Senate Standing Committee on Legal and Constitutional Affairs
Inquiry into the current investigative processes and powers of the Australian
Federal Police in relation to non-criminal matters
Submission by Seven West Media
28 March 2014
EXECUTIVE SUMMARY
• The Australian Federal Police executed search warrants on the premises of Seven
West Media and its lawyers Addisons on 18 March 2014.
• This has resulted in significant damage to the reputation of Seven West Media, its
parent company Seven Group Holdings, their legal representatives and various
individuals employed by these companies.
• These warrants have subsequently been quashed in the Federal Court and the
AFP has abandoned its investigation into Seven West Media.
• Her Honour Justice Jagot found that the AFP materially misled the Magistrates
who were asked to issue the warrants.
• The warrants were carried out in an extremely aggressive manner, using over 30
armed police officers from the Serious and Organised Crime division. The raids
caused distress to Seven West Media employees and appear in many aspects to
have been carried out not in accordance with the AFP Code of Conduct.
• The matter being investigated by the AFP was whether an exclusive media deal
had been entered into between Seven West Media and Schapelle Corby. No such
deal has ever existed.
• This is not a criminal matter. Even if there had been an agreement to pay
Schapelle Corby for her story, there was never, and could not be, any allegation or
suspicion that a criminal offence had been committed by Seven West Media or any
other person in relation to such an agreement.
• The AFP investigation was based solely on media speculation. No requests were
ever made of Seven by the AFP as to whether such a deal existed.
• The AFP did not consider use of any alternative means to address its concerns
that money might leave this jurisdiction, such as seeking undertakings from Seven
West Media and its related entities.
• Serious questions arise in relation to the proper use of public resources in this
matter.
• The powers of the AFP in relation to non-criminal matters are inconsistent with due
process and should be consistent with comparable search powers available to civil
litigants.
• There is a lack of adequate protections and protocols around journalists sources
and confidential material in relation to material obtained through a search warrant.
This should be rectified.
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Senate Standing Committee on Legal and Constitutional Affairs
Inquiry into the current investigative processes and powers of the Australian
Federal Police in relation to non-criminal matters
Introduction
Seven West Media is the leading, listed national multi-platform media business based in
Australia. We comprise the Seven Network, Australia’s highest rating television network;
Pacific Magazines, the country’s second largest magazine group by readership; Yahoo!7,
one of the nation’s most successful internet platforms, as well as Western Australia’s
leading newspaper, the West Australian and associated WA regional newspapers and
radio stations.
Seven West Media welcomes this opportunity to participate in the Senate Inquiry into the
current investigative processes and powers of the Australian Federal Police in relation to
non-criminal matters (Inquiry).
We would very much hope that the Inquiry will result in recommendations to improve
processes and procedures around the exercise of civil powers by the Australian Federal
Police.
1. Background to Search Warrants executed in relation to Seven West Media in
March 2014
In the lead-up to the release of Schapelle Corby from a Balinese prison in early February
2014, there was significant speculation that Ms Corby would sell her story to an Australian
media outlet on an exclusive basis. All Australian media organisations are believed to
have been engaged in negotiations with members of the Corby family to obtain Ms
Corby’s first interview.
Following Ms Corby’s release this speculation centred on whether such an arrangement
had been made between Seven West Media and Ms Corby for her to provide an exclusive
interview to Seven’s Sunday Night program. In subsequent Federal Court proceedings, it
was acknowledged that the Australian Federal Police commenced an investigation into
Seven West Media based on a number of news reports and commentary which suggested
that a deal had been struck between Seven and Schapelle Corby rumoured to be worth
$2-3 million for an exclusive interview.
It is important to note that the investigation by the Australian Federal Police was not in
relation to any criminal conduct by Seven or any other person. It is not a criminal offence
for a convicted criminal to give an interview to the media. It is not a criminal offence for a
media organisation to publish such an interview. And importantly, it is not a criminal
offence to pay for such an interview or to receive payment in relation to it.
Even if there had been an agreement to pay Schapelle Corby for her story, there was
never, and could not be, any allegation or suspicion that a criminal offence had been
committed by Seven West Media or any other person in relation to such an agreement.
