registrar Kane could not have formed the requisite state of satisfaction under s 3E. There is no basis to challenge the correctness of his statement on the face of the warrant, that he was satisfied by information on oath that there were reasonable grounds for suspecting there was (or would be) evidential material which satisfies the three conditions of the warrant (including in relation to the offences in the third condition).
  7. The warrant is not invalid on this basis.

Severance

  1. Given my conclusion the question of severance does not arise. However, I propose to make an observation in relation to the applicant’s submission that if the first two offences were severed from the warrant it would operate differently.
  2. The principles regarding severance are well established. Whether severance can take place will depend on whether the invalid part of the search warrant can be separated from the valid parts remaining: Caratti at [46]-[47]; Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334 (Parker) at 350 per Jackson J (with whom Bowen CJ and Lockhart J relevantly agreed). This will not be possible “where the invalid provision forms part of an inseparable context or would operate differently or produce a different result from that which was intended”: Peters v Attorney-General for New South Wales (1988) 16 NSWLR 24 at 41 per McHugh JA. If the valid and invalid parts of the warrant are so interlinked they cannot stand without the other, they are not truly separate: Parker at 350. At the very least the applicant, in opposing severance, bears the onus of showing that if the invalid portion were severed, the warrant “would have operated differently, or would produce a different result to that intended”: Caratti (No 2) at [236].
  3. The applicant submitted that the warrant would have operated differently if the first and second offences in the third condition of the warrant were to be severed. It submitted that this is because the first two offences were concerned with the provision and receipt of military information which could include intangible matters, matters of information, knowledge, however the third and fourth offences related to physical property, and the fifth offence relates to a fact or document, so both intangible and tangible, but in respect of a single day rather than the broad time period specified for the first four offences. If severed, the applicant submitted that the warrant would become much narrower as it would only authorise a search for stolen property, physical property, within that period in the third and fourth offences, and a search for a fact or document on a single day in the fifth offence. That is an incorrect interpretation of the warrant. The recital to the third condition is important; it reflects that the third condition captures material for which there are reasonable grounds for suspecting will afford evidence as to the commission of the offences in the third, fourth and fifth offences; the material which could be seized would not be confined to the stolen or received property only. Moreover, each of those offences (as with the first two) require proof of physical and fault elements. Contrary to the applicant’s contention, the warrant would not relevantly be narrower.
  4. On that basis, if the issue of severance had arisen, the first two offences could properly be severed and the warrant would not have operated any differently.

Remaining grounds

  1. Common to the applicant’s submission on the remaining grounds is its reliance on the importance of protecting the identity of a confidential source (source protection), and the consequences of the failure to do so. Professor Ricketson’s evidence is directed to these topics. As there is a live issue as to the state of the law in respect to source protection, it is appropriate to consider the respective arguments and the objections to Professor’s Ricketson’s evidence before addressing the remaining grounds.

Source protection

  1. It is appropriate to start, as the applicant did, with the passage from Cojuangco as follows at 354 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ:
The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of a litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information.
  1. It is the last two sentences on which particular reliance was placed. So much may obviously be accepted.
  2. However, as the respondents submitted, while noting that this case related to defamation proceedings (being a private remedy that can be invoked by a citizen), the observations immediately following that passage are relevant. Despite the length of the passage, given its significance, it is appropriate that it is repeated in full:
...It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media.

That is why the courts have refused to accord absolute protection on the confidentiality of the journalist's source of information, whilst at the same time imposing some restraints on the entitlement of a litigant to compel disclosure of the identity of the source. In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice. So, generally speaking, disclosure will not be compelled at an interlocutory stage of a defamation or related action and even at the trial the court will not compel disclosure unless it is necessary to do justice between the parties.

The liability of the media and of journalists to disclose their sources of information in the interests of justice is itself a valuable sanction which will encourage the media to exercise with due responsibility its great powers which are capable of being abused to the detriment of the individual. The recognition of an immunity from disclosure of sources of information would enable irresponsible persons to shelter behind anonymous, or even fictitious, sources.

In conformity with what we have said, the newspaper rule has been held to have no application to commissions of inquiry: McGuinness; Attorney-General v. Clough (1963) 1 QB 773; Mulholland. In Granada Lord Salmon sought to explain Clough and Mulholland on the ground that disclosure of sources of information was ordered in those cases because the public interest in national security necessarily outweighs the public interest in the free flow of information. No such explanation is available to undermine the authority of this Court's decision in McGuinness. There the Court unanimously held that the refusal of an editor of a newspaper to answer relevant questions before a Royal Commission relating to his sources of information could not be supported and that he had no lawful excuse for refusing to answer questions.

In that case Dixon J. authoritatively explained (at pp 104-105) the nature and effect of the newspaper rule:
"The foundation of the rule is the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns from the consequences of unnecessary disclosure of their identity. ... The appellant stands upon these decisions and says that they disclose a development which, in reason and logic, should not stop at discovery, but should supply a general justification for withholding the names of contributors and the sources of information at all stages of any legal proceeding. The answer is that it is not a rule of evidence but a practice of refusing in an action of libel against the publisher, &c., of a newspaper to compel discovery of the name of his informants. It 'rests not on a principle of privilege but on the limitations of discovery', to quote the comment of Professor Wigmore, who expresses himself somewhat strongly against the pretensions to a privilege on the part of journalists (Treatise on Evidence, 2nd ed., vol. 5, sec. 2286, n. 7)."
Two factors of importance emerge from Dixon J.'s comments. First, the rule is one of practice, not of evidence. Secondly, although the rule rests on a recognition of the public interest in the free flow of information, the law gives effect to that recognition of the public interest by exercising a discretion to refuse to order disclosure of sources of information in interlocutory proceedings in defamation and, perhaps, other analogous actions, even though disclosure would be relevant to the issues for trial in the action. The law does not protect that public interest to the extent of conferring an immunity on the media from disclosure of its sources.
  1. Those passages put in their proper context the passage relied on by the applicant.
  2. The respondents submitted on that basis, that while the “newspaper rule” from Cojuangco applies “when there’s a private right that can be invoked and misused”, it is not a principle of privilege of broader application and it does not assist in this case.
  3. In this context, the respondents also referred to two decisions of the Supreme Court of the United States of America.
  4. The first was Branzburg v Hayes et al [1972] USSC 169; 408 US 665 (1972) (Branzburg), a decision concerning the First Amendment, which confers an express prohibition on abridging the freedom of the press, where the issue for consideration was the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime. The argument was that “reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future" and that “[t]his asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them”: at 682. The Court rejected this claim.
  5. As to the argument about the effect of such a decision on the flow of news, the Court observed at 693-694 that:
Estimates of the inhibiting effect of such subpoenas on the willingness of informants to make disclosures to newsmen are widely divergent and to a great extent speculative. It would be difficult to canvass the views of the informants themselves; surveys of reporters on this topic are chiefly opinions of predicted informant behaviour and must be viewed in the light of the professional self-interest of the interviewees.
  1. Despite that, the Court observed at 694-695:
Reliance by the press on confidential informants does not mean that all such sources will, in fact, dry up because of the later possible appearance of the newsman before a grand jury. The reporter may never be called and if he objects to testifying, the prosecution may not insist. Also, the relationship of many informants to the press is a symbiotic one which is unlikely to be greatly inhibited by the threat of subpoena: quite often, such informants are members of a minority political or cultural group that relies heavily on the media to propagate its views, publicize its aims, and magnify its exposure to the public.

...

Accepting that fact, however, that an underdetermined number of informants not themselves implicated in crime will nevertheless, for whatever reason, refuse to talk to newsmen if they fear identification by a reporter in an official investigation, we cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future.
  1. The Court continued at 700-701:
We do not deal, however, with a governmental institution that has abused its proper function, as a legislative committee does when it "expose[s] for the sake of exposure." Watkins v. United States, [1957] USSC 87; 354 U. S. 178, 354 U. S. 200. Nothing in the record indicates that these grand juries were "prob[ing] at will and without relation to existing need." DeGregory v. Attorney General of New Hampshire, [1966] USSC 65; 383 U. S. 825, 383 U. S. 829 (1966). Nor did the grand juries attempt to invade protected First Amendment rights by forcing wholesale disclosure of names and organizational affiliations for a purpose that was not germane to the determination of whether crime has been committed, cf. NAACP v. Alabama, [1958] USSC 150; 357 U. S. 449 (1958); NAACP v. Button, [1963] USSC 9; 371 U. S. 415 (1963); Bates v. Little Rock, [1960] USSC 19; 361 U. S. 516 (1960), and the characteristic secrecy of grand jury proceedings is a further protection against the undue invasion of such rights. See Fed.Rule Crim.Proc. 6(e). The investigative power of the grand jury is necessarily broad if its public responsibility is to be adequately discharged. Costello v. United States, 350 U.S. at 350 U. S. 364.

The requirements of those cases, which hold that a State's interest must be "compelling" or "paramount" to justify even an indirect burden on First Amendment rights, are also met here. As we have indicated, the investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen, and it appears to us that calling reporters to give testimony in the manner and for the reasons that other citizens are called "bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification." Bates v. Little Rock, 361 U. S. 525. If the test is that the government "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest," Gibson v. Florida Legislative Investigation Committee, [1963] USSC 52; 372 U. S. 539, 372 U. S. 546 (1963), it is quite apparent (1) that the State has the necessary interest in extirpating the traffic in illegal drugs, in forestalling assassination attempts on the President, and in preventing the community from being disrupted by violent disorders endangering both persons and property; and (2) that, based on the stories Branzburg and Caldwell wrote and Pappas' admitted conduct, the grand jury called these reporters as they would others -- because it was likely that they could supply information to help the government determine whether illegal conduct had occurred and, if it had, whether there was sufficient evidence to return an indictment.
  1. The second case referred to was Zurcher, Chief of Police of Palo Alto et al v Stanford Daily et al [1978] USSC 182; 436 US 547 (1978) (Zurcher) which concerned the Fourth Amendment, which prohibits unreasonable search and seizure without probable cause. The argument was that where a third-party search related to a newspaper, there are additional factors derived from the First Amendment, such that there was “a nearly per se rule forbidding the search warrant and permitting only the subpoena duces tecum”. The general submission being “that searches of newspaper offices for evidence of crime reasonably believed to be on the premises will seriously threaten the ability of the press to gather, analyse and disseminate news”. Reliance was placed inter alia, on the submission that confidential sources of information and “the processing of news and its dissemination will be chilled by the prospects that searches will disclose internal editorial deliberations”: at 564. The Court concluded at 565, applying its earlier decision ofBranzburg, that:
Properly administered, the preconditions for a warrant - probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness - should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.
  1. As the applicant correctly pointed out the constitutional context between Australia and the United States is very different: see for example, Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328 at [466] per Gordon J. Because the implied freedom of political communication under the Australian Constitution operates solely as a restriction on power and only to the extent necessary to maintain the constitutionally prescribed system of government, the notion of speech as an affirmative value has no role to play: Brownat [459]. However, reliance by the respondents on these authorities was not to suggest that United States constitutional law jurisprudence ought to be applied in Australia (as was sought in Brown) but rather to illustrate the nature, effect and limit of journalist’s protection, even where freedom of speech is expressly protected by the First Amendment (which has no role to play in the concept of the implied freedom: Brown at [459]). The cases were relied on as being illustrative of the importance of, and obvious public interest in, the investigation of criminal offences.
  2. The respondents also referred in the Australian context to Nicholls v Director of Public Prosecutions for South Australia [1993] SASC 3964; (1993) 61 SASR 31 (Nicholls) and Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207 (Cornwall).
  3. In Nicholls the Court considered the issue of contempt where the contemptor was a journalist and where reliance was placed by the journalist on the Australian Journalists Association Code of Ethics, relevantly clause 3, which provided that “in all circumstances they shall respect all confidences received in the course of their calling...”. I note that this is relevantly in the same terms as the current clause three of the MEAA Code. Justice Perry observed at [45] “that the most that the courts have been prepared to do is to express the rule in negative terms, that is to say, to act on the principle that disclosure of a source will not be required unless it is necessary in the interests of justice”. His Honour recited a passage from Cojuangco(which is encompassed in the passage referred to above at [184]), and concluded that notwithstanding “the apparent belief on the part of the appellant that the Code of Ethics operated to reinforce what he regarded as an absolute obligation”, he doubted that the Code of Ethics could have been intended to operate in the way suggested, as to do so would be to elevate the preservation of confidences received by a journalist in the course of their calling to a position, above the law of the land, which it does not have: at [46]. As his Honour observed, the courts have refused to recognise an absolute privilege in favour of journalists.
  4. This decision was applied in Cornwell, where a journalist refused to answer a question before the ICAC on the basis of the MEAA Code of Ethics. As Abadee J concluded at 240, relying on the conclusion of Perry J above in Nicholls, the Code is subject to the law of the land. Justice Abadee concluded that the Code did not provide a “reasonable excuse” within the meaning of the Independent Commission Against Corruption Act 1988 (NSW) and therefore, was not a defence to a charge of contempt.
  5. As the applicant submitted in reply, these two decisions were before Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (Lange) and before the introduction of s 126K. However, these decisions, amongst other things, relate to the interpretation of journalists’ codes of ethics which are relied on in this case. There is nothing in Lange or s 126K which relevantly alters that. There is no absolute privilege and the journalists’ code of conduct in the present case cannot elevate it to that status; the codes must be read subject to the law of the land. I note also in relation to Cornwall, as discussed below, s 126K does not apply to non-curial proceedings, and so would have no application in the circumstances of a compulsory examination considered in that case.
  6. While the protection of journalists’ sources has been given statutory recognition and some protection in s 126K of the Evidence Act, there is an issue between the parties as to the reach of that provision. The applicant contended that it applies to search warrants, relying primarily on the Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) (ALRC Report), in particular on Recommendation 14-1, which recommended that the client legal privilege provisions of the Uniform Evidence Acts should apply to any compulsory process for disclosure including non-curial contexts including search warrants and notices to produce documents. From that the applicant argued that language from the recommendation is included in s 126K, and therefore, it should be taken to extend to production of documents in the execution of search warrants.
  7. The respondents took issue with that proposition, relying on the text of the relevant provisions, its legislative history and the extrinsic material. The respondents’ submission must be accepted.
  8. Section 126K is in the following terms:
126K Journalist privilege relating to identity of informant

(1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.

