FEDERAL COURT OF AUSTRALIA Freeman v Health Insurance Commission [2000] FCA 54 CRIMINAL LAW – search warrant – form – validity – failure to specify period during which warrant may be executed – power to issue is in connection with investigation – what constitutes an investigation WORDS & PHRASES – "investigation" Health Insurance Commission Act 1973 (Cth) s 8L and s 8Y Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 discussed Health Insurance Commission v Freeman (1998) 158 ALR 267 discussed Lamb v Moss (1983) 49 ALR 533 referred to R v Director of Serious Fraud Office; Ex parte Smith [1993] 1 AC 1 referred to JACK FREEMAN V HEALTH INSURANCE COMMISSION, ROY LLEWELYN CORBETT & DAVID HARPER McLENNAN VG 689 of 1996 JUDGE: FINKELSTEIN J DATE: 8 FEBRUARY 2000 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 689 of 1996 BETWEEN: JACK FREEMAN Applicant AND: HEALTH INSURANCE COMMISSION, ROY LLEWELYN CORBETT and DAVID HARPER McLENNAN Respondents JUDGE: FINKELSTEIN J DATE OF ORDER: 8 FEBRUARY 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision of the third Respondent made on 12 November 1996 to issue the search warrant purportedly pursuant to s 8Y of the Health Insurance Commission Act 1973 (Cth) authorising the second respondent to enter and search the Flemington Police station be quashed. 2. The 168 Medicare Assignment forms seized by the Victoria Police on 31 October 1994 at the premises of the Applicant be delivered into the custody of the Office of Public Prosecutions (Victoria) to be used in such a manner as may be permitted by law in connection with the prosecution of the Applicant for offences under the Health Insurance Commission Act 1973 (Cth) provided that an authorised officer of the Office of Public Prosecutions (Victoria) undertakes to return the said forms to the Applicant upon the conclusion of the prosecution and any appeals therefrom. 3. The Applicant's costs of the application be paid by the first Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 689 of 1996 BETWEEN: JACK FREEMAN Applicant AND: HEALTH INSURANCE COMMISSION, ROY LLEWELYN CORBETT and DAVID HARPER McLENNAN Respondents JUDGE: FINKELSTEIN J DATE: 8 FEBRUARY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 12 November 1996 the second respondent, Roy Llewellyn Corbett, attended the office of the third respondent, a stipendiary magistrate, and applied for the issue of a search warrant under the provisions of s 8Y of the Health Insurance Commission Act 1973 (Cth). Section 8Y provides: "(1) If: (a) an information on oath is laid before a magistrate alleging that an authorised officer suspects on reasonable grounds that there may be on or in any premises particular evidential material; and (b) the information sets out those grounds; the magistrate may issue a search warrant in respect of the premises. (2) The magistrate must not issue the warrant unless he or she has been: (a) advised what other warrants (if any) have been sought under this Part in respect of those premises in the preceding 5 years; and (b) given a copy of the Managing Director's instrument in writing referred to in subsection 8L(1). (3) The warrant must authorise an authorised officer named in the warrant with such assistance, and by such force, as is necessary and reasonable: (a) to enter the premises; and (b) to search the premises for the evidential material; and (c) if the authorised officer finds the evidential material on or in the premises – to seize it. (4) The magistrate is not to issue the warrant unless: (a) the informant or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought; and (b) the magistrate is satisfied that there are reasonable grounds for issuing the warrant; and (c) the magistrate is satisfied that execution of the warrant will not cause an unreasonable invasion of any patient's privacy. (5) There must be stated in the warrant: (a) the purpose for which the warrant is issued, and the nature of the offence in relation to which the entry and search are authorised; and (b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and (c) a description of the kind of evidential material to be seized; and (d) a day, not later than 7 days after the day of issue of the warrant, upon which the warrant ceases to have effect; and (e) whether or not the warrant authorises the exercise of powers in relation to records containing clinical details relating to patients." "Evidential material" is defined in s 3(1) to mean a thing relevant to a relevant offence. "Relevant offence" is defined in s 3A to include an offence against the Health Insurance Act 1973 (Cth). 2 Section 8Y is one of a number of provisions, each found in Part IID of the Health Insurance Commission Act, that confers power on the Health Insurance Commission to obtain information. For example, a person can be compelled to provide information or produce documents: s 8P. Authorised officers of the Commission may obtain a search warrant to enter premises to ascertain whether certain offences have been committed: s 8U. The circumstances in which those powers can be utilised are limited. The Managing Director of the Commission may, by instrument in writing, authorise those powers to be exercised only "in connection with an investigation that the Commission is conducting in the performance of its functions": s 8L(1). The powers must not be exercised except in connection with an investigation for which an authorisation is in force: s 8L(2). 