Under the Proceeds of Crime Act 2002 (Cth) (PocA), the power of the Australian Federal
Police is to apply to a court for orders to confiscate any literary proceeds paid to persons
convicted of certain crimes. This is a discretionary civil remedy. Under the Proceeds of
Crime Act, the AFP may commence civil (not criminal) proceedings to stop such payments
being made. The Court may grant the application, having taken into account various
factors including the length of time since the crime was committed and the public interest
in payments for interviews being made.
Despite this, Seven West Media and its representatives were treated in the same manner
as one might expect in relation to serious criminal conduct. This has resulted in serious
damage to the reputation of Seven West Media, its parent company Seven Group
Holdings, and various individuals employed by these companies and their legal
representatives.
It is extremely disappointing that the Attorney General Senator George Brandis and the
Minister for Justice Michael Keenan did not make more substantial independent enquiries
as to what had occurred before indicating their support for the AFP’s actions. The public
endorsement of the treatment of Seven by senior political figures significantly added to the
damage inflicted on Seven West Media and Seven Group Holdings in this process.
The subsequent failure to follow up clear errors and poor judgment as they came to light
seems extremely difficult to explain. In stark contrast to the immediate aftermath of the
search warrants, there has been no public statement from any Government representative
since Justice Jagot’s ruling on 26 March to quash the search warrants and her finding that
the AFP had materially misled the Magistrates who had issued them.
2. Chronology of Events
A full Chronology of all relevant events since 10 February 2014 is contained in
[Attachment 1] to this submission.
The key dates are:
10 February Schapelle Corby released from Kerobokan Prison in Bali.
11 February Production Orders issued on Seven West Media. These orders requested material to be produced within 3 days.
14 February First set of documents provided to the Australian Federal Police by Seven West Media. Clarification of scope of Production Order sought from AFP but no clarification was received.
17 February AFP extends time for compliance with Production Order to close of business that day. Seven provides further documents and indicates it is still searching for any additional documents. A repeated request to clarify scope following the 14 February request was made. Again there was no
response from the AFP.
AFP approaches the Local Court to seek a Search Warrant to be issued against Seven West Media, despite the fact that the time for compliance with the Production Order has not expired. It also seeks associated Orders under section 246 of the PoCA against Justine Munsie and a Seven West Media employee.
18 February AFP executes Search Warrants at various premises of Seven West Media and its lawyers Addisons. Over 30 armed police from Serious and Organised Crime are involved
21 February AFP writes to Seven [Attachment 2] admitting that allegations contained in a Section 246 Order that Ms Munsie, a respected partner with the law firm Addisons, was suspected of committing a criminal offence was a “word processing error”.
Attorney General Senator George Brandis says in a statement that the dispute was a matter for the AFP but he was concerned "about how this appears to have been handled" and that "I will be seeking to establish how this error was apparently made by the AFP."
22 February AFP Deputy Commissioner Phelan holds a press conference in Canberra to again apologise to Ms Munsie but persists in asserting the conduct of the AFP was fully justified because Seven had not complied with the Production Orders served on it. Deputy Commissioner Phelan also maintains it was necessary to execute a search warrant in order to prevent funds leaving the jurisdiction.
24 February Seven West Media, Addisons and Justine Munsie commence proceedings in the Federal Court seeking judicial review of the search warrants and associated orders. Commissioner Tony Negus and Deputy Commissioner Phelan appear before Senate Estimates and are questioned about the Seven West Media search warrants. They again maintain that the warrants were necessary because Seven had not complied with Production Orders. Attorney General Senator George Brandis says at Senate Estimates that he “has no criticism to offer of the AFP, having heard the account that has been given tonight to this Estimates Committee and having…heard from Commissioner Negus on Tuesday afternoon of last week and received a written briefing the following day. Also, I should add for completeness, having had discussed the matter with my junior minister, Mr Keenan, who I know has had several conversations with Commissioner Negus in the last several days, I do not offer any criticism at all.” Senator Brandis makes no mention of the concerns he expressed only 3 days previously about how the matter had been handled or the steps he had taken to establish how the errors made by the AFP occurred. 7 March Federal Court hearing before Her Honour Justice Jagot. 13 March AFP abandons its investigation [Attachment 3]
26 March Justice Jagot hands down her judgment in favour of Seven West Media, Addisons and Justine Munsie. The search warrants are quashed and Jagot J finds that the AFP had materially misled the Magistrates who issued the warrants. A report from the West Australian reporting the result is [Attachment 4]. The judgment is annexed at [Attachment 5].