(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:
(a) any likely adverse effect of the disclosure on the informant or any other person; and

(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
  1. It follows that there is no absolute protection as a Court may make an order to compel disclosure of the identity of the informant in the identified circumstances.
  2. The extent of the scope of s 126K is addressed in s 131A:
131A Extended application of Division 1C

(1) This section applies if, in response to a disclosure requirement, a person claims that they are not compellable to answer any question or produce any document that would disclose the identity of the informant (within the meaning of section 126K) or enable that identity to be ascertained.

(1A) A party that seeks disclosure pursuant to a disclosure requirement may apply to the court for an order, under section 126K, that subsection 126K(1) does not apply in relation to the information or document.

(2) In this section, disclosure requirement means a court process or court order that requires the disclosure of information or a document and includes the following:
(a) a summons or subpoena to produce documents or give evidence;

(b) pre‑trial discovery;

(c) non‑party discovery;

(d) interrogatories;

(e) a notice to produce;

(f) a request to produce a document under Division 1 of Part 4.6.
  1. A number of observations can be made.
  2. First, the text of s 126K makes plain that a journalist is not compellable to “answer any question” or “produce any document” that would disclose the identity of an informant. Neither of those concepts describe what occurs in the execution of a search warrant. “Producing” a document applies to subpoenas and notices to produce, not a search warrant which authorises the search for and seizure of evidential material. Nor can a search warrant be used to compel an answer to a question.
  3. Second, s 131A provides that the extended application of s 126K applies only in relation to a “disclosure requirement” which is defined as “a court process or court order that requires disclosure of information or a document” and includes the matters enumerated therein at ss (2)(a)-(f); that list does not include search warrants. For the reasons in the paragraph above, the concepts described in that definition do not describe what occurs under a search warrant. The identified matters in ss (a)-(f) all relate to processes where court proceedings are necessarily already on foot, and s 126K makes clear that the public interest is to be considered in light of those proceedings.
  4. Third, the history of the provision and the relevant extrinsic material also demonstrates that s 126K does not apply to search warrants. The first iteration of the protection was in the Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth). That Act inserted into the Evidence Act Division 1A entitled “professional confidential relationship privilege”, which relevantly included s 126A which applied to a “protected confidence” which was defined as “...a communication made by a person in confidence to a journalist”, and provided that the court had a discretion to direct that the evidence not be adduced if adducing it would disclose a protected confidence, the contents of a document recording a protected confidence or protected identity information: s 126B. The provisions set out the relevant considerations in exercising that discretion, including the probative value of the evidence and the nature and gravity of the relevant offence: s 126B. It specified circumstances where the privilege was lost: s 126C (consent of protected confider), s 126D (misconduct). Section 131A, the extended application provision was enacted, which enumerated the processes to which the provision applied, which were all court orders. Search warrants were not included. The relevant extrinsic material, the Explanatory Memorandum, Evidence Amendment (Journalists Privilege) Bill 2007 (Cth), referring to s 131A stated “[t]he privilege does not apply to investigatory and other non-curial processes such as search warrants or notices to produce issued by investigatory agencies”: at [19].
  5. The provisions were amended in 2011 by the Evidence Amendment (Journalists’ Privilege) Act 2011 (Cth), which repealed Division 1A and substituted a new Division 1A entitled “Journalists’ privilege”. Section 126H became the provision relating to the protection of journalists’ sources, and was in the same terms as the current s 126K. Section 131A(1) was also amended, but ss (2), which enumerated the processes to which s 126H applied, remained unchanged. The amendment to s 131A(1) had the effect of extending the application of s 126H to pre-trial proceedings: Explanatory Memorandum, Evidence Amendment (Journalists’ Privilege) Bill 2010 (Cth) at [28]. Search warrants were not included.
  6. It is important to note that the 2011 amendment occurred after Victoria had included search warrants in s 131A(2) of its version of the Evidence Act. It is the only Uniform Evidence Act that contains this provision. The Commonwealth clearly made a deliberate choice not to do so.
  7. The further amendment to the provisions by the Civil Law and Justice (Omnibus Amendments) Act 2015, renumbered the provision from s 126H to s 126K.
  8. As is apparent, contrary to the applicant’s contention, the ALRC Report recommendation was not accepted in full. In any event, the ALRC Report was not the relevant extrinsic material, in light of the statements in the Explanatory Memoranda. I note also in this context that the applicant’s reliance on the first reading speech of Andrew Wilkie, submitting that it relied “on the whole of that speech as informing the logic underlying the manner in which [s 126K] has been drafted,” does not assist. That Mr Wilkie referred to the particular importance of defence information and the intention that the amendments would “foster freedom of the press and better access to information for the Australian public,” does not overcome the plain terms of the legislation, or the accompanying relevant Explanatory Memoranda.
  9. I note also the applicant’s submission (only made in its written reply in opening and not advanced orally) that its construction of s 126K is consistent with the absence of reference to search warrants in s 131A as that provision only applies to court processes, is incorrect. The submission is inconsistent with the plain text of the provision, which is headed, “extended application of Division 1C”. The provision is not about court processes, but rather specifies the context in which s 126K applies. Again, this submission is inconsistent with the Explanatory Memoranda to the relevant provisions.
  10. The submission also belies the applicant’s repeated reliance on s 126K of the Evidence Act 2008 (Vic), in which its s 131A extends the application of s 126K to search warrants.
  11. This submission is also inconsistent with the argument it advanced in its opening written submission where, recognising that in contrast to the Victorian provision, s 131A did not expressly extend to search warrants, it submitted that s 126K impliedly extends to search warrants, based on comments of Wilson J in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 (Baker v Campbell) at 95-96. The submission based on the proposition that legal professional privilege is an analogous concept, is misplaced. Legal professional privilege is a substantive rule of law and not a rule of evidence: Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 93 ALJR 967 (Glencore) at [21] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ, whereas s 126K is a discretionary rule of evidence created by the Evidence Act. Legal professional privilege “is not merely an aspect of curial procedure or a mere rule of evidence but a substantive right founded upon a matter of public interest”: Glencore at [21], citing Baker v Campbell. The applicant’s submission is that it is necessary to have a source protection condition in the warrant (as with legal professional privilege) because otherwise any future claim for protection under s 126K, if proceedings are later instituted, would be ineffective. Even leaving aside the different nature of legal professional privilege, that submission cannot overcome the terms of s 126K.
  12. The applicant’s submission elevates source protection to a position which, on the current state of the law, it does not have.
  13. Two matters flow from that discussion as to source protection.
  14. First, for the reasons above, s 126K of the Commonwealth Evidence Act does not apply to search warrants. As drafted, the provision also does not apply to other investigative non-curial processes, for example, compulsory examinations.
  15. I note also that the applicant did not submit that Cojuangco could provide a basis for its claim for source protection over the four documents which are still in issue in this case.
  16. Second, in so far as source protection does exist, the analysis addresses the suggestion that any rules about protecting the confidentiality of a source are absolute. While the applicant repeatedly stated it was not arguing for a position of immunity for journalists, an absolute position, underlies its argument. It is based on the risk that revealing the identity of sources reduces the willingness to provide information. So much was obvious from the applicant’s reliance on Professor Ricketson’s evidence, where he states inter alia that once a journalist makes an agreement to keep the identity of a source confidential, the MEAA Code requires them to keep it, and that means refusing to reveal the source’s identity including non-compliance with any court order even if that means going to goal. That reading of the MEAA Code is inconsistent with authority. The MEAA Code cannot apply in absolute terms. Nor, where it applies, does s 126K.