3 Mr Corbett placed before the magistrate an information on oath titled "Application for Search Warrant" setting out the grounds upon which he suspected there may be located on certain premises particular evidential material. In the information Mr Corbett deposed that he had been appointed by the Managing Director of the Commission to be an authorised officer for the purpose of exercising powers under the Health Insurance Commission Act. A copy of the authorisation was annexed to the information. That authorisation provided that "powers under Part IID of the Act … be exercised in connection with an investigation into the possible commission of relevant offences (within the meaning of the Act) by Dr Jack Freeman." The information stated that a search warrant was sought in connection with that investigation. That investigation had begun when the Commission was advised by the Victoria Police in 1994 that they had reason to suspect that Dr Freeman had committed offences against the Health Insurance Act. 4 The Health Insurance Act makes provision for the payment of benefits, called medicare benefits, to eligible persons in respect of certain medical services rendered to those persons. An eligible person may assign the right to payment of a medical benefit to the medical practitioner who rendered the service. Section 127(1) provides that a medical benefit shall not be assigned unless the practitioner causes the particulars relating to the professional service to be set out in the agreement effecting the assignment. A contravention of this subsection is punishable by a fine or imprisonment or both. Section 128B prohibits the making of a false statement capable of being used in connection with a claim for a benefit under the Health Insurance Act. A contravention of s 128B may also result in the imposition of a fine or imprisonment or both. 5 In the information Mr Corbett stated that there were reasonable grounds for suspecting that the "168 medicare assignment forms (in triplicate) seized by the Victoria Police on 31 October 1984 at the premises of Dr Jack Freeman" were at the Flemington Police Station. The information explained that a stipendiary magistrate had found that the seizure of the assignment forms by the Victoria Police was unlawful and had ordered that they be returned to Dr Freeman. It was clearly inferred that the assignment forms were being held at the Flemington Police Station pending their return to Dr Freeman. Finally, Mr Corbett deposed that the medicare assignment forms had evidential value, because they pointed to offences against s 128B(1) of the Health Insurance Act having been committed by Dr Freeman. 6 The magistrate issued a search warrant authorising Mr Corbett to enter the Flemington Police Station to search for and seize the 168 medicare assignment forms. To comply with s 8Y(5) the warrant was required to specify a day not later than seven days after the day of issue of the warrant, upon which the warrant would cease to have effect. The final paragraph of the search warrant was intended to give effect to this requirement. That paragraph reads: "This warrant ceases to have effect on …… a date not later than seven days after issue of the warrant." No date was inserted in the space. 7 The search warrant was executed at the Flemington Police Station and the 168 medicare assignment forms were seized. Those forms are presently in the possession of the Court pending the outcome of this proceeding. 8 Dr Freeman now seeks an order that the decision to issue the search warrant be quashed or alternatively that it be declared that the warrant is invalid and of no effect. He also asks for an order that the medicare forms be returned to him on the basis that the warrant did not authorise their seizure. Other relief, of an ancillary or consequential kind, is also sought. The jurisdiction of the Court is invoked under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). 9 The first ground upon which the validity of the search warrant and the decision to grant it is challenged, is that the warrant was not obtained in connection with an investigation that was being conducted by the Commission. There are two elements to this submission. One is that the Commission had not commenced an investigation into the possible commission of relevant offences by Dr Freeman. If there was no investigation then the Commission accepts that the application for the issue of the warrant should not have been made and that the magistrate should not have issued the warrant. In that circumstance the application for the warrant would have contravened s 8L(2) and the issue of the warrant would have been procured by misrepresentation. The second basis for the submission is that even if there was an investigation taking place the search warrant was obtained not for the purpose of that investigation, but for the sole purpose of enabling the medicare assignment forms to be tendered in evidence in proceedings for the commitment of Dr Freeman for trial. This, it is said, is not an exercise of power "in connection with an investigation" of Dr Freeman. 