3. Execution of the Search Warrants
The search warrants were executed at Seven West Media’s Pyrmont headquarters, the offices of Pacific Magazines and the Sunday Night program and Addisons on Tuesday, 18 February 2014. The execution of the search warrants involved more than 30 Australian Federal Police agents from Serious and Organised Crime, many of them armed and deliberately and overtly displaying their weapons, in an exercise which began before 9am and lasted well into the evening.
The AFP seized documents from computer hard drives, including material which fell well outside the scope of material referred to in the search warrant. For instance, a copy of the entire hard drive of our solicitor from 1 December 2013 was made and seized from our solicitor’s premises.
Whilst on Seven West’s premises, the AFP had access to and were able to observe a range of documents and email communication relating to past, current and future news and current affairs stories unrelated to Schapelle Corby or the Corby family, some of which involve confidential information and confidential sources.
No material existed or was seized which evidenced an agreement by Seven West Media to pay Schapelle Corby for a media interview.
The conduct of the AFP during the execution of the warrants must be viewed in light of the previous dealings between the AFP and Seven/Addisons identified in the timeline referred to above.
Given the way in which Seven had rendered assistance to the AFP, including by making its solicitor available at her home to take delivery of a single letter and the fact that the matter did not concern criminal conduct of any kind, the actions taken by the AFP in applying for and executing the warrants were on any reasonable view entirely unnecessary and completely disproportionate to the stated objectives of the warrants. Serious questions surely arise about the manner in which decisions were taken in this matter and whether scarce public resources, both human and financial, have been used
appropriately. In particular:
In particular:
(a) Why was it necessary to deploy over 30 Federal Agents, many of them armed and with their firearms plainly visible, to search the commercial premises of Seven and Addisons? This seems to amount to a clear misuse of Commonwealth resources. The AFP knew from documents produced on the Production Order and explanations given by Ms Munsie of the nature of Seven’s dealings with the Corby family throughout the time of Schapelle Corby’s incarceration.
Seven had produced two recent agreements with members of the Corby family as well as several historical agreements pursuant to the Production Order. Seven then volunteered production of another draft letter agreement (not the subject of the Production Order) soon after the commencement of the execution of the Seven Warrant. The use of large numbers of armed agents in these circumstances to
search for hours for evidence of arrangements which simply do not exist is unjustifiable.
(b) The presence of such a contingent of armed Federal Agents unsurprisingly caused distress to Seven’s staff, including heavily pregnant women. Photos of clearly armed officers are at [Attachment 6]. We understand that the AFP Commissioner’s Order on operational safety (CO3) requires agents to carry all issued munitions and equipment while on operational duty except in limited circumstances. Should the AFP’s operational guidelines prohibit the carriage of firearms in relation to non-criminal matters? If firearms are carried in these circumstances, should there be operational guidelines to recommend that they are not displayed?
(c) Why did the agents in attendance at Seven’s premises seek to execute the warrants, including in relation to documents held by Seven’s in house lawyers (in the offices of those lawyers) in the face of objection made by Seven and the request that the search not commence until Seven’s independent solicitor had arrived to provide advice? Such conduct is in breach of basic protocol and specifically in breach of the General Guidelines between the AFP and the Law Council of Australia as to the execution of search warrants on lawyers’ premises, law societies and like institutions in circumstances where a claim of legal professional privilege is made;
(d) 8 Agents were sent to execute the warrant at Addisons where they spent 7 hours searching two small offices and the hard drive of Ms Munsie who informed them precisely where they could find any documents which related to Seven and any member of the Corby family and the date range of such documents. Despite this assistance, the AFP removed the entirety of Ms Munsie’s hard drive from 1 December 2013 including personally sensitive, confidential and privileged information unrelated to the action in any way. Is this appropriate?
(e) Why did AFP agents suggest to a Seven News reporter and a Seven West senior executive that filming the warrant was not permitted and that legal consequences would flow if Seven News continued to do so? Deputy Commissioner Phelan subsequently admitted in his press conference on 22 February that filming of the execution of search warrants is not illegal [Attachment 7 – Seven News story, 18 February 2014].