Professor Ricketson’s evidence

  1. Having considered the issue of source protection it is appropriate to return to the objections to Professor Ricketson’s evidence.
  2. As noted above, the respondents objected to the report contending it was irrelevant as the applicant had abandoned its challenge to the validity of the relevant provisions. The applicant contended that it was relevant to the argument in ground 1 ([18A] OA). If the respondents are correct as to the threshold submission, Professor Ricketson’s evidence does not arise for consideration. However, if Professor Ricketson is properly qualified and there is a proper foundation for the opinion he expresses (in paragraphs [21], [22] of the report), that evidence is capable of being relevant to the applicant’s submission on ground 1, given the manner in which that argument was advanced.
  3. However, the respondents also submitted that the applicant had not established that Professor Ricketson was qualified to give the opinion which is at the crux of his report at paragraphs [21] and [22] (as extracted above at paragraph [46]), that is, the purported “chilling effect” that the risk of disclosing sources “would have” on prospective informants who work within institutions, including military and intelligence services.
  4. It may be recalled that the applicant submitted that the respondents were cavilling with what was submitted to be an unexceptional proposition, namely the observations in Cojuangco referred to above.
  5. The respondents, while not disputing that Professor Ricketson is “in general terms... an expert in the media”, contended that there was nothing in Professor Ricketson’s curriculum vitae that showed he had direct experience dealing with secret sources in the military or intelligence services or, other institutions. Further, the respondents submitted that the crux of what the applicant relies upon in paragraph [22] of his report is essentially “no more than speculation as to future events based on a body of experience that this witness has not had himself”. The respondents contended that, in essence, the evidence is that Professor Ricketson had “unidentified conversations with journalists...in which unparticularised assertions have been made about these things” and Professor Ricketson “purports to summarise them in this rolled up hearsay way”.
  6. The applicant’s response to the objection was that the report sets out his qualifications. In particular, in response to the challenge that direct experience for this opinion was not identified, the applicant pointed to four items in Professor Ricketson’s curriculum vitae; a book chapter authored by Professor Ricketson , published in 2018, “When one person’s noble whistleblower become another’s poisonous leaker” (published in Lidberg and D Muller (eds), “In the name of security–secrecy and surveillance and journalism” (pp 101-120)); a panel Professor Ricketson had chaired as part of the “Non fiction now Conference” at RMIT on 21-24 November 2012 entitled “The role of the media in a Democracy” including guest speakers from the ABC, the Centre for Advancing Journalism and other Australian universities; a presentation given by Professor Ricketson at the Media and Privacy Law Conference on 11-12 October 2012 entitled “The relationship between journalists and their sources”; and a paper delivered by Professor Ricketson at a symposium at the University of Canberra on 22 June 2010 entitled “Unmasking Abu Ghraib”.
  7. Section 79(1) of the Evidence Act must be understood in its statutory context. Section 76(1) of the Evidence Act provides that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". That exclusionary rule is referred to in the Evidence Act as "the opinion rule". Section 79(1) of the Evidence Act provides that:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
  1. In order for Professor Ricketson to proffer the opinion in paragraphs [21] and [22] of his report, it is necessary for the applicant tendering his evidence to demonstrate: first that he had specialised knowledge based on his training, study or experience that permitted him to express the opinion in relation to the effect on prospective informants in institutions, including military and intelligence services which deem material to be secret; and second, it would have been necessary for the party tendering the evidence to demonstrate that the opinion he expressed was wholly or substantially based on that knowledge: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 (Dasreef) at [35] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Section 79 of the Evidence Act requires that the opinion is presented in a form which makes it possible to answer that question: Dasreef at [36] citing HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 (HG v The Queen) at [39] per Gleeson CJ. A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight: Dasreef at [42].
  2. Professor Ricketson’s background and professional qualifications are detailed in his report which also attached a curriculum vitae. Those qualifications are not questioned. It was not disputed by the respondents that, in general terms, he is an expert in the media. That, however, does not focus on the correct question. Given the specific opinion proffered in paragraphs [21] and [22], which is on the prospective effect on persons working within institutions, including military and intelligence services who deal with information deemed to be secret, what is notably absent from the report is any identification of what, if any, of those qualifications provide the basis for the expertise to express an opinion on that topic.
  3. Of the four items pointed to by the applicant (see [224] above), only the first of these papers is before the Court, tendered by the respondents. A reading of the paper reflects it does not relate to the issue on which he has proffered the opinion. Instead, it uses a number of specific case studies (none of which are relevant to the present circumstances) to deal with whistleblowers and leakers in the context of digital technologies and the risk that granting such sources anonymity may “mask a myriad of sins”. Despite a broad assertion made by the applicant that the remaining three items relied on show that Professor Ricketson has “engaged with this area” sufficiently to “at least regard the area of expertise as encompassing it”, these items are unexplained both as to content and relevance to establishing the expertise required, and how they formed the basis of the opinion.
  4. There is no identification in the report, or the evidence led, connecting the opinion he expressed in paragraph [22] with his specialised knowledge based on training, study or experience.
  5. There was no attempt by the applicant to adduce evidence from Professor Ricketson to answer the challenges made. Professor Ricketson’s cross-examination included matters going to his qualification in relation to the opinion he proffered, but there was no re-examination addressed to the issue. The cross-examination on this topic, referred to at [57] above, reflects the lack of foundation for the opinion. He was not asked in re-examination, the basis for the opinion.
  6. Professor Ricketson’s opinion describes a “chilling effect”. While that phrase has a particular meaning under US constitutional law, (especially in the context of the First Amendment) the High Court has stated that in respect to the implied freedom, the term “has relevantly been used only to describe an effect of inhibition or deterrence on the freedom and for the purpose of determining the practical effect upon political communication and debate”: Brown at [151] referring to the High Court judgments of Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 131, 135, 155-7, 174, 185 and Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [102] in which the phrase has been used. Brown makes clear that the US doctrine of “chilling effect” has no place in the Australian constitutional context: see e.g.Brown at [262] per Nettle J.
  7. If Professor Ricketson’s use of “chilling effect”, was no more than to describe that the risk of disclosure of an informant’s identity may have an adverse effect on persons who might come forward, that proposition would be unexceptional. As noted above, if the relevance of the evidence amounts to no more than the proposition in Cojuangco, one might think his evidence would have been unnecessary.
  8. However, arguably, Professor Ricketson’s evidence was put in terms higher or stronger than that, particularly in so far as the applicant sought to rely on his evidence. It was relied on to submit that the risk of the identity of a confidential source being revealed “would” have a “significant” and “substantial” impact on the willingness of prospective informants to come forward. Professor Ricketson’s opinion related specifically to persons in institutions (including the military and intelligence services) where information may be deemed to be secret. It is that aspect on which the respondents’ objections focussed.
  9. That said, as noted above, the proposition from Cojuangco may be accepted.
  10. Leaving aside the issue of whether Professor Ricketson is qualified to express the opinion relied on, there are other features of his evidence which should be addressed.
  11. First, the evidence was that the MEAA Code is such that once a journalist has promised confidentiality they must keep that promise even if a court order requires them to disclose the source. As discussed above at [182]-[218], courts have not interpreted the MEAA Code in that manner, and source protection, from the legal viewpoint is not as broad as described by the witness.
  12. Second, the premise of Professor Ricketson’s opinion in paragraph [22] is that the “chilling” effect he warns of is based on the risk of an informant’s identity being revealed by the process of the execution of a search warrant. However, that risk will exist (regardless of any conditions on the warrant – see [343] below) unless there is an absolute immunity for journalists and sources in the circumstances described. As discussed above, reliance on s 126K of the Evidence Act does not address this issue.
  13. Third, an expert witness is to be independent: see for example, Makita (Australia) Pty Ltd v Sprowles[2001] NSWCA 305; (2001) 52 NSWLR 705 at [79] per Heydon JA citing Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd ("The Ikarian Reefer") [1993] 2 Lloyd's Rep 68 at 81-82. The cross-examination on this topic, referred to at [59] above, brought to the fore Professor Ricketson’s involvement with the Australian Press Council, MEAA and JERAA, and the policy statements that had been made by such organisations in relation to the execution of the warrant. Professor Ricketson accepted his tweets reflected his personal opinion about the execution of the warrant. Independence is at the heart of the role of an expert in Court proceedings. Apart from their qualifications to give the opinion proffered, it is the fact they are independent that underpins their role in the justice system. However, while objectivity and independence are sought of expert witnesses, those qualities are not preconditions of admissibility of the evidence of an expert. Where a witness has an interest in the resolution of the proceedings, the sanction is not the exclusion of the expert’s evidence, but rather there is a significant risk that it will fail to persuade; Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385; (2012) 202 FCR 564 at [35] per Dodds-Streeton J.
  14. I note there are other specific objections taken to Professor Ricketson’s report.
  15. While the above submissions and discussion focus on Professor Ricketson’s qualification to express the opinion contained in paragraphs [21] and [22], the respondents also make complaints in relation to other paragraphs. This includes that Professor Ricketson is making generalised observations that are not wholly or substantially based on the witness’ specialised knowledge and a complaint that the report does not identify the basis of the opinion. This includes (all or part of) paragraphs [11], [13], [14], [15], [16], [17], [18], [19], [20], [21], [24], and [25]. A number of hearsay objections were made including (all or parts of) paragraphs [13], [14], [16], [17], [19], [20], some interrelated with the objections as to not identifying the basis of the expertise and the opinion given.
  16. In response the applicant submitted, referring to Notaras v Hugh [2003] NSWSC 167, that the basis for an expert’s opinion may be unrecalled learning, experience without recollection of particular instances, including “conversations with colleagues and the like”. On this basis, the applicant contended that it was not necessary for Professor Ricketson to “set out, chapter and verse, conversations that he had with journalists over very many years” to provide an adequate basis for the opinion, and instead “all of the matters that he addresses in his qualifications” were sufficient. The applicant also drew attention to Idoport Pty Ltd & Anor v National Australia Bank Ltd & ors [2001] NSWSC 123 at [197] per Einstein J to submit that a Court should be cautious not to peremptorily dismiss a bona fide attempt by a person with specialised knowledge from being held qualified to express opinions, and therefore, I should be “quite cautious in terms of rejecting the whole report”. Further, the applicant relied upon Barbosa v Di Meglio[1999] NSWCA 307 per Mason P to support the submission that “it would not [be] permissible to exclude [the evidence] on the basis of some unrelated criterion, such as the evidence being argumentative” particularly if the reasoning process relied upon by the expert is sound and supports the opinion.
  17. Each of those authorities were decided before Dasreef where the High Court focussed attention on earlier observations of Gleeson CJ in HG v The Queen at [39] and by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85], that in order to be admissible it is necessary to see that the witness is applying a demonstrated field of expertise, has the expertise by reason of training, study and experience and is applying that expertise to particular matters: Dasreef at [36] - [37]. As was the case in Dasreef, “[t]he point which is now made is a point about connecting the opinion expressed by a witness with the witness's specialised knowledge based on training, study or experience”: at [41].
  18. Most of these objections on that topic are properly made. The report seems to proceed on the assumption that Professor Ricketson could properly speak to all these topics without identifying the basis for the opinions.
  19. A number of the objections, including the objections made in relation to (all or part of) paragraphs [11], [13], [15], [17], are on the basis that the MEAA Code speaks for itself. The applicant submitted that the recitation of this material is not for the truth of the facts asserted therein, but to provide the foundation for the opinions expressed. While the document does speak for itself, that it is recited to provide the basis of the opinion makes it admissible for that purpose only. That said, as I observed above, some aspects of the MEAA Code are not accurately described in his report, which necessarily goes to the weight to be attached to any opinion expressed in relation to those aspects (if they were otherwise admissible).
  20. Against that background I turn to consider the remaining grounds.

Ground 1, OA [18A]: the warrant was beyond power

  1. This ground is based on the claim that the decision to issue the warrant was not authorised by s 3E(1) of the Crimes Act on its proper construction, having regard – in particular – to the implied freedom of political communication.
  2. The applicant submitted that an issuing officer cannot exercise the discretion in s 3E(1) in a way that is inconsistent with the implied freedom, as such an exercise of discretion could not be authorised by the Crimes Act and would therefore be ultra vires: citing Miller v TCN Channel Nine Pty Ltd [1986] HCA 60;(1986) 161 CLR 556 (Miller) at 613 – 614 per Brennan J; Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 (Wotton) at [10] and [21]–[22] per French CJ, Gummow, Hayne, Crennan and Bell JJ; Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [72] and [113] per French CJ and Kiefel J. The applicant submitted that s 3E, the provision under consideration, is similar to the provision considered in Miller in terms of breadth, but unlike the provisions considered in Wotton.
  3. This submission (and that relating to grounds 6 and 7 (OA [23], [24])) which allege that the application for and issuing of the warrant was legally unreasonable) are to be considered in the context where, for the reasons already given, the warrant is otherwise valid.
  4. I noted earlier in these reasons that some of the terminology used by the applicant in support of this ground replicates that used in relation to grounds 2 to 4. In response to questions as to the relevance of my conclusions in respect to grounds 2 to 4 to its argument in this ground, the applicant submitted that if I were to conclude that the warrant was not vague, conclusionary and uncertain, in the sense used in grounds 2 to 4, this would not mean that this ground would necessarily fail. Rather, it submitted that conclusion would be one factor the Court would take into account for the purpose of engaging in the application of the relevant constitutional test necessary to resolve this ground. It was submitted that the precision of the warrant (being grounds 2 to 4) is determined by different principles to those which are concerned with the assessment of the burden on the implied freedom, and that the determination of the issue of the constitutional constraint on the warrant, required a different analysis to that required when determining grounds 2 to 4. The applicant submitted that a warrant could impose a real and meaningful perimeter over the matters to be searched for and still exceed the proper construction of s 3E if the terms in which it is expressed impose a burden on the implied freedom which exceeds what is necessary or adequate in its balance. In relation to ground 1, it submitted that the submission as to the vague and conclusionary terms of the warrant is only one of the reasons why the warrant in these terms was not necessary when applying the relevant constitutional test. This was said to be part of the proportionality analysis that takes place as part of the constitutional inquiry. I return to this submission below.

