Australia: Is that search warrant valid? Give me back my documents and computer files

A successful challenge to the validity of search warrants is a reminder that it is worth checking the fine print of these documents and having a plan in place in the event you are confronted with a search warrant at your business.

Seven West Media – a broadcaster and publisher – and a range of other entities and individuals successfully took the uncommon step of challenging search warrants and other notices issued by two State Magistrates at the request of the Australian Federal Police¹.

Those warrants and notices were issued following a formal application by agents of the Australian Federal Police (AFP) to a Magistrate, under the Proceeds of Crime Act 2002 (Cth) (POC Act). The applications were supported by affidavits from the AFP agents, which provided the magistrates the necessary factual background for the warrant to be issued.

As is common, the AFP also provided a draft order and warrant for the Magistrate to execute. The form of a search warrant generally requires the magistrate to state that they are satisfied of certain factual matters (being the thresholds set out in the statue under which the warrant is issued), and for those reasons, have found it fit to issue the warrant.

However, the affidavit and warrants contained errors. Three days after the warrants were executed, the AFP conceded that the orders and warrants had been created using a template from another criminal investigation. The documents incorrectly stated that certain persons were "reasonably suspected of having committed an offence" and that people were identified as "suspects". In fact, none of the persons to whom the warrants and notices were issued were ever suspected of committing any offence. Additionally, these were not necessarily relevant factors for the Magistrate's consideration.

The AFP sought to characterise these as "mere" errors but the Federal Court had none of that and said "the characterisation of the clerical error as "mere" is more difficult to accept if by "mere" it is meant to suggest the error was trivial or insignificant. The statements are not immaterial typographical errors or errors of detail. The statements are of the most serious kind and the second respondent[ a Magistrate], by his signature, affirmed he was satisfied they were true. The second respondent did so in the context of a warrant which identifies in the second condition numerous individuals as "suspects...that are the subject of the investigation".

The Magistrates' decisions to issue the warrants and orders were open to judicial review under both the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Court found that in light of the erroneous material placed before the Magistrates, which they, by the execution of the warrants in their terms indicated that had taken into consideration, and the failure of the AFP agents to properly explain the legislative framework of the POC Act, the Magistrates' decisions were affected by legal error.

Seven West also argued that the Magistrates' decisions to issue the warrants should be quashed because the AFP unintentionally misled the Magistrates about the scope of materials Seven West had already provided in compliance with the order – giving an impression that incomplete compliance had occurred. However, because there was no intentional fraud or misrepresentation, that did not provide a basis to quash the warrants.

So - the effect of the decision is that the search warrants and ancillary orders are invalid and taken not to have existed. The materials seized will have to be returned. No doubt costs will be awarded in Seven West's favour.

CONCLUSION

Search warrants and similar orders are tools used by a range of regulators and investigatory agencies including ASIC, the ACCC, the Australian Crime Commission and the Australian Federal Police. State authorities also have similar powers.

This decision is an important reminder that the issue of a search warrant is an administrative decision amenable to review by a court. However, more basically:

• warrants and orders are intrusive, and for that reason, the courts require strict compliance with their enabling provisions. It is always worth a look at the fine print to see if a ground for challenge exists
• when search warrants are executed, businesses are given no notice and little time to respond. Businesses should consider having a plan in place in the event of the execution of a search warrant which deals with matters such as having a single contact person, having a lawyer present and having measures in place to ensure that claims are properly made over privileged material, and that only materials covered by the warrant are seized.

Footnote

¹In the Federal Court of Australia on 26 March 2014: Seven West Media Limited v Commissioner, Australian Federal Police [2014] FCA 2014

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