4. Federal Court Proceedings
On 24 March 2014, Seven West Media, Pacific Magazines, Addisons and Addisons
partner, Justine Munsie, commenced proceedings in the Federal Court of Australia
seeking judicial review of the search warrants and associated orders which had been
issued at the AFP’s request. The review application was heard by Her Honour Justice
Jagot on Friday, 7 March 2014 and judgement was delivered on 26 March 20141.
The applicants argued that the decision to issue the warrants ought to be set aside
because of the misleading and prejudicial nature of the information placed before two
Local Court Magistrates by the AFP. That information included:
• Statements contained in the search warrants that certain persons, including Ms
Munsie were “suspects” in an investigation, when it was common ground that none
of those persons, other than Schapelle Corby, was or had ever been a “suspect”;
• Statements contained in section 246 orders that Ms Munsie and another Seven
West Media employee were “reasonably suspected of having committed a criminal
offence” when it was again accepted that none of those persons was or had ever
been so suspected. Although counsel for the AFP described these statements as
mere “errors” and the AFP Commissioner and Deputy Commissioner had
previously described them as “typos”, Justice Jagot rejected the submission that
the errors were trivial or inconsequential, holding instead that the errors had
materially misled the Magistrates who issued the warrants.
• Assertions made on affidavit by the AFP that Seven West Media had not complied
with the Production Order when in fact we were complying and the AFP had
granted an extension for compliance in any event.
Jagot J found that the decisions made by the Magistrates to issue the search warrants
and section 246 orders were materially affected by legal error and should be quashed,
with the effect that they are taken not to have existed.
Her Honour held that the AFP did not make it clear to the issuing Magistrates that neither
the deriving of literary proceeds nor the payment or facilitation of a payment which might
give rise to a literary proceeds order, is an offence. This ambiguity, together with the
making of the erroneous statements referred to in paragraphs (a) and (b) above in the
urgent circumstances in which the applications for search warrants were made, meant
that it was likely that the Magistrates incorrectly assumed that there was some offence
relating to literary proceeds in the PoCA which would justify issuing the warrants.
Jagot J concluded at [80] that “it is not all difficult to see how and why the [Magistrates]
were led into error by the AFP”.
It was acknowledged by AFP Counsel during the hearing and noted by Jagot J that the
scope of the search warrants was wider than the Production Orders.
Her Honour further found that the AFP had materially misled the Magistrates who issued
the warrants by:
(a) stating that the AFP was not satisfied that Seven had complied with the
production order when a consensual regime was in place for continuing
compliance; and
(b) failing to disclose to the Magistrates the evidence of Seven’s compliance
with the production order.
However, her Honour was bound by authority not to rely on those factors in support of her
decision to quash the warrants as she could not say that there was fraud involved.
5. What was achieved and what else could have been done?
5.1 What was achieved?
At the end of the searches well into the evening of 18 February, the AFP had seized a
swathe of irrelevant documents, including privileged legal advices and copies of computer
hard drives taken from our offices and those of our solicitor which contain documents well
outside those authorised in the warrants. None of these show any payment by Seven
West to Schapelle Corby for an interview.
Seven West volunteered to the AFP a draft (unsigned) agreement with Mercedes Corby
which proposed payment to Schapelle Corby but this agreement was never entered into
and the AFP has admitted that Seven West was not required to produce draft documents
under the original Production Order.
The AFP abandoned its investigation on 13 March 2014. Significant amounts of time and
resources had by this time been wasted by the AFP, Seven and Addisons on an entirely
unnecessary and excessive operation.
The AFP has informed Seven that all documents seized have now been returned to
Seven and Addisons respectively. However Seven has no knowledge of whether any
confidential material has been accessed or copied prior to being returned to it. We
understand that there is no protocol that governs the manner in which sensitive and
confidential material is to be handled once it has been removed pursuant to a civil search
warrant. This is in contrast to procedures in relation to material where privilege is claimed
where a protocol does exist.
We would submit that given the potential for highly sensitive material such as journalists
sources to be collected in matters such as these, a clear protocol to ensure these
materials are not inappropriately accessed is clearly needed.
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