Threshold question

  1. The respondents raised what they characterised as a threshold difficulty for the applicant’s submission on this ground, and a basis on which this ground should be dismissed. That is, that the applicant does not challenge the constitutional validity of s 3E, either in whole or in the law’s application to the facts of this case, nor does it submit that s 3E would be constitutionally invalid in some of its operations unless it were brought within power through the construction exercise (by preferring a valid construction) or by reading down its terms. As such, the respondents contended that the applicant necessarily accepts that any burden on political communication effected by s 3E is justified (and thus valid) across the whole range of potential outcomes of the exercise of power under that provision. The respondents submitted that that position is correct: s 3E is wholly valid, in all of its operations. On that basis, the respondents contended there is no further work for the implied freedom to do in the applicant’s judicial review claim: Comcare v Banerji [2019] HCA 23; (2019) 93 ALJR 900 (Comcare v Banerji) at [96] per Gageler J. It was submitted that by virtue of the validity of s 3E, the Court must assume that the statutory limits on the discretion are themselves sufficient, without any “implied freedom overlay”, to keep any exercise of power under s 3Ewithin constitutional limits.
  2. The applicant replied that it submitted s 3E would be invalid in some of its operations if it was construed as being capable of authorising Registrar Kane’s decision to issue the warrant in this case. It submitted that the burden on the implied freedom effected by s 3E will not be justified across the whole range of potential outcomes of the exercise of the discretion.
  3. The applicant’s submission is based on the comments of Brennan J in Miller at 613-614, arguing that the discretion in s 3E is similar to that in Miller in that the statute confers a discretion in very general terms, using wide and general language, and therefore, like in Miller the discretion is confined so that an attempt to exercise it inconsistently with the Constitution is beyond power and ultra vires.
  4. The section there under consideration was s 5 of the Wireless Telegraphy Act 1905 (Cth) which was then in the following terms:
Licences to establish, erect, maintain, or use stations and appliances for the purpose of transmitting or receiving messages by means of wireless telegraphy may be granted by the Minister for such terms and on such conditions and on payment of such fees as are prescribed.
  1. The applicant placed particular reliance on the following reasoning at 613-614 (citations omitted):
Yet the s 5 discretion must be exercised bona fide in furtherance of the purpose for which it was given. Of necessity, the area of the discretion must be large: the nature of the subject to be regulated requires that the discretion be wide. But it is not so wide that considerations foreign to the purpose for which the discretion is conferred can be taken into account. Nor can the discretion be exercised to discriminate against interstate trade, commerce and intercourse. That is because a discretion must be exercised by the repository of a power in accordance with any applicable law, including s. 92, and, in the absence of a contrary indication, "wide general words conferring executive and administrative powers should be read as subject to s. 92": per Dixon, McTiernan and Fullagar JJ. in Wilcox Mofflin Ltd. v. New South Wales. In Inglis v. Moore [No.2] St. John J. and I stated the relevant rule of construction:
...where a discretion, though granted in general terms, can lawfully be exercised only if certain limits are observed, the grant of the discretionary power is construed as confining the exercise of the discretion within those limits. If the exercise of the discretion so qualified lies within the constitutional power and is judicially examinable, the provision conferring the discretion is valid.
There is nothing in the context of s. 5 which would exclude this rule of construction...
  1. The applicant also relied on Wotton to establish that the reasoning in Miller applies equally to the implied freedom, but submitted that the provisions there under consideration, ss 132 and 200 of the Corrective Services Act 2006 (Qld), were very different provisions to that in Miller, and in this case. In Wotton, the plurality (French CJ, Gummow, Hayne, Crennan and Bell JJ) observed that the discretionary powers in the Corrective Services Act 2006 (Qld) must be exercised in accordance with any applicable law, including the Constitution, reciting the passage above from Miller in support of that proposition: Wotton at [9], [10]. The plurality accepted at [22] the submission of the Commonwealth that:
(i) where a putative burden on political communication has its source in statute, the issue presented is one of a limitation upon legislative power; (ii) whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law; (iii) rather, the question is whether the repository of the power has complied with the statutory limits; (iv) if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power.
  1. The plurality also accepted at [23] the submission “that if the power or discretion be susceptible of exercise in accordance with the constitutional restriction upon legislative power, then the legislation conferring that power or discretion is effective in those terms. No question arises of severance or reading down the legislation”. The Court concluded that ss 132 and 200 were valid as they did not impermissibly burden the implied freedom; as the statute complied with the constitutional limitation without the need to read it down, any complaint about the exercise of the discretion does not raise a constitutional question: Wotton at [24]-[33].
  2. The applicant submitted that the statute in Wotton was more specific than that in Miller, and in this case, submitting that s 3E is susceptible of exercise in accordance with the implied freedom, but must be confined so that that any attempt to exercise the power inconsistent to that falls outside the proper construction of the section.
  3. This issue was addressed most recently in Comcare v Banerji, where the High Court considered ss 10(1), 13(11) and 15(1) of the Public Service Act 1999 (Cth). Before considering the Court’s reasoning it is appropriate to refer to the observations made by the plurality (Kiefel CJ, Bell, Keane and Nettle JJ) at [20] (citations omitted):
As has been emphasised by this Court repeatedly, most recently before the Tribunal's decision in this matter in Brown v Tasmania, the implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from ss 7, 24, 64 and 128 and related sections of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution. Accordingly, although the effect of a law on an individual's or a group's ability to participate in political communication is relevant to the assessment of the law's effect on the implied freedom, the question of whether the law imposes an unjustified burden on the implied freedom of political communication is a question of the law's effect on political communication as a whole. More specifically, even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole.
  1. Against that background, the plurality referred to the appellant’s argument, first, that the implied freedom was a mandatory consideration in the exercise of the discretion in s 15 for breach of s 13(11), and alternatively that the implied freedom operates as an outer limit on the penalties that can be imposed. The plurality rejected the first of those submissions, concluding at [44] that it is no part of the decision maker’s function in imposing penalty to take into account the implied freedom:
...No doubt in one sense the implied freedom imposes a limit on the sanctions that may be imposed for a breach of s 13(11) constituted of a failure to uphold the APS Values prescribed in s 10(1). If s 15(1) provided for sanctions that were not reasonably justified having regard to the implied freedom of political communication, it may be accepted that s 15(1) would be invalid and any penalty imposed under it would be unlawful, or at least unlawful to the extent that the penalty went further than was warranted by the implied freedom. But as has been explained, the prohibitions imposed by s 13(11)operating in conjunction with s 10(1) are proportionate to achieving the significant purpose of maintaining and protecting an apolitical public service skilled and efficient in serving the national interest, and the prescription of sanctions in s 15(1) that may be imposed according to law for a contravention of s 13(11) trespasses no further upon the implied freedom than is reasonably justified. Consequently, provided a decision maker imposing a penalty under s 15 acts reasonably, and so in accordance with the legal requirement that the penalty be proportionate to the nature and gravity of the contravention and the personal circumstances of the employee, there can be no risk of infringement of the implied freedom. If a decision maker imposes a manifestly excessive penalty, it will be unlawful because the decision maker has acted unreasonably, not because of the decision maker's failure to turn his or her mind to, or failure expressly to mention, the implied freedom.
  1. The alternate submission, which bears some analogy to the argument in this case, was also rejected by the plurality for similar reasons at [46] (citations omitted):
For similar reasons, the remainder of the respondent's further alternative contention should be rejected. As has been observed, due to the way in which the respondent conducted her case before the Tribunal, the respondent must be taken to have accepted that her conduct in broadcasting the "anonymous" tweets was conduct which failed to uphold the APS Values and the integrity and good reputation of the APS within the meaning of s 13(11), and that, but for the implied freedom, the sanction of dismissal was warranted. It is too late now for the respondent to be permitted to contend for the first time, as it were on ultimate appeal, that the penalty imposed on her did not accord to the nature and gravity of her contraventions of ss 10(1) and 13(11) or her personal circumstances. She must be taken to have accepted that they did and, consequently, that the penalty imposed was in accordance with those provisions and so within the limits set by the implied freedom.
  1. The respondents placed particular reliance on the observation of Gageler J at [96] as follows (citations omitted):
Wotton v Queensland establishes that the validity of a law which burdens freedom of political communication by empowering an exercise of an administrative discretion is to be determined by asking in the first instance whether the burden is justified across the range of potential outcomes of the exercise of that discretion. If the burden is justified across the range of potential outcomes, that is the end of the constitutional inquiry. The law is valid and the validity of any particular outcome of the exercise of discretion is to be gauged by reference solely to the statutory limits of the discretion. There is no occasion to consider whether the scope of the discretion might be read down in order to ensure that the law is within constitutional power. There is in consequence no occasion to consider whether a particular outcome might fall within the scope of the discretion as so read down, and there is accordingly no occasion to consider whether a particular outcome falls within the scope of the discretion having regard to the implied freedom.
  1. The respondents submitted that this applied in this case as there is no challenge to the validity of the provision. On the respondents’ submission, by virtue of the agreed validity, the Court must assume that the statutory limits on the discretion are themselves sufficient, without any “implied freedom overlay”, to keep any exercise of s 3E within constitutional limits. Therefore, the respondents contended that the constitutional constraint does not operate upon the exercise of the discretionary power, instead, it invalidates that executive act only by operating upon the legislation. As noted above, it submitted that s 3E is valid across the whole range of its potential operation. If that is so, it was submitted, that s 3E does not have an additional overlay of the implied freedom, as suggested here.
  2. While the respondents submitted that the applicant did not contend that s 3E was partially invalid or needed to be read down, as noted above at [251] the applicant sought to make that submission in its reply. This submission, however, was only made by reference to its challenge to the warrant in this case and not by a consideration of the terms of s 3E or its range of potential operations. The applicant submitted that s 3E would be invalid, in some of its operations, if it permitted the warrant issued in the terms of this case, which authorised a “broad-ranging search of the premises of a news organisation, with no conditions protecting the identity of confidential sources not known to, or reasonably suspected by the AFP, that would go well beyond the current limited circumstances in which a journalist can be compelled to reveal the identity of a source”.
  3. While the applicant submitted that its position is consistent with Comcare v Banerji, that case and Wottonmade clear that the question of whether a provision which confers a discretion impermissibly burdens the implied freedom is to be determined by a consideration of the terms of the provision across the range of its potential operations. That question was not confined to the exercise of the discretion in the particular circumstances of those cases (being the conduct of Ms Banerji or the parole conditions in Wotton). This is because the constitutional constraint operates upon the legislation conferring the discretion, and not upon the exercise of the discretion itself: Comcare v Banerji at [209] per Edelman J; Wotton at [22] per French CJ, Gummow, Hayne, Crennan and Bell JJ. By contrast, the applicant’s argument focussed entirely on the particular warrant issued in this case, the circumstances of its issue, and factual matters which are said to underpin the offences in the third condition. It focussed on the exercise of the discretion in the particular circumstances of this case only (which is based primarily on its interpretation of information in the public domain), to argue that the exercise of the discretion was beyond power. While the applicant ultimately submitted in reply that if this warrant was authorised by s 3E then s 3E must be read down, as noted above it made no attempt by reference to the terms of the provision to assess the range of its potential operations and as such its argument necessarily depended entirely on the circumstances of this case. Indeed, it disavowed any attempt to address the wider consequences of its argument, making it plain that it is this warrant only and the circumstances of its issue on which it relies. The applicant’s approach to the constitutional inquiry was not consistent with the approach in Comcare v Banerji.
  4. Moreover, the applicant’s submission is premised on the proposition that s 3E is akin to the provision considered in Miller. However, the passages relied on by the applicant (extracted at [254] above) are consistent with the approach to the constitutional question already canvassed in the paragraph above. As such, where there are wide general words conferring a discretion, it is the statutory provision conferring the executive and administrative powers which is construed as confining the exercise of the discretion within those constitutional limits: Miller at 614 per Brennan J; Comcare v Banerji at [209] per Edelman J. It follows that any exercise of the discretion outside those limits is outside of the statutory power: Miller at 614 per Brennan J. The approach taken in Wotton at [23] is consistent with that approach. The applicant’s reliance on Miller is dependent on its submission as to the similarity between the wide and general provision under consideration in that case with s 3E in this case. For the reasons outlined below, that characterisation of s 3E is incorrect. Apart from making the assertion as to the breadth of s 3E the applicant did not address the provision or provide any argument in support of this contention. It did not make any attempt to engage in the necessary construction of s 3E required as part of the analysis.
  5. Section 3E is a provision in Pt 1AA of the Crimes Act which addresses the powers of search, information gathering, arrest and other related powers. The provision which is recited above, confers the power on specified persons to issue warrants to search premises. However, that provision is to be read in light of several collateral provisions which provide a comprehensive regime for the applications of the search warrant and its powers. The Full Court in Caratti at [14]-[20] describe that legislative scheme. The issue of a warrant is based on the precondition that an issuing officer is satisfied on information provided on oath or affirmation of the substance of the two limbs required, namely, that: (1) there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, at the relevant premises; (2) anything with respect to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of the offence or offences to which the warrant relates. The expression “evidential material” used in various parts of s 3E, is defined in s 3C as meaning “a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form”: s 3C. The “thing relevant to an indictable offence” is also further defined: s 3. The provision provides, amongst other things, that additional information must be provided to the issuing officer in certain circumstances: s 3E(3) (where execution of warrant may necessitate use of firearms) and (4) (applications for successive warrants in relation to the same person or premises), and provides the information which must be contained in the warrant: e.g. s 3E(5)-(7). The provisions which follow provide the scope of the authority under the warrant, including the details of the warrant to be given to the occupier, and the availability of assistance and use of force in executing the warrant: e.g. ss 3F, 3G, 3J, 3K.
  6. The issue of whether s 3E is valid across the whole range of its operation is a matter of statutory construction. If that is so, as explained in Comcare v Banerji, the validity of any particular outcome of the exercise of discretion is to be gauged by reference solely to the statutory limits of the discretion. There is no occasion to consider whether the scope of the discretion ought to be read down to ensure the law is within constitutional power: Comcare v Banerji at [96].
  7. It is uncontroversial that the purpose underlying s 3E encompasses the effective detection, prevention and prosecution of criminal offences: for example Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 (Hart) at [65], [68] per French, Sackville and Nicholson JJ. Search warrant provisions the “gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law”: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (George v Rockett) at 110 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. As noted above, “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”: Hart at [68].
  8. Section 3E provides statutory conditions on which a warrant can be granted. In imposing those conditions the legislature has struck the balance between the competing interests of individual rights and the public interest in investigating crime: see for example: Corbett at [96] per Callinan and Crennan JJ; Hart at [68].
  9. Section 3E confers a power for a warrant to be issued to investigate criminal offences (validly created offences as accepted in this case), as explained above, provided that the issuing officer is satisfied that specified preconditions are met. The form and content of the warrant is prescribed in s 3E. The warrant itself must contain particular information as to its scope and execution. The legislature has enacted conditions which must be fulfilled before a search warrant can be lawfully issued and executed. Contrary to the applicant’s contention, s 3E is not akin to the provision in Miller. The terms of the provision cannot be properly characterised as wide words conferring a general discretion.
  10. The power in s 3E for a warrant to be issued is a validly conferred power across the whole range of its operations.
  11. Determining whether it is valid across its whole operation involves the application of the test in McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 (McCloy), set out in the following paragraph.
  12. When the validity of a provision is challenged on the basis that it impermissibly burdens the implied freedom, the test for resolving the issue from Lange, as refined in subsequent cases (Coleman v Power[2004] HCA 39; (2004) 220 CLR 1 at [196] per Gummow and Hayne JJ; at [92] – [93] per McHugh J, at [210] – [213] per Kirby J; McCloy at [2] per French CJ, Kiefel, Bell and Keane JJ; Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328 at [104] per Kiefel CJ, Bell and Keane JJ and [281]-[295] per Nettle J), is as follows:
(1) Does the law effectively burden the implied freedom in its terms, operation or effect?