10 I should mention that it was conceded by Dr Freeman that if the Commission was conducting an investigation into the possible commission by him of offences against the Health Insurance Act, that investigation was in the performance of the functions of the Commission. This concession was rightly made. When the relevant events occurred the functions of the Commission were found in ss 5 to 8F of the Health Insurance Commission Act: see now ss 5 to 8AA. One of those functions was to perform such functions in relation to health insurance as are prescribed in the regulations: see s 8E; see now s 8AA. There are functions that are prescribed by the Health Insurance Commission Regulations (Cth). Regulation 3(2) relevantly provides: "For the purposes of subsection 8E(1) of the Act, the following functions are prescribed: (a) to devise and implement measures intended – (i) … (ii) … (iii) to prevent, or facilitate the detection of, activities related to claims for payment, or the receipt, of medicare benefits that may constitute an offence under the Health Insurance Act or the Crimes Act 1914; (b) … (c) to investigate cases where there are reasonable grounds to suspect that: (i) an act done by a person in relation to a claim for payment, or the receipt, of medicare benefits may constitute an offence under the Health Insurance Act or the Crimes Act 1914; or (ii) a person may have committed an offence against [particular subsections] of the Health Insurance Act; and, where an investigation discloses that there is sufficient evidence to warrant a prosecution, to refer the case investigated and the information obtained in the course of the investigation to the Australian Federal Police or the Director of Public Prosecutions." 11 If the Commission was conducting an investigation into the activities of Dr Freeman it was to discover whether he had committed offences against s 127 and s 128B of the Health Insurance Act. So much is common ground. Thus the first issue that must be determined is whether such an investigation had begun. This is a question of fact. And it is to the facts that I will now turn to discover the answer. 12 Mr Corbett was employed by the Commission as a senior investigations officer. He held that position from 1984 until his retirement in early 1999. On 27 October 1994 Mr Corbett received a telephone call from Detective Senior Constable Bateson. Mr Corbett was told by Detective Senior Constable Bateson that the Victoria Police had information that Dr Freeman had been requesting patients to sign blank medicare assignment forms for services that had not been provided and that this allegation was being investigated. Later the same day Mr Corbett and another officer of the Commission went to the Flemington Police Station to meet Detective Senior Constable Bateson. The Commission officers were told that the Victoria Police intended to execute a search warrant at each of two surgeries operated by Dr Freeman and at Dr Freeman's home. Detective Senior Constable Bateson asked the Commission officers whether they would attend on the execution of the search warrants to assist the police officers with the identification of documents relating to medicare claims. The search warrants had been obtained under s 465 of the Crimes Act 1958 (Vic). 13 Mr Corbett was of the view that it was necessary for him to obtain the authority of the Commission before he could provide assistance to the Victoria Police. On 28 October 1994 Mr Corbett discussed Detective Senior Constable Bateson's request for assistance with G. Probyn, the Commission's Investigations Manager and D. Burdett, the Commission's Victorian Manager of Professional Review. Mr Corbett was instructed by Mr Probyn that he and other Commission officers could "go ahead and assist the police" in the execution of the warrants. Later the same day Mr Burdett wrote to the General Manager of the Commission's Professional Review Division seeking "to have the investigation into the activities of Dr Freeman recognised as an authorised investigation." Appended to the letter was a report that had been prepared by the Commission's Deputy Manager, Investigations, D Barrow. The report noted that the request was "for an ongoing investigation into Dr Jack Freeman … to proceed utilising powers under Part IID of the Health Insurance Commission Act 1973". The particular power that was identified was the power to obtain information under s 8P. 14 On 31 October 1994 members of the Victoria Police executed a search warrant on each of Dr Freeman's two surgeries and at his residence. A Commission officer was in attendance at each place. Mr Corbett attended at one of the surgeries. He advised what documents should be seized. Presumably like advice was given by the other Commission officers. 15 Mr Corbett provided additional assistance to the Victoria Police in connection with their investigation. On 22 November 1994 Detective Senior Constable Bateson informed Mr Corbett that he wished to interview a number of Dr Freeman's patients. He asked that he be given information about certain patients. Mr Corbett provided Detective Senior Constable Bateson with copies of the Commission's records relating to those patients. 