(a) Thresholds, including evidentiary thresholds, relating to the obtaining of
production orders and search warrants, and in particular whether these
reflect the rules;
and
(b) Procedures preparatory to seeking production orders and search warrants,
including taking into account the conduct of the recipient of such orders.
These terms of reference relate to the rules and procedures in place when the AFP seek
production orders and search warrants under Sections 202 and 225, respectively, of the
PoCA.
The recent judgment of Jagot J in Seven West Media’s action against the AFP illustrates
the problems which arise from the involvement of the AFP in making applications for such
warrants and orders in the course of gathering information in relation to a civil matter,
being the possible payment of literary proceeds.
Such applications should be undertaken with great care, given that the warrants and
section 246 orders “authorise actions which would otherwise constitute trespass and,
insofar as searches of the person are concerned, an assault. They represent serious
incursions into private and property rights”2
It cannot be assumed that a Magistrate would be aware of the way in which the PoCA
operates and especially not the fact that there is no criminal offence involved or alleged
when dealing with the payment of literary proceeds. It is especially necessary in those
circumstances that any application for search warrants or section 246 orders involves the
full and frank disclosure of all material information to the Magistrate, to the same standard
required on any ex parte application for civil relief.
Seven West Media submits that the procedures currently in place in so far as literary
proceeds are concerned require amendment so that:
• Literary proceeds are clearly distinguished from other proceeds of crime in the PoCA; and
• the AFP is no longer involved in applications under sections 202 and 225 of the PoCA; and
• any applications are made as a matter of last resort, after other avenues of information gathering have been exhausted
These amendments are necessary in order to ensure that:
• Commonwealth police resources are appropriately managed and used;
• An appropriate level of priority is given to the obtaining of production orders and search warrants for literary proceeds matters relative to the importance and likelihood of ever obtaining any literary proceeds order;
• The objects of the PoCA are best achieved and the public interest properly served;
• As far as possible, that parties unrelated to any person who has committed a
relevant crime, are treated with appropriate respect, especially taking into account
the civil nature of any literary proceeds proceeding which may result following the
issuing of a production order or search warrants and the fact that media
organisations likely are to be involved which gives rise to issues of concerning
freedom of speech as well as confidential sourced materials.
In particular, Seven West Media submits that:
1. The threshold test of obtaining production orders and search warrants should be
raised to require that more than a “reasonable suspicion” regarding the existence of
documents evidencing literary proceeds be required before such orders or warrants
are issued.
The threshold tests applied in Anton Piller orders, or “search orders” under the
Uniform Civil Procedure Rules 2005 (NSW) provide a useful guide of the tests that
could be adopted in civil matters being investigated by the AFP. These orders have
the object of preserving evidence necessary to an applicant’s claim which is at
imminent risk of destruction, tampering or removal from the jurisdiction.
[Attachment 8] provides more detail of the criteria applied by the courts in such
matters.
2. The inconvenience to third parties, especially media organisations, should
specifically be taken into account before issuing such orders and warrants.
3. Consideration be given to whether alternate means of collecting evidentiary material
from media organisations and similar third parties. For example, Seven West Media
submits that the application for production orders or search warrants under the
PoCA should follow procedures equivalent to those for an application for preliminary
discovery under Division 7.3 of the Federal Court Rules.
That process generally requires the applicant for such an order first to demonstrate
that they have made reasonable inquiries to obtain documents by other means, such
as writing to those parties who might have access to such documents and
requesting that such documents be made available. If such a procedure had been
implemented in the recent case of Seven West Media, Seven West Media would
have been able to provide in a timely fashion information to the AFP which
confirmed that:
• A payment had been made to Mercedes Corby for her agreement to provide
an interview with New Idea magazine in January 2014, but that no such
interview was provided by and no payment given to Schapelle Corby in
relation to that article.
• Sunday Night had entered into an agreement with Mercedes Corby under
which Mercedes Corby would provide the Seven Network’s Sunday Night
program with an exclusive television interview but that no fee was payable
either to Mercedes Corby or Schapelle Corby under that agreement.