(2) If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of constitutionally prescribed system of representative and responsible government?

(3) If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionality prescribed system of representative and responsible government?

See for example, Clubb v Edwards; Preston v Avery [2019] HCA 11; (2019) 93 ALJR 448 at [5] per Kiefel CJ, Bell and Keane JJ.

  1. That test is satisfied. While s 3E may indirectly burden the implied freedom (see [320] below), the purpose of the law is legitimate, and it is reasonably appropriate and adapted to advance that purpose, (as explained in [266]-[270] above).
  2. Indeed, except for the applicant’s submission that s 3E ought not to permit a warrant in these terms and in the factual circumstances of this case, the proposition that s 3E was valid across its whole operation and confers a legitimate power to investigate criminal offences was not really challenged.
  3. The respondents’ submission as to the threshold difficulty should be accepted. In any event, for the reasons given, s 3E is a validly conferred power across the whole range of its operations.
  4. The respondents submitted that even if I concluded that they were correct on the threshold issue it was appropriate, as I am hearing the matter at first instance, to nonetheless consider the applicant’s submission on this ground.
  5. Therefore, if I am incorrect about my conclusion reached above, I turn to consider the applicant’s submission.
  6. I note that given that the applicant based its argument on the particular circumstances and warrant in this case, the respondents, to illustrate their point that s 3E was valid across its whole operation, also addressed those matters.

Submissions

  1. As noted above, the applicant submitted that the implied freedom of political communication rendered the decision to issue the warrant ultra vires s 3E of the Crimes Act.
  2. For the purposes of the applicant’s argument the McCloy test referred to above, which is directed to a constitutional limitation on lawmaking powers, was adapted by the applicant to respond to an administrative law challenge.
  3. The applicant’s adaptation is to ask the following questions: first, identify the nature and extent of the burden on the implied freedom resulting from the exercise of discretion (here, the issue of the warrant); second, identify the purpose compatible with the maintenance of the constitutionally prescribed system of representative government that is served by the law that confers the discretion (here, s 3E(1) of the Crimes Act); and third, ask whether, if the relevant law were to authorise burdens on the implied freedom of the kind that resulted from the relevant exercise of discretion, would that be disproportionate to what can reasonably be justified in pursuit of the statutory purpose. On the applicant’s submission, if the answer to the third question was “yes”, then the decision to issue the warrant was ultra vires, because on its proper construction, s 3E of the Crimes Act cannot authorise decisions that impose an unjustifiable burden on the implied freedom.
  4. The respondents did not take issue with those steps, but rather contended that the correct question was whether, if the statute were to authorise burdens on political communication of the nature and extent of that resulting from the exercise of power in question, that would be disproportionate to what can reasonably be justified in pursuit of the statutory purpose.
  5. Against that background, the submissions as to burden, purpose and proportionality were as follows.
  6. As to burden, the applicant submitted the issue of the warrant imposed an effective burden on the implied freedom: it purported to authorise a search of the premises of the ABC, which is a news organisation and “civic institution of real importance with statutory force and a venerable history”; and journalists employed by the ABC rely on information provided to them by sources who have been promised that their identity will be kept confidential. The applicant relied on what it characterised as the type of media organisation the ABC was, one assumes in contradistinction to other media organisations.
  7. It submitted that when a warrant is executed in those circumstances relating to evidential material obtained from confidential sources, there is an inherent risk that, in the course of executing the warrant, the identity of confidential sources will be revealed. The applicant contended that risk is significantly increased where, as in this case: (a) the material described in the second condition of the warrant included articles stated to have been based on information provided by confidential sources; (b) the offences described in the third condition of the warrant related to the disclosure of information by a person who the respondents accept can be inferred to have understood to be a confidential source and (c) the warrant purported to authorise a very broad search, with no conditions or limitations that might effectively operate to protect the identity of other confidential sources.
  8. The applicant made submissions about the information electors obtain as a result of journalists’ work, including work that results from information provided by confidential sources, and that can be relevant to the decisions that electors make at elections and referenda. It submitted that if sources of significant information were to face harm (e.g. to reputation, livelihood, property or person) they, and other actual or potential sources, may be deterred from providing information in future. Referring to the passage from Cojuangco recited above at [182], the applicant contended that the decision to issue the warrant in the present case “sent a chilling message to actual and potential sources that decreased the likelihood that information capable of informing the decisions that electors make at elections and referenda would be provided to journalists in future”. Although it is indirect, it was submitted that it is a substantial burden. It was on this basis the applicant addressed the details of the Afghan Files Stories to identify why these stories were “not trivial” and why they were of “vital importance to the whole of the Australian community”. It submitted that journalists cannot access this type of information except by making a promise of confidentiality to a source. It contended that if other actual or potential sources are deterred from providing information in future, electors may never be made aware of that information. Referring to the evidence of Professor Ricketson, the applicant submitted that the decision to issue the warrant had the likely consequence of deterring whistleblowers and persons with information of vital importance to decisions which electors must make at federal elections and at referenda, such that they are less likely to come forward and it placed a substantial burden on the ability of journalists and media organisations to do their jobs.
  9. The respondents accepted that the issuing of a warrant in those circumstances “seeking or relating to evidential material obtained from confidential sources”, creates a burden on the implied freedom, but that “burden is small and indirect at the level of theory, and unreal in the circumstances of this case”. It submitted that the applicant’s argument presumes that “promises” of confidentiality guarantee the protection of those sources’ anonymity and are understood by sources to do so. However, the respondents submitted that this argument is belied by s 126K(2) of the Evidence Act, as the prospect of disclosure compelled by a legal process reveals that any such promise made by a journalist must be hedged with qualifications. It further submitted that any “chilling effect” that might theoretically result from the issuing of warrants over media outlets under s 3E is highly unlikely to result from decisions akin to that impugned here. The respondents submitted that following the publication of media articles stating that Mr McBride had publicly admitted to leaking documents to ABC journalists, the AFP sought and was issued a warrant seeking evidential material in respect of suspected offences by Mr McBride and an ABC journalist. The respondents submitted that the suggestion that this sort of fact pattern would deter other existing and prospective “confidential sources” is unpersuasive.
  10. In reply, the applicant noted that in relation to s 126K, the circumstances in which a journalist can be compelled to reveal the identity of a source in legal proceedings are limited. It submitted that there is a “presumption against compellability” which is only displaceable by a court, on the application of a party, after consideration of “the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts”: s 126K(2)(b). The applicant contended that this was express recognition that “the disclosure of the identity of a confidential source is likely to have a chilling effect on the willingness of other sources to come forward”.
  11. As to purpose, the applicant accepted that s 3E of the Crimes Act has a purpose that is compatible with the maintenance of the constitutionally prescribed system of representative government and summarised that purpose in accordance with the well-established principles cited above at [268], emphasising that the important law enforcement objective under pinning s 3E is subject to limits that seek to “balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property”: George v Rockett at 110.
  12. While accepting that the applicant had correctly identified the purpose underpinning s 3E, the respondents submitted that in the context of this case, the applicant’s analysis was incomplete. The respondents submitted the warrant sought to facilitate the investigation of a specific set of offences, and the purposes of those laws must be considered in assessing whether the warrant transgressed the statutory limits on s 3E arising from the implied freedom. The offences described in the third condition were serious indictable offences, punishable by lengthy imprisonment terms and directed towards preventing patently undesirable harms, including as to Australia’s defences.
  13. As to proportionality, the applicant submitted that the issue of a warrant authorising a search of the premises of a news organisation or journalist will impose a disproportionate burden where, as in this case: (a) the material described in the second condition of the warrant included publications stated to have been based on information provided by confidential sources; (b) the offences described in the third condition of the warrant related to the disclosure of information by a person who the respondents accept can be inferred to have been understood to be a confidential source; (c) the terms of the warrant were not narrowly confined, but instead purported to authorise a very broad search which, if executed, involved an inherent risk that the identity of other confidential sources would be revealed; and (d) the warrant was not subject to any express condition that would operate to protect the identity of those confidential sources.
  14. The applicant submitted that when determining whether the burden that a law imposes is proportionate, or justified, the High Court has adopted an approach of asking whether the law is “suitable”, “necessary”, and “adequate in its balance”: McCloy at [2] per French CJ, Kiefel, Bell and Keane JJ; Clubb at [5]-[6] and [70]-[74] per Kiefel CJ, Bell and Keane JJ and [266]-[275] per Nettle J.
  15. The applicant submitted that to be “suitable”, a law must have a rational connection to the purpose identified, and in this case, an exercise of a discretion under a law must similarly have such a connection, and the applicant accepted that the exercise of the discretion to issue the warrant had a rational connection to the purpose identified in s 3E.
  16. The applicant submitted that a law will not be “necessary” if there are obvious and compelling, reasonably practicable alternative means of achieving the same purpose that have a less restrictive effect on the implied freedom. It submitted that the decision to issue the search warrant in this case was not “necessary” as Registrar Kane could have issued the warrant: (1) in terms that precisely identified the area of the search, rather than in the vague, uncertain and conclusionary terms used in the warrant, which purported to authorise a very broad search; or (2) subject to a condition that the warrant did not authorise the seizure of material that identified, or had the capacity to identify, confidential sources other than those specifically identified in the warrant, whose identity was already known to the AFP. The applicant referred to s 126K(1) of the Evidence Act 2008 (Vic) which expressly extends that provision to search warrants to demonstrate that the purpose can be achieved subject to appropriate measures to protect the identity of confidential sources. The applicant submitted that the above analysis is consistent with established authority, and s 3E(1) does not authorise an issuing officer to issue a warrant that is wider than is necessary to achieve the purpose of the issue of the warrant and that the warrant issued by Registrar Kane did not satisfy that requirement; citing R v Tillett; ex parte Newton (1969) 14 FLR 101 and Caratti (No 2).
  17. The applicant submitted that whether a law is “adequate in its balance” requires a value judgment, consistent with the limits of the judicial function, describing the balance between the purpose served by the law and the extent of the burden it imposes on the freedom: McCloy at [2] per French CJ, Kiefel, Bell and Keane JJ. Whether an exercise of discretion under a law is “adequate in its balance” should be assessed by reference to whether, if the relevant law were to authorise burdens of the kind that arise from that particular exercise of discretion, it would be disproportionate to, or go beyond, what could reasonably be justified in pursuit of the relevant purpose: Brown at [290] per Nettle J. It submitted that if burdens of that kind were authorised by the warrant, there may be information of public importance that will never be made known to electors, because sources are unwilling to come forward. It submitted that if s 3E(1) of the Crimes Act were construed as authorising those kinds of burdens on the implied freedom, it would go well beyond what could reasonably be justified in pursuit of the purpose identified.
  18. The respondents submitted that the legitimate, and compelling, purposes of s 3E and the provisions on which the warrant was based amply justify any burden on the implied freedom that would result from exercises of the discretion to issue warrants akin to the warrant. The respondents contended that the alternative means proffered by the applicant of effectuating the statutory purpose are not valid alternatives in the McCloy sense, and both alternatives would create a wide immunity from search and seizure which would radically undermine those law enforcement objectives.
  19. The respondents submitted that it cannot be concluded that the benefits sought to be achieved by the issue of warrants of the kind issued in this case are “manifestly outweighed” by (see Comcare v Banerji at [38]), or “grossly disproportionate to” (see Brown at [290]), their adverse effect on the implied freedom.