16 Following the investigation by the Victoria Police Dr Freeman was charged with having committed 519 offences. There were 150 charges for alleged contraventions of s 127 of the Health Insurance Act and 163 charges for alleged contraventions of s 128B of that Act. Dr Freeman was also charged with having committed various common law offences, offences against the Crimes Act 1958 (Vic) and offences against the Drugs, Poisons and Controlled Substances Regulations 1995 (Vic). 17 Proceedings for the commitment of Dr Freeman for trial on those charges commenced in the Magistrates' Court at Melbourne on 13 November 1995. During the committal the informant sought to tender the 168 medicare assignment forms that had been seized by Victoria Police. The medicare assignment forms were an important part of the evidence that was to be led to show that there had been contraventions of s 127 and s 128B of the Health Insurance Act. Dr Freeman objected to the tender of the forms on the ground that their seizure was unlawful. He argued that a search warrant could not issue under s 465 of the Crimes Act 1958 (Vic) to obtain evidence to establish a breach of Commonwealth law. The magistrate presiding over the committal accepted this submission, held the warrants to be invalid and ordered the return of the medicare assignment forms to Dr Freeman. 18 The rejection of the tender and the order for the return of the medicare assignment forms meant that it was unlikely that Dr Freeman would be committed to stand trial for offences against s 127 and s 128B of the Health Insurance Act. To retrieve the position counsel for the informant spoke to Frank Hegarty, the then Acting Manager of Investigations, and told him what had occurred. Counsel suggested that the Commission should as soon as possible obtain a search warrant to seize the medicare assignment forms that were then at the Flemington Police Station "so that the charges [against Dr Freeman] could proceed". Mr Corbett also spoke to counsel. Mr Corbett suggested that rather than obtaining a search warrant to obtain the forms, a notice to produce documents under s 8P should be served on the Victoria Police. Mr Corbett then discussed his proposal with M Hannan from the Office of the Commonwealth Director of Public Prosecutions. Mr Hannan advised that a s 8P notice was "the way to go". Accordingly, on the following day, 8 November 1996, a notice was served on Detective Senior Constable Bateson who immediately handed the medicare assignment forms to Mr Corbett. 19 A little while later Mr Hannan began to have doubts about the use of a s 8P notice to obtain the forms. He informed Mr Corbett of those doubts and told him that it would be necessary to return the medicare assignment forms to the Victoria Police and issue a search warrant under s 8Y to obtain them. Mr Hannan then prepared a draft search warrant and an information to be sworn by Mr Corbett. These were the documents that were presented to the magistrate on 12 November 1996. 20 Do these facts establish that the Commission had embarked upon an investigation of the activities of Dr Freeman? The answer depends upon the meaning of the word "investigation" and the application of that meaning to the facts. Strictly it should not be necessary to define what is meant by an "investigation". It is not a term of art. It must be given its ordinary meaning as a word used in the English language. And its meaning is well known. Any resort to a dictionary or to the decided cases is not likely to provide assistance. Nonetheless, I will set out what I understand to be the meaning of the word. First I note that it is derived from the Latin "investigatio" meaning to trace or track. To investigate a matter is to search into, examine or inquire into that matter, for the purpose of ascertaining facts. It will usually involve a step by step and patient inquiry. For anyone who is interested to look beyond the standard dictionaries, the following cases can be consulted: Mason v Peaslee 173 Cal App 2d 587 (1959); People v One 1941 Chevrolet Coupe 113 Cal App 2d 578 (1952); Lukert v Eldridge 139 P 999 (1914); Haines v Askew 368 FSupp 369 (1973). 21 One approach to determine whether an investigation was under way is to consider the views of Mr Corbett. He was the senior investigations officer of the Commission. His duties included the investigation of possible fraud against the medicare program. If an investigation was being conducted it was Mr Corbett who was the investigator. 22 Mr Corbett was asked a number of questions about this subject by counsel for Dr Freeman. He answered each question carefully and honestly. No party has suggested that any aspect of his oral evidence should be rejected and I unhesitatingly accept that evidence. This is what Mr Corbett said: "Q. As far as you and the Health Insurance Commission was concerned, this was a prosecution being conducted by the state prosecuting authorities, correct? A. Correct. Q. You had no involvement in it in any way? A. No. Q. You had no involvement in the actual investigative process in any way, correct? A. Correct. Q. In short, the only thing that you were going to do, you were taking appropriate advice about issue of warrants or otherwise but it wasn't your decision because it wasn't your case? A. Correct." Mr