Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code (Cth), were the substance of offences identified with sufficient precision?
Zhang v Commissioner of Police [2021] HCA 16 (12 May 2021)
Intro:-
In a proceeding in the original jurisdiction of this Court under s 75(v) of the Constitution and s 30(a) of the Judiciary Act 1903 (Cth), Mr Zhang seeks writs of certiorari quashing each search warrant and each order under s 3LA of the Crimes Act together with a mandatory injunction requiring the destruction or return of the seized and copied material. He also seeks declarations of invalidity of s 92.3(1) and (2) of the Criminal Code.
By special case in the proceeding, Mr Zhang and the Commissioner of Police have agreed in stating questions of law for the opinion of the Full Court.
Facts:-
Mr John Shi Sheng Zhang is an Australian citizen born in the People's Republic of China ("the PRC"). Between October 2018 and September 2020, Mr Zhang was employed under the Members of Parliament Staff Act 2013 (NSW) at the New South Wales Parliament in the office of the Honourable Shaoquett Moselmane MLC.
Mr Zhang has for some time been under investigation by the Australian Federal Police ("the AFP") for offences against s 92.3(1) and (2) of the Criminal Code (Cth) suspected to have been committed by him between July 2019 and June 2020. In the context of that investigation, officers of the AFP obtained search warrants issued under s 3E of the Crimes Act 1914 (Cth). Each warrant purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of the Criminal Code.
Executing those warrants, officers of the AFP seized material they believed relevant to offences against s 92.3(1) and (2) of the Criminal Code as well as material they believed relevant to offences against other provisions of the Criminal Code. Officers examined and copied data from mobile phones, computers, and other electronic devices at search premises. They also removed mobile phones, computers, and other electronic devices from search premises and took steps to extract data from the removed devices including by using passcodes which Mr Zhang was compelled to provide to them pursuant to orders made under s 3LA of the Crimes Act. They retain the copied data and some of the seized material. The investigation is ongoing.
Mr Zhang has no standing to challenge the validity of s 92.3(1) and (2) of the Criminal Code by reason merely of the ongoing AFP investigation or of the potential for him to be charged with offences against those provisions as a result of that investigation. His standing to challenge the validity of those provisions arises only as an aspect of his standing to challenge the validity of the warrants and orders under authority of which occurred derogation from his common law rights.
Issues:-
Mr Zhang's challenge to the validity of each warrant is on two grounds. The first is that each warrant fails to comply with s 3E(5)(a) of the Crimes Act as expounded in Smethurst v Commissioner of the Australian Federal Police[2] in that it does not identify the substance of the offences against s 92.3(1) and (2) of the Criminal Code to which it relates with sufficient precision.
The second is that each warrant fails to authorise search and seizure of "evidential material" as defined in s 3C(1) of the Crimes Act at all because any offence against s 92.3(1) and (2) of the Criminal Code to which the warrant might relate does not exist by reason of the invalidity of s 92.3(1) and (2). His challenge to each order under s 3LA of the Crimes Act is entirely derivative upon his challenge to the corresponding search warrant.
Analysis:-
Mr Zhang's argument that each warrant fails to comply with s 3E(5)(a) of the Crimes Act in that it insufficiently identifies the substance of the offences against s 92.3(1) is confined to an argument that each warrant is "unclear" as to the identity of the foreign principal. The argument is untenable. Each warrant in terms identifies the foreign principal as the Government of the PRC, which is a "foreign government principal" within the definition in s 90.3(a).
Mr Zhang's argument that the permutation of s 92.3(1) infringes the implied freedom of political communication was ultimately explained in the course of its oral presentation to depend on a wide reading of the word "covert" in s 92.3(1)(d)(i): equating "covert" with "private" or "not overt". What became apparent was that he did not contend that on all available constructions of the word would the permutation offend the implied freedom of political communication. That is to say, he did not assert that the word could not be read down in accordance with the principle of construction referred to in Residual Assco Group Ltd v Spalvins[3] to ensure validity if the wide reading for which he contended did lead to invalidity.
Implicit in Mr Zhang's failure to assert that the word "covert" in s 92.3(1)(d)(i) would be incapable of being read down to ensure validity was an acknowledgement that those parts of s 92.3(1) which support the offences against s 92.3(1) to which each warrant relates (being s 92.3(1)(a) read with the first part of s 92.3(1)(b)(i), s 92.3(1)(c)(i) and (ii) and the first part of s 92.3(1)(d)(i)) have some valid operation. That being so, his argument that those offences do not exist can be rejected without need of determining the constitutional argument he presents and without need of determining the attendant question of the proper construction of the word.
And although the search warrants might be read as having been drafted on the understanding that conduct might be "covert" by reason only that it "involved communications over a private Social Media Chat Group", any necessary reading down of the word "covert", such as requiring an element of nefarious concealment or secrecy, would not deprive the warrants of sufficient content or clarity to indicate the areas of the search.
Decision:-
The questions reserved by the parties in the special case are appropriately answered as follows:
(1) Are the First Search Warrant, the Second Search Warrant, and the Third Search Warrant invalid, in whole or in part, on the ground that:
(a) they misstate the substance of s 92.3(2) of the Criminal Code (Cth)?
(b) they fail to state the offences to which they relate with sufficient precision?
(c) s 92.3(1) of the Criminal Code (Cth) is invalid on the ground that it impermissibly burdens the implied freedom of political communication?
(d) s 92.3(2) of the Criminal Code (Cth) is invalid on the ground that it impermissibly burdens the implied freedom of political communication?
Answer The First Search Warrant, the Second Search Warrant and the Third Search Warrant are not wholly invalid on any of the identified grounds. The question is otherwise unnecessary to answer.
(2) In light of the answer to Question 1, is the First s 3LA Order and/or the Second s 3LA Order invalid?
Answer No.
(3) Is s 92.3(1) of the Criminal Code (Cth) invalid on the ground that it impermissibly burdens the implied freedom of political communication?
Answer Unnecessary to answer.
(4) Is s 92.3(2) of the Criminal Code (Cth) invalid on the ground that it impermissibly burdens the implied freedom of political communication?
Answer Unnecessary to answer.
(5) If the answer to any or all of the questions (1)–(4) is "yes", what relief, if any, should issue?
Answer None.
(6) Who should pay the costs of the proceeding?
Answer The plaintiff.