Preliminary observations

  1. Before considering the applicant’s submission it is appropriate to highlight the following points. As noted at [276] – [279] above, I have found that the applicant’s face a threshold difficulty to their challenge, and therefore this consideration only arises on the basis that I am incorrect in that conclusion. Despite this threshold difficulty, the respondents’ submitted that as the first instance judge hearing the evidence and submissions, it is appropriate to adopt that approach (and therefore consider the submission as posited by the applicant), particularly given in doing so it is necessary to make factual findings.
  2. It is important to recall that while the applicant’s submission has appeared to change over time, this ground is an administrative law challenge to the decision of the issuing officer to issue the particular warrant in this case. While in response to the respondents’ argument as to the “threshold difficulty” the applicant has characterised its argument as one addressing the validity of s 3E in light of the implied freedom, as outlined above, the applicant’s challenge focuses on the exercise of the discretion in the particular facts of this case only. Indeed, the applicant, in its written submission, simply adapted the McCloy test to the administrative law challenge so that it applies to Registrar Kane’s decision to issue the warrant. It addressed the McCloy test not by reference to s 3E, but by reference to this warrant. The respondents did not accept the applicant’s submissions, framing the question, if it arose, differently (see [283]). Nonetheless, the respondents addressed the applicant’s adapted test, although, unlike the applicant, the submissions addressed s 3E in its general application, in addition to the response to the factual assertions.
  3. The applicant has not explained why the test directed to a legislative constraint can be adapted in the manner it suggests. The observations by the plurality in Comcare v Banerji at [45] that its conclusion “does not mean that the implied freedom may not be a relevant consideration in the exercise of different discretions under other legislation” citing Wotton at [31]-[32], do not suggest such an approach. The applicant has not pointed to any example where the test has been adapted in the manner it suggests. The test posited by the applicant is not consistent with authority, including the authorities it seeks to rely on in this ground (see [247], [252] – [265] above).
  4. Moreover, while relying on the implied freedom in this and the grounds alleging the decisions to seek and issue the warrant are legally unreasonable, the applicant did not submit that it is a mandatory relevant consideration in s 3E by reference to its terms in the context of the detailed regime in Part 1AA in which it appears.
  5. Although the applicant at times did refer to this ground as a construction argument, that was not how the argument was actually advanced. As noted previously, the applicant’s challenge is to the exercise of the discretion in this case, which is primarily based on the terms of the warrant in the context of its interpretation of the facts in the public domain (namely the content of its publications of the Afghan Files Stories). The applicant did not direct its submission to how the statute affected the freedom, rather the submission was directed to how this warrant did so: cf: Brown at [90] per Kiefel CJ, Bell and Keane JJ.
  6. In that context, the applicant made submissions inter alia about the nature of the ABC and what it said to be the particular position it holds, its role and guidelines as to its conduct (including that where an ABC journalist promises confidentiality the stories and wrong doing which are disclosed as a result would not otherwise be exposed to public scrutiny); the content of the Afghan Files Stories and the importance of the publications; that it had not been suggested the stories were inaccurate or that they had any of the deleterious consequences referred to by Lieutenant General Bilton; that the stories did not in fact contain information that could diminish the effectiveness of the ADF (in the sense referred to in the ROEs and the evidence of Lieutenant General Bilton); and that the publication of the stories was the correct thing to do. The submission extended to events that occurred after the execution of the warrant, including the reaction to them.
  7. While it was submitted that these matters raised by the applicant related to all grounds of the application, in practical terms the submission on those matters focussed on ground 1 (and grounds 6 and 7 which relate to legal unreasonableness).
  8. The applicant explained that the purpose of the submission about the content of the stories was to establish that they were not trivial, which was said to be relevant to the questions to be addressed in ground 1. However, the submissions went much further than that, to consider matters plainly not within the remit of this application. This submission, which focusses attention on the value or merit of the publications, has a tendency to distract from the real issues.
  9. It cannot be, as appears to have been suggested by the applicant, that a court can conclude that a warrant that otherwise satisfies the conditions in s 3E is ultra vires (or legally unreasonably), such as to prevent the use of an investigatory method, on the basis of a subjective assessment of the value of the content of the publications (necessarily limited and selected material). Leaving aside how one would assess that issue, or how that is assessed when there is no publication, the approach is to import the judiciary into the executive process, not on the basis of whether the statutory conditions of s 3E are satisfied but whether it is in the public interest for the matter to be investigated, at least by this method.
  10. The applicant’s submission is premised on a particular characterisation of its conduct, and that of Mr McBride, which is not for this Court to determine on this application, and nor could it on the necessarily limited material before me given the grounds of this application (principally being information that is in the public domain).
  11. Moreover, there are difficulties with the assertions underlying the applicant’s submission, as illustrated by the following.
  12. First, that there are guidelines in place (leaving aside that guidelines are not necessarily followed or that errors of judgment can occur), cannot elevate the position of the applicant in relation to these grounds, or its ability to protect its sources. The code of conduct in terms of anonymous sources is discretionary, and on the material, Mr McBride provided the information to three sources, the Sydney Morning Herald, Mr Masters (a journalist) and the ABC, yet it was only the ABC that chose to publish the story at that time. It follows, as it was submitted by the respondents, that no doubt, applying the same ethical rules, others came to a different conclusion.
  13. Second, insofar as it was suggested that but for the ABC the conduct would not have been exposed, as is apparent from the publications, at the time the information was provided and at the time the applicant chose to publish it an Inspector-General’s Inquiry was being conducted by Major General Brereton of the Defence Force Reserve, on leave from the Court of Appeal of New South Wales. The Inquiry has all the powers of a Royal Commission. While the applicant’s reporting stated it was being “carried out in secret”, one assumes that is for the purpose of obtaining evidence, reaching conclusions from the evidence, and then publishing a report. As the respondents submitted, it cannot be said that these matters were being swept under the carpet, rather they were being actively investigated by a well-resourced inquiry. No findings have yet been made, the inquiry being ongoing.
  14. Third, while the applicant accepted Lieutenant General Bilton’s evidence that disclosure of defence information has the capacity to cause harm in the manner he described, the applicant’s only response to the evidence is that the respondents had not identified an inaccuracy in the publications nor demonstrated how the ABC had published any material which was secret or would harm relations. That submission misses the point. In the context of this application, it is not for the respondents to establish such matters. Nor would such evidence have been relevant to a judicial review application of the issue of a warrant pursuant to s 3E.
  15. I note also that in this context the respondents highlighted one story of the Afghan Files Stories entitled “Who is the Enemy? Australia’s secretive rules of engagement”, during which there is the subheading “The ROE: a tightly-held secret”, making it clear that the applicant had seen these documents and that the article’s author was well aware that the documents the subject of the publication, were secret documents. Lieutenant General Bilton gave unchallenged evidence, about ROEs and as to why they are secretive, and are classified at no less than SECRET (see above at [67]-[68]). This included, the purpose, use and formulation of the rules and the consequences of disclosure of current and past ROEs. While the applicant submitted that it accepted that such consequences can occur, an assertion from the bar table by the applicant that nothing inappropriate has been disclosed based on its assessment of the publications, is unpersuasive, but more importantly, it fails to address the real issue on this application.