• Rumours in the media, in particular by Seven’s commercial competitors, that
an agreement had been reached for payment to Schapelle Corby of $2-3
million, were entirely false.
In the absence of any basis for disbelieving the information provided by Seven, it is
likely in those circumstances that the AFP would not have proceeded to have issued
the production orders or the search warrants and would have saved the considerable
resources expended on the investigation which has now been abandoned. Similarly,
the time and cost to Seven West Media, in relation to a matter which does not involve
the commission of a criminal offence or the allegation of such a criminal offence,
including the time of its own staff and its lawyers, would also have been saved.
(c) Procedures for executing search warrants
On the assumption that the present system allowing for search warrants to be issued at
some stage in the process of an investigation into literary proceeds matters be continued,
Seven West Media would recommend changes to the practice of execution of those
search warrants, in so far as they are executed on media companies and agents of media
companies, including legal representatives.
We believe that changes are required to this procedure in order to reflect the fact that
neither the media organisations nor their agents are suspected in any way of being
involved in the commission of a crime and that, at best, information may be obtained on
the execution of a warrant which may lead eventually to the payment of money, in a civil
proceeding, to the Commonwealth. Given the notional benefit which might be involved
eventually as a result of the execution of a search warrant, compared to the degree of
inconvenience to the media organisation and its agents and the potential for confidential
information, including journalists’ sources and legally privileged material to be disclosed,
observed or seized, under the current search warrant procedure, Seven West Media
submits that such restrictions are clearly warranted. We submit in particular that the
following restrictions be introduced to the PoCA in relation to the execution of search
warrants on media organisations and their agents:
• Search warrants must be carefully drafted so that they relate only to specific
categories of documents, within a specific time period, which the available
evidence suggests with a degree of certainty may exist;
• An opportunity be given to the occupier of the premises being searched to perform
the relevant searches, especially of material stored on computers, and provide
those to the AFP, together, if necessary with an undertaking that no documents
will be destroyed;
• Privilege claims may be made over legally privileged material with the onus shifting
to the AFP to disprove any privilege claims.
• Protection should also be given to material over which a claim of journalist
privilege is made and that no such documents are made available for inspection by
the AFP. This is discussed further below.
(d) Safeguards relating to the curtailment of freedom of speech, particularly in
relation to literary proceeds matters;
Seven West Media submits that due consideration be given to the effect on freedom of
speech which is likely to result from the use of current procedures under the PoCA in
relation to literary proceeds matters.
There exists presently some degree of legislative acknowledgment given to the public
interest in the freedom of speech in section 154 of the PoCA which sets out the factors
which a court must take into account in deciding whether to make a literary proceeds
order for the payment of money to the Commonwealth. Those factors include whether
supplying the "product" (eg interview or story) was in the public interest and the social,
cultural or educational value of such a product.
However, there is currently no similar consideration required to be given before
applications for production orders or search warrants are made in literary proceeds
matters under the PoCA. This is likely to result in a chilling effect upon freedom of speech
as media organisations are less likely to enter into agreements to interview persons
convicted of crimes and report on those stories. Important stories exposing such matters
as the realities of criminal life, Australia's law enforcement system and the redemption and
rehabilitation of criminals may go untold in the circumstances.
To counteract that risk, Seven West Media recommends that public interest factors, such
as those contained in section 154 of the PoCA, be taken into account before a court will
issue a production order or a search warrant under s202 or s225 of the PoCA.
(e) Safeguards for ensuring the protection of confidential information, including
journalists’ sources, obtained under search warrants, and particularly where
that information does not relate to the search warrant.
There is currently nothing in the PoCA which provides for the protection of confidential
information, including journalists’ sources, from disclosure in circumstances where a
production order or a search warrant has been issued, including to a media organisation.
In the case of a production order, the issue is dealt with specifically in section 206 (1) of
the PoCA which provides that a person is not excused from producing a document or
making a document available under a production order on the grounds that to do so would
breach an obligation of the person not to disclose the existence or contents of the
document. Whilst there is no equivalent provision in relation to provision of a search
warrant, there is no explicit protection for such documents from seizure.