Consideration

  1. It is convenient to consider at the outset the hypothetical factual situation identified by the respondents to illustrate the consequences of the applicant’s submission. The respondents postulated that an ADF officer provides several journalists with secret plans of all of Australia’s defence facilities and combat strategies for upcoming ADF operations in a conflict zone; and asks the journalists not to disclose his identity. Such conduct by the ADF officer would amount to a breach of (at least) s 131.1(1) of the Criminal Code, s 70(1) of the Crimes Act and s 73A(1) of the Defence Act, offences which the applicant accepts are valid. On the applicant’s argument, s 3E would prohibit the AFP from obtaining a search warrant over a journalist’s premises to investigate the suspected offences, or to determine whether a possible suspect, as opposed to some other person, was in fact the source of the leaked documents. That also includes a scenario where a source who has identified himself (perhaps in the media) and therefore is no longer “confidential”, had disclosed material that may overlap with material provided by a “confidential source” because, the applicant contends, such warrant may “risk” revealing the identity of that latter person. That, as the respondents submitted, has the effect of creating an immunity from the investigation of serious indictable offences.
  2. The applicant took issue with the example and submitted that it misstated the effect of its arguments. The applicant submitted that they did not contend that s 3E must be construed so as to create an immunity of the kind hypothesised by the respondents. Instead, the applicant submitted that it accepted that where the identity of a source is known to, or reasonably suspected by, the AFP, s 3E may authorise the issue of an appropriately confined warrant directed to obtaining evidential material relevant to that source, provided that steps are taken to protect the identity of other confidential sources.
  3. Nonetheless, it is apparent from the applicant’s submission that its effect is that a s 3E search warrant issued over the premises of news organisations, (relating to evidential material in respect to suspected offences involving the provision of information by confidential sources) without protection of the identification of the confidential sources on the face of the warrant, would be beyond power. The applicant attempting to limit its submission to unknown sources does not assist it. If a s 3E warrant could only be applied for in the hypothetical scenario postulated above, in circumstances where the identity of the source is known, it would significantly impede the use of this investigative tool for certain offences.
  4. While the applicant disavowed any attempt to look at the broader effect of its submission, contending that it did not want to make a broader submission than the facts of this case, that approach cannot prevent an assessment of the logical consequence of its submission. As the respondents’ example illustrates, the applicant’s submission is capable of having broad consequences. The applicant’s response to the respondents’ submission brings to the fore the question of what, on the current state of the law, is the legal basis for the requirement of the conditions it contends for.
  5. As explained above, s 126K does not apply to search warrants, and while the applicant placed some reliance on Cojuangco which it submitted affords the privilege protection, it was not suggested that Cojuangco could provide a basis on which it could claim source protection in this case. The applicant repeatedly stated it was not arguing for a position of immunity from investigation of offences for journalists, or for the proposition that there is a guarantee of anonymity for a confidential source. However, as a matter of logic, those propositions do underlie its arguments and are the practical outcome of some of it submission. As outlined at [218] Professor Ricketson’s evidence on which the applicant seeks to rely, is to the effect that the MEAA Code creates an absolute protection where an agreement as to confidentiality has been made, including non-compliance by a journalist with a court order to reveal a source’s identity. Underlying Professor Ricketson’s evidence as to “chilling effect” is the premise that whenever there is a risk of disclosure of a sources’ identity such an effect would arise. That risk would exist in relation to the search warrant unless the source protection condition contended for by the applicant, was absolute.
  6. Against that background I turn to the issue of the burden, purpose and proportionality.
  7. As to the burden imposed, it may be accepted that the issuing of warrants over the premises of news organisations in the circumstances, “seeking or relating to evidential material obtained from confidential sources” can indirectly impose a burden on the implied freedom. So much was accepted by the respondents. As the High Court in Cojuangco observed, information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to its sources. That, may be accepted, and is uncontroversial: Cojuangco at 354 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ.
  8. A distinction has been drawn between a law which has a direct and substantial effect on freedom of communication and one which has only an indirect or incidental effect: Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [95] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ citing Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at [40] per Gleeson CJ. Further, “a law with respect to the prohibition or restriction of [political] communications ... will be much more difficult to justify ... than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications”: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 169 per Deane and Toohey JJ.
  9. The applicant’s submission that the imposition of the burden on the implied freedom by the execution of this warrant would be substantial or significant is problematic. I am not persuaded that is the proper characterisation of the imposition on the burden.
  10. Leaving aside the types of issues raised in Branzburg and Zurcher as to the difficulties of assessing the extent of any impact, by the applicant focusing on this warrant and the circumstances in which it was issued, a number of practical difficulties with its submission are highlighted.
  11. The applicant’s argument in support of that proposition is, in part, based on the premise that the warrant is in very broad terms. For the reasons given in relation to grounds 2, 3 and 4, I do not accept that characterisation. The argument is also based on the proposition that the warrant did not include protection for the identity of sources. For the reasons below (in relation to the issue of proportionality), that does not advance the applicant’s submission.
  12. However, the principal basis of the submission was that the warrant substantially imposed a burden on the freedom because of the nature of the Afghan Files Stories including that the information the subject of its publication would not otherwise have become known to the public. However, for the reasons given above (at [311]), there are flaws with that submission. Other considerations may also affect the assessment of the degree of impact on the burden. For example, knowledge that an investigation into the conduct the subject of the Afghan Files Stories was already being undertaken (see [311] above) and knowledge that a journalist cannot guarantee anonymity.
  13. Moreover, Professor Ricketson’s opinion appears to be based on the potential consequences to an informer of being prosecuted for offences based on the disclosure of information, which are accepted are valid offences. That risk exists with the provision of such information. It can readily be inferred that risk is known by an informer. It is the potential to be prosecuted for the conduct which has the chilling effect on the disclosure of such information.
  14. It must also be borne in mind in this context, that the warrant was only sought and issued after Mr McBride publicly admitted leaking documents to ABC journalists, and that it is directed to evidential material in relation to five offences involving Mr McBride and Mr Oakes. The warrant was issued at a time after Mr McBride had been charged with offences in relation to the provision of information. That latter fact may be what has an effect on other potential informers.
  15. Even if Professor Ricketson’s evidence was admissible for the purposes of the argument, it does not assist the applicant. As the respondents correctly submitted his evidence is premised on the basis that source protection is absolute, when it is not. His evidence and the opinion he expresses proceeds on a false premise. Even based on s 126K (if it were to apply), an informant cannot be promised or guaranteed anonymity (unless it covered an intention to potentially breach a court order).
  16. Finally, another factor which may impact on this assessment is the effect on potential informers if it were known, as explained above at [10], that the AFP had offered to the applicant a procedure whereby the AFP would provide the applicant with the warrant to enable it to conduct the search and provide material which satisfied the terms of the warrant. That procedure, if adopted, would necessarily have reduced the risk contended for by the applicant.
  17. As to purpose, it is unnecessary to repeat what is described above at [266] – [275]. It is important to bear in mind that this application arises at a stage where the issue is not whether there should be charges, or whether evidence should be admitted in any criminal proceedings, but whether a particular investigatory method can be utilised to gather evidence in respect to criminal offences. Section 3E is suitable for its purpose.
  18. I note that the respondents submitted that given the applicant’s submissions on this ground focus on the warrant issued in this case, there are certain facts that ought to be considered. This was said to include that the warrant was directed to specific, serious offences, directed at preventing the disclosure of certain information which, on the unchallenged evidence of Lieutenant General Bilton, has the capacity to harm Australian defences. The s 73A offences carry life imprisonment. None of the offences are said to be invalid. Indeed, as noted above, the applicant abandoned its argument that the implied freedom in any way rendered s 73A invalid. It does not suggest the conduct in this case, in relation to s 73A, would impermissibly burden the implied freedom.
  19. The statutory conditions on which a warrant can be granted were satisfied in this case. Indeed, as noted above, apart from the submission based on the meaning of s 73A of the Defence Act there was no real challenge to the sufficiency of the information the subject of the warrant to satisfy the necessary conditions.
  20. If the warrant is to be considered, it was issued in this case to investigate those valid offences. The purpose of the warrant in this case was entirely legitimate. That said, the types of factors referred to by the respondents above are more appropriately relevant to the applicant’s submission as to proportionality, referred to below.
  21. The purpose of s 3E is plainly compatible with the maintenance of the prescribed system of representative government. Indeed, the applicant accepted that proposition.
  22. As to proportionality, the crux of the applicant’s submission is that s 3E does not authorise an issuing officer to issue a warrant wider than necessary to achieve its purpose, and there are two conditions which could have been placed on the face of the warrant, which would have confined its operation, which were not. Absent those two conditions in the warrant, the applicant contends this warrant is ultra vires.
  23. These conditions are submitted to apply even if the warrant otherwise satisfies s 3E, and otherwise meets the requirements as to specificity and particularity required of a search warrant. As noted above, while the applicant was at pains to submit that it was only addressing the warrant in this case, and that each will be case specific, the submission has broader ramifications. It is based on the proposition that where a search warrant is sought at least in relation to a particular type of news organisation (see [285] above) where there is a risk that a confidential source might be exposed during the execution of the warrant, the precision with which the warrant must be drafted is more specific or narrower than is otherwise required of a valid warrant, being the need for a condition which protects the identification of any confidential source. The content of any such condition was not identified by the applicant. While the applicant’s written submissions put the condition on the basis that the protection would need to be in relation to a source not otherwise known to the AFP, it was apparent during oral submissions that it would make a claim for source protection in relation to all confidential sources regardless of whether, as here, Mr McBride has publically identified himself. Indeed, at times it appeared to be suggested the condition needed to have the effect of preventing the AFP from seeing the name of any confidential source during the execution of a warrant (as opposed to seizing documents which might contain the name of a source).
  24. Further, the warrant is directed to evidential material in relation to offences identified as involving Mr McBride and Mr Oakes, and the provision of information from one to the other. In that context, while the 7.30 Episode (which was published before the Afghan Files Stories), appears to involve an interview with a person(s) other than Mr McBride, the existence and degree of any risk that the execution of the warrant might expose another informant is speculative. Even leaving aside the issue of how the name of a confidential source might be recorded and if their status would be recognised by anyone executing the search, it is speculative that any such material satisfying the conditions of this warrant might contain the name of another confidential source. The submission made by the applicant that confidential sources unrelated to the Afghan Files Stories were at risk of being revealed by the execution of the warrant is even more speculative.
  25. Irrespective, as discussed above, s 126K does not apply to search warrants. While the applicant submitted that it did not need to establish that s 126K applied to succeed on ground 1 as its submission is based on the construction of s 3E, in light of the implied freedom, it did not address the legal basis for such a condition. It is in this context that the applicant’s submission appears to treat the implied freedom as a personal right, or comes perilously close to doing so.
  26. In any event, a problem with the two conditions contended for by the applicant, is that they would not achieve the ends which they are purportedly designed to meet.
  27. The first proposed condition is that the warrant could have identified in more precise terms the area of search rather than “in the vague, uncertain and conclusory terms” that appear in the warrant. For the reasons above in relation to grounds 2 and 3, I reject that characterisation of the warrant. Properly read as a whole the warrant sufficiently identifies the area of search. Given the purpose of the warrant is to set the boundaries for the area to search, if that is done, there is no proper basis to require any further degree of specificity on the basis suggested. Accepting that the applicant submitted that the phrase “vague, uncertain and conclusory terms” has a different meaning in this ground to that aspect in its argument in grounds 2 to 4, nonetheless, the warrant properly read, is not vague, uncertain or conclusory.
  28. Moreover, the submission appears to be premised on the basis that the evidential material referred to in the warrant could be more narrowly described. As explained in more detail in relation to the next ground, that is a false premise. The submission ignores that the warrant is directed to material as to which there are reasonable grounds for suspecting that it will afford evidence of the commission of the offences specified in the third condition, which is plainly not confined to any documents provided.
  29. Leaving that aside, given the warrant is directed to material which will afford evidence as to the commission of the offences in the third condition, even if one were able to list or identify with more particularity evidential material sought, that would not address the risk of disclosure of confidential sources. Identifying the evidential material says nothing about whether there is in that material any risk of identifying any confidential source.
  30. The second is that the warrant needed to contain a condition which prevented the seizure of material that had the capacity to identify confidential sources (other than that already known to the AFP). For the reasons explained above, there is no legal basis for such a condition. Even if s 126K did apply to search warrants, it would not provide absolute immunity. It follows that even if the warrant were to contain such a condition, the risk of disclosure of the identity of a confidential source would still exist. Unless journalists or informers in the circumstances under consideration are immune from investigation (or prosecution) or unless source protection is absolute, the risk referred to by Professor Ricketson which the applicant relies on, would still arise. The “chilling effect” relied upon by the applicant would still exist, unless the applicants are contending for a position where no search warrant could be issued in relation to media premises (of the type and in the circumstances of this case) where there is a risk of such information being held. Such a position amounts to the immunity which the applicant contends it was not advancing, however it is the logical consequence of its submission.
  31. Contrary to the applicant’s submission, the purpose of s 3E justifies any burden on the implied freedom that would result from an exercise of the discretion to issue a warrant akin to this warrant.
  32. The offences are valid, and it is not suggested they would not apply (for example, on the basis the implied freedom rendered them invalid). The use of s 3E to investigate valid offences is proportionate. That is so irrespective of any risk in relation to other sources. There is no reasonably practical alternative available for investigating these serious breaches of the offence provisions. The nature of the offences under investigation, in particular the disclosure of ROEs, are very serious. The maximum penalty reflects the degree of criminality and seriousness with which such conduct is viewed.
  33. For the reasons above, even if the applicant’s approach was adopted, this ground is not established.
  34. The issue of the warrant in this case was not ultra vires.

Grounds 6 and 7, OA [23], [24]: legally unreasonable

Submissions

  1. The applicant contended that Registrar Kane’s decision to issue, and the Commissioner and Agent Brumby’s decision to seek, the warrant were legally unreasonable. It submitted that legal unreasonableness can follow from a jurisdictional error in the decision-making process or alternatively can be “outcome focused”, without the need to identify a particular jurisdictional error, relying on Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh) at [44]. It submitted that the latter form of legal unreasonableness applied in this case.
  2. The applicant submitted that the question for the Court is whether, having regard to all the circumstances, the exercise of the discretion had an “evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [76], and whether it “[fell] within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law”: Li at [105].
  3. The argument now advanced appears narrower than that which is particularised in the OA. The applicant addressed three matters which it submitted demonstrated that conclusion. Some of the submissions in support of this ground largely repeat the assertions underlying the submissions in respect to other grounds (in particular grounds 2 to 4).
  4. First, it submitted that the terms of the warrant were not narrowly confined, but purported to authorise a very broad search. The applicant repeated the complaint that the conditions of the warrant did not meaningfully limited the scope of the search, and that the use of the term “military information”, was uncertain and ambiguous, and significantly broader than the kinds of information to which s 73A of the Defence Act applies. The suspected offences did not identify the particular “information”, “property”, or “fact[s] or document[s]” that were the subject of the suspected offences with any particularity. The second and fifth suspected offences failed to identify, respectively, from whom the relevant “information” was obtained, and to whom the relevant “fact or document” was disclosed. This later submission was that raised orally in relation to ground 2 (see [89]-[126] above). Second, the breadth of the search that the warrant purported to authorise was unnecessary and inexplicable, given what must have been known to the AFP at the time of the issue of the warrant. It submitted that by the time the warrant was sought and issued, the AFP knew with particularity the documents that were the subject of the suspected offences described in the third condition of the warrant. It submitted by that time Mr McBride had been charged with the offences (as described above); he had been committed to stand trial in respect of those offences; he had made public statements about those charges including to the effect that he had handed the documents to the media; and that the AFP had requested the consent of Mr Oakes and Mr Clark to a forensic procedure, being the copying of finger and palm prints, stating that it wanted the prints in order to compare them to forensic evidence drawn from materials already in the AFP’s possession. Third, the applicant submitted that the breadth of the warrant was inexplicable in light of the risk that such a broad and unconfined search would pose to the protection of the identity of confidential sources. That risk was obvious, in circumstances where: (a) the warrant purported to authorise a search of the premises of a news organisation; (b) the material described in the second condition of the warrant included articles stated to have been based on information provided by confidential sources; (c) the offences described in the third condition of the warrant related to the disclosure of information by a person who the respondents can be inferred to have understood to be a confidential source; (d) the warrant was not subject to any express condition that would operate to protect the identity of other confidential sources; and (e) the execution of the warrant involved the inherent likelihood that the identity of confidential sources would be disclosed, rendering for practical purposes nugatory the source protection provisions in the Evidence Act. It submitted that the warrant imposed a burden on the implied freedom of political communication. It further submitted that the importance of the protection of the identity of confidential sources is reflected in: (a) the existence of s 126K(1) of the Evidence Act; (b) the policies of the ABC and other news organisations; (c) judgments of the courts; and (d) the contribution that publication of investigative journalism makes to bringing public malfeasance, abuse of power, neglect and corruption to the attention of electors.
  5. The applicant submitted that when the decisions to seek and to issue the search warrant are considered in their full factual context, those decisions lack an evident and intelligible justification. There was no need to seek or to issue a warrant in such broad and unconfined terms, given the information available to the AFP, and the risk that the warrant posed to the protection of the identity of confidential sources.
  6. The respondents submitted that the authority to issue a search warrant depends on the issuing officer’s satisfaction that there are reasonable grounds for suspecting that evidential material relating to offences will be found at the premises and that this is a “low threshold requirement” citing Williams v Keelty at [211]. It does not require an allegation that the offences have, in fact, been committed by named persons, or proof of those offences. The warrant makes clear on its face that it was issued based on such satisfaction of reasonably held suspicion. It is for the applicant to establish that Registrar Kane could not have been satisfied that there were reasonable grounds for suspecting that there would be evidential material at the ABC’s premises which satisfied the three conditions of the warrant, which is a “difficult and exacting task” citing Wong v Commissioner, Australian Federal Police [2014] FCA 443 at [4]. The decision to seek the warrant was an exercise of an even broader discretion as to the use of police investigative powers and that there was no evidence or suggestion that the respondents did not exercise that discretion following due and proper consideration and the formation of a genuine view that it would be appropriate to seek the warrant.
  7. The respondents addressed the three matters advanced by the applicant as the matters that, taken collectively, purportedly compel the conclusion that seeking and issuing the warrant was legally unreasonable.
  8. As to the first, the respondents relied on the same submissions as made in relation to grounds 2 to 4 (which have been recited above).
  9. As to the second, the respondents submitted that the applicant’s submission about the stage of the investigation proceeds on the misapprehension that the warrant was solely concerned with the investigation into and prosecution of Mr McBride, although even if it was so directed its scope would be justified. They submitted that the public statements attributed to Mr McBride do not alter the prosecutor’s obligation in the McBride Proceedings to prove, with admissible evidence, every element of the relevant offences to the criminal standard. Mr McBride has pleaded not guilty. His reported public statements, which are general in nature, have not always accorded with the position he has taken in court. They submitted that neither when the warrant was sought, issued, nor even now, could any certain view be taken of the issues that will be controversial in the McBride Proceedings. As noted above, the fact that the applicant understands that issues at trial have now been confined is irrelevant to this ground. The respondents submitted that the matters relied on by the applicant do not support its assertion that the AFP knew with particularity what documents the ABC had received, particularly given Mr McBride’s trial has not occurred; press reports suggest that Mr McBride has claimed that he disclosed documents to at least three media outlets; and the AFP sought to carry out a forensic procedure aimed at determining which documents Mr Oakes/Mr Clark may have had contact; it cannot be concluded that the AFP already knew what documents the ABC had received or that it had secured all necessary evidence of the communication and receipt.
  10. As to the third, the respondents submitted that the risk identified, that documents seized may reveal the identity of confidential sources, does not render the seeking or issuing of a search warrant legally unreasonable. They submitted that there is nothing in the terms of s 3E of the Crimes Act to suggest that the risk of identifying confidential sources is a matter to which those seeking and issuing warrants must give weight, let alone treat as decisive. Search warrants, by their very nature, involve an intrusion by the state into the privacy of those to whom a search warrant is directed. The procedure by which the warrant was issued and executed took pains to preserve the rights of the applicant. The warrant was accompanied by a statement of the rights of the occupier of premises, and by instructions as to how claims of legal professional privilege could be made. The respondents submitted that the applicant did not have any legal right to protect the identity of confidential sources. Section 126K of the Evidence Act, which creates a discretion exercisable by a court rather than an entitlement to confidentiality, designedly does not extend to search warrants.

Consideration

  1. Recently, the Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] per Reeves, O’Callaghan and Thawley JJ, summarised the position as to whether a decision is legally unreasonable as follows:
The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [54]- [60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J).
  1. Examples then provided by the Full Court included that a decision might be legally unreasonable if it: (1) is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW) at [10] per Kiefel CJ; [82] per Nettle and Gordon JJ; Li at [68] per Hayne, Kiefel and Bell JJ; (2) “lacks an evident and intelligible justification”: Li at [76] per Hayne, Kiefel and Bell JJ; SZVFW at [10] per Kiefel CJ; [82] per Nettle and Gordon JJ; or (3) is plainly unjust, arbitrary, capricious or lacking in common sense: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] per Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [35] per Flick, Perry and Charlesworth JJ.
  2. As the High Court has observed, the test of legal unreasonableness is necessarily stringent: SZVFW at [11] per Kiefel CJ; and see [51]-[60] per Gageler J; [78]-[87] per Nettle and Gordon JJ; [131]–[135] per Edelman J.
  3. To discern irrationality or illogicality more must be shown than that the decision is one upon which reasonable minds may differ: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [131], [135] per Crennan and Bell JJ, or that the Court would have exercised the discretion in a different way: SZVFW at [86] per Nettle and Gordon JJ.
  4. Where there are no reasons given for the exercise of power, or for a decision, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law: Singh at [45] per Allsop CJ, Robertson and Mortimer JJ.
  5. It is important to focus on the power being exercised; the application for and the issue of the warrant. The consideration of whether that was unreasonable necessarily involves a consideration of the preconditions to the exercise of that power. The police commissioner has a broad discretion as to the manner in which he chooses to fulfil his duty, which relevantly is to enforce the law: Hinchcliffe v Commissioner of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308 at [33]- [35]. The decision to seek the warrant was an exercise of that broad discretion as to the use of police investigative powers. The applicant did not take issue with the proposition that there was no basis to suggest that the respondents did not exercise that discretion following proper consideration and formation of a genuine view it was appropriate to seek the warrant.
  6. The preconditions to the issue of a s 3E warrant and the requirements as to its contents are discussed above at [75] – [81], and “the decision manifested in the search warrant issued must be read beneficially, and not with an eye keenly attuned to the perception of error”: Caratti at [34].
  7. As explained above, the authority to issue a search warrant depends on the issuing officer’s satisfaction by information on oath that there are reasonable grounds for suspecting that evidential material which satisfies all three conditions of the warrant will be found at the premises. The face of the warrant states that the issuing officer is so satisfied. As the respondents correctly submitted, it is for the applicant to establish that Registrar Kane could not have reached this state of satisfaction, which is a “difficult and exacting task”: Wong v Commissioner, Australian Federal Police [2014] FCA 443 at [4]. This ground must also be considered in the context where the offences identified in the third condition are (accepted by both parties to be) valid offences.
  8. I note also, in light of the applicant’s submissions and my findings above, that these grounds are to be considered in a context where s 126K does not apply to search warrants, that the offence provisions in the warrant are valid and persons who communicate or receive information capable of satisfying those offence provisions do not have immunity from investigation for the conduct.
  9. A number of the matters relied on by the applicant to support these grounds form the basis of its arguments in relation to the preceding grounds.
  10. As to the terms of the warrant which formed the basis of the first consideration, for the reasons given in relation to grounds 2-4, the terms of the warrant satisfy the requirements of a valid warrant. The warrant is not “broad and unconfined” as contended by the applicant. The warrant does not require the specificity or particularly that the applicant contended, for the reasons outlined above. It is not necessary for the offences specified in a search warrant to be particularised in the narrowest possible terms supported by the information before the issuing officer: Caratti (No 2) at [172].
  11. As to the second submission about the stage of the investigation, a number of the matters relied on by the applicant do not have the significance that it contended. Rather, they are common incidents of criminal investigations and prosecutions. For example, that Mr McBride has been charged and committed for trial does not preclude further investigations, including by the execution of a search warrant to obtain further or better evidence. Further, Mr McBride’s statements, are not necessarily admissible evidence, “let alone admissions that address all the elements of the offences that he is alleged to have committed”: ABC v Kane at [40]. As to the request for forensic material, even if the documents upon which finger prints or palm prints have been found have already been obtained were copies of the documents alleged to have been leaked, which is not at all clear, again that does not address all of the elements of the offences under investigation: ABC v Kane at [39]-[41], [45].
  12. Further, as I observed in relation to the previous ground, the applicant’s contention that the AFP would have known the documents sought with some particularity ignores that the warrant is directed at material as to which there are reasonable grounds for suspecting that it will afford evidence of the commission of the offences specified in the third condition. Such material is plainly not confined to any documents that were provided by Mr McBride. It is not difficult to imagine the potential breadth of material which might fall within that category. Once that is recognised, the submission has no weight.
  13. As to the third submission, the applicant did not explain how the implied freedom and importance of the protection of confidential sources is relevant to the question of whether the decision to apply for and issue a warrant under s 3E of the Crimes Act is unreasonable. The applicant has not suggested or demonstrated that this is a mandatory consideration under s 3E. For the same reasons as given above, it cannot be that the application or issue of a warrant is unreasonable in the absence of a condition protecting the identity of confidential sources. Again, for the reasons above, there is no right to such a protection in the warrant.
  14. The applicant has not established that the decisions to apply for and issue the warrant were legally unreasonable.

Grounds 9, OA [24B]: source protection

  1. As noted earlier, this claim only relates to four documents. However, for the reasons given above, s 126K which is the basis of this claim for protection does not apply to search warrants. There is no other basis for the claims made. None other is suggested by the applicant. Consequently I have not inspected the four documents.
  2. That said, I do note that the applicant submitted that it would make a claim for source protection even if the source was Mr McBride even though he had identified himself as the source. However, on a plain reading of s 126K, even if it were to apply, it would not apply to Mr McBride as his identity is already know: Ashby v Commonwealth of Australia (No 2) [2012] FCA 766; (2012) 203 FCR 440 at [32] per Rares J.

Discretion

  1. As I have found that the applicant has not established that the warrant is invalid, it is unnecessary to address the consequences of a finding otherwise.
  2. However, as I have considered the evidence, in the event I am wrong and had I decided otherwise, on the material before me, I would not have ordered the material seized be returned to the applicant.
  3. Whether material is to be returned is a matter of discretion, with the relevant principles set out by Hill J in Puglisi v Australian Fisheries Management Authority [1997] FCA 846; (1997) 148 ALR 393 (Puglisi) at 403-405, endorsed by the Full Court in Caratti at [158].
  4. In Puglisi, Hill J declined to order that the unlawfully seized items be returned in circumstances which included that, following the purported execution of a third set of warrants, criminal proceedings were commenced against Mr Puglisi. The material seized had been obtained by a wholly invalid search warrant. An attempt by the authorities to remedy that situation was entirely unsuccessful. His Honour concluded that use of the material was a matter best left to the criminal courts in the exercise of its discretion as to the admissibility of illegally obtained evidence. He noted that at least some of the seized items could be “expected to be used” in the prosecution. However, there is no indication that Hill J considered the seized items or concluded that they had any evidentiary relevance.
  5. Wigney J in Caratti (No 2) at [467]-[480], after considering the authorities, discussed the relevant considerations in the exercise of the discretion. He made the following observations. He stated that the starting point is the prima facie entitlement of a person not to be unlawfully deprived of his or her goods, although against that consideration is the significant public interest in the administration of, and non-interference with, the investigation and prosecution of criminal offences and the administration of justice. The question is whether, in all of the circumstances, the desirability of allowing the police to retain the illegally seized items outweighs the undesirability of permitting the police to retain the items having regard to the way in which they were obtained.
  6. In that context, the considerations are not limited to whether there are criminal proceedings on foot or whether there is evidence that the seized items will afford evidence of those offences. His Honour observed that all the facts and circumstances surrounding the unlawful seizure must be considered, which may include whether the unlawful seizure was deliberate, reckless or contumelious, or if it was the product of mere technical deficiency or less serious conduct; the nature of the items seized; whether there is a risk that, if returned, the items might be destroyed, altered or secreted; the nature and seriousness of the alleged offences; whether criminal proceedings are on foot or are imminent, or whether the items need to be reviewed to determine if criminal proceedings can be commenced; and the possible importance and probative value, if any, of the seized material. This, of course, is not an exhaustive list.
  7. Applying the principles to this case, there are a number of considerations which weigh heavily in favor of the material not being returned. In identifying these considerations I am mindful of the importance of a warrant complying with the requirements imposed by law, given its intrusive nature.
  8. First, the AFP attempted to liaise with the applicant as to the execution of the warrant they intended to seek. This included the AFP requesting cooperation to the extent that it would be for the ABC to provide the documents that met the search conditions of the warrant, once it had been issued. That would have resulted in the AFP not physically conducting the search and therefore would limit its exposure to matters of concern to the applicant. That approach would have reduced if not alleviated the applicant’s concerns. The applicant declined to adopt that approach on the basis that the offences related to their journalists. While the applicant was entitled to take that approach, it meant that the warrant once obtained would be executed by the AFP.
  9. Second, the manner in which the warrant was executed by the AFP was such that steps were taken to ensure the intrusion was limited. The applicant’s legal representatives were present throughout the execution of the warrant and were involved in discussions with the AFP during that process. The warrant was carried out in one room of the applicant’s premises with an employee of the applicant operating the computer (as opposed to the AFP). No other search of the premises was conducted.
  10. Third, the applicant wished to preserve their right to challenge the validity of the search and as such all the documents seized were transferred to two USB sticks which were sealed with the AFP giving an undertaking not to disclose or act upon any of the seized material. The applicant is in the position it submitted it ought to have been in, although it occurred by agreement as opposed to being on the face of the warrant. There is no practical distinction. I appreciate that the applicant submitted there is a distinction because the respondents contend that source protection in s 126K does not apply, as opposed to acknowledging its existence. However that is not a valid point of distinction. In any event, the respondents are correct in their analysis.
  11. It follows the applicant is actually in the position which it says is necessary to prevent the warrant being ultra vires, with certain documents it claims having the capacity to identify informants who were promised confidentiality by an ABC journalist being the subject of a source protection claim made by the applicant.
  12. Finally, given the communication between the parties, and events leading up to the execution of the warrant, there could have been no doubt that the focus of the warrant was in relation to offences related to the Afghan Files Stories. Moreover, as noted previously, there has been no challenge to the execution of the warrant.

Conclusion

  1. The applicant has not established any of the grounds of the application. As such, the application is dismissed with costs.
I certify that the preceding three hundred and eighty-seven (387) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.


Associate:



Dated: 17 February 2020















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