Seven West Media believes there is a clear imperative for building into the PoCA some
protection of journalists’ sources which is consistent with shield laws which have already
been enacted in the Commonwealth Evidence Act, as well as similar provisions which
now exist at a state level in New South Wales, Victoria, Western Australian and the ACT
to protect journalists’ confidential sources. This could be dealt with in the relatively simple
way of subjecting the obligation to produce documents in response to a production order
or the powers of the AFP to seize documents pursuant to a search warrant to the
provisions section 126 (h) of the Evidence Act 1995 (Cth). The onus would then shift,
appropriately, to the AFP to demonstrate that the public interest in the disclosure of
evidence of the identity of an informant outweighs any likely adverse effect on the
disclosure of the informant.
Such a change would give appropriate priority to the public interest in the communication
of facts and opinions to the public by the news media. Such a procedure would also allow
a media organisation to make a claim over any documents and not produce those
documents and would prevent any inadvertent or accidental disclosure of journalists’
sources in circumstances where material produced by a media organisation comes into
the possession of the AFP or other third parties.
Consideration should also be given to the establishment of a protocol that documents the
manner in which documents obtained through a search warrant are
• stored;
• accessed; and
• how such access is recorded
where a party claims that documents are of a confidential or sensitive nature and are
unrelated to the subject matter of the search.
(f) Powers available to the AFP to intercept telecommunications in
circumstances where the matter under investigation does not involve
criminal conduct
Seven West Media is not aware of any order being made for the interception of its
telecommunications as part of the AFP’s recent investigation.
It is however crucial in our submission that no powers be made available to the AFP to
intercept the communications of any media organisation or related third party in the
absence of any allegation of criminal conduct.
(g) The priorities of the Serious and Organised Crime Division, and the
circumstances under which they should appropriately be deployed in
relation to non-criminal matters
In August 2009, the Parliamentary Joint Committee on the Australian Crime Commission
recommended that the Australian Government examine an integrated model of asset
recovery in which investigation and prosecution of criminal proceeds matters would be
undertaken. With the introduction of the Crimes Legislation Amendment Bill (No. 2) 2011,
the PoCA was amended to enable the commissioner of the AFP to exercise powers and
functions relating to confiscation litigation which had until then been exercised only by the
DPP, and for the AFP to delegate those powers. At the same time as those amendments
were made, the Government established the Criminal Assets Confiscation Task Force to
take responsibility for litigating all proceeds of crime matters relevant to the investigation
undertaken by the task force.
The Criminal Assets Confiscation Task Force forms part of the AFP’s Serious and
Organised Crime portfolio. A description of the AFP’s serious and organised crime
portfolio is found on the AFP’s website at http://www.afp.gov.au/jobs/graduateprogram/areas-you-can-work-in/crime-program.aspx as follows:
- “Serious and Organised Crime conducts investigations into complex
organised criminal activity including the importation and manufacture of
illicit substances, money laundering and economic crime, fraud, identity
crime and corruption. In order to target the threat posed to Australia’s
national security by organised crime, serious and organised crime
investigations focus on mitigating the key vulnerabilities that are exploited
by criminal enterprises, including supply chain logistics on the waterfront,
in the airstream and across transnational boarders.
Investigations are also focused on increased industry engagement within
the banking and financial sector. The AFP has developed key task forces
and a systematic approach to working with industry in order to combat
organised crime activity within this area. Serious and organised crime also
incorporates the AFP’s international network which cooperates with other
Australian government agencies domestically and abroad to ensure a
whole of government approach to fighting crime offshore at its source.”
public resources to direct the attention of the AFP’s Serious and Organised Crime portfolio
to the investigation of literary proceeds matters where no crime is suspected or alleged to
be involved in the payment or receipt of such literary proceeds on no threat to Australia’s
security interests is involved.
Seven West Media submits that it is not in the public interest for the resources of a
portfolio with functions as outlined above to be involved in undertaking search functions in
relation to literary proceeds orders, especially when dealing with media organisations.
It is an entirely disproportionate use of resources, coupled with an undesirable and
intimidating effect on corporate and other citizens such as media organisations, to be
involving the Serious and Organised Crime portfolio in this way.
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