Corbett's attention was then drawn to the application for the search warrant and the following exchange took place: "Q. In point of actual fact that's just a pro forma recital, wasn't it? You didn't draw up that warrant? A. No, I didn't – well, I assisted in its drawing with Mr Hayfield. Q. Yes, but as far as that particular paragraph is concerned that was just a paragraph that goes in automatically, doesn't it, to every application? A. I would say so, yes. Q. In fact the truth of the matter, and I'm not suggesting it's a lie, you understand, I'm just saying that the actual truth, the facts of the matter are that the Health Insurance Commission wasn't conducting any investigation as such, was it? A. We were assisting - - - Q. You were assisting someone else's investigation? A. Yes. Q. But you weren't conducting your own? A. No, not at that time." 23 I then intervened to ask Mr Corbett to specify what he did that might constitute the carrying on of an investigation. Mr Corbett said that he obtained "computer details with regard to [the] medicare assignment forms" to be provided to the Victoria Police. He stated that this would be classified within the Commission as an investigation. He said that he also prepared running sheets of his conversations with members of the Victoria Police. Then he gave the following evidence: "Q. What I'm really trying to get to the bottom of is, apart from giving information to the police, what step did you take - - -? A. To investigate the matter. Q. Correct? A. I would say very little, your Honour. Q. Could I say none? A. I say very little, your Honour, because there was instances where - - - Q. What's the difference between 'very little' and 'none'? A. There was instances where I would have to go and speak with Bateson personally. Q. They're the one's that you refer to in your affidavit? A. Yes. Q. Where he would ring you up and say, 'What about this?' or 'What about that'? A. Yes. Q. But in ordinary circumstances you wouldn't regard that, having regard to how you conduct the investigations, either on your own or jointly with somebody else, you wouldn't regard any of that as carrying out an investigation? A. No." 24 Counsel for the respondents took up the matter in re-examination. First Mr Corbett was reminded that he had been asked questions concerning the steps that he had taken which might be characterised as steps in an investigation into Dr Freeman. His counsel then asked the following questions: "Q. May I ask you this. Did you at any stage give any consideration to the question of whether there may have been an offence committed under the Health Insurance Act? A. Most certainly I did, yes. … Q. Can you tell the court what process of reasoning, so far as you recollect, you adopted in considering that question, whether there'd been an offence? A. Well, as I mentioned, I had seen the medicare assignment forms and – - - HIS HONOUR: At the time that they were seized? A. I think Bateson showed them to me. Q. Yes? A. And from my experience with the Commission I realised, by looking at these forms, that although the forms were in fact signed by the patient, there was nothing else on them and section 127 of the Act states that a patient must not be requested to sign a form prior to them being completed and he must also be presented with the green copy of the medicare form because they're in triplicate, which is the patient copy. It is marked Patient Copy down the side, and those green copies were still attached to the original documents, and, well, I knew that this was incorrect. … Q. You've told the court in answer to questions that were asked by my learned friend that at about this time, no officer of the commission exercised any of what one might describe in the broad sense as its investigatory powers, such as interviewing patients? A. Yes. Q. Rather, the steps that were taken were to provide information to the Victoria Police? A. That's correct. Q. And to, I think as it was put, leave the investigation of the substantive matters touching Dr Freeman to the Victoria Police? A. That's correct. … Q. Are you able to offer any reason that you had, as the case office, for leaving the substantive investigation of this matter to the Victoria Police? A. They would appear to be conducting the investigation as such, and our investigation was just merely a minor part, and we were providing information to them." 25 I should say at once that the evidence to which I have referred clearly shows that when application was made for the issue of the search warrant, the Commission had not begun an investigation into the activities of Dr Freeman. It had not undertaken any inquiries. It had not carried out any examination of the facts. Mr Corbett had not been searching into or attempting to track down anything at all. The only activity that the Commission had undertaken was to provide information and other assistance to the Victoria Police for the purpose of assisting the police with their inquiry. When this was taking place the Commission was not conducting a parallel inquiry. As Mr Corbett conceded on more than one occasion all that the Commission had done was provide information to the Victoria Police. 26 The Commission submits that I should ignore the opinion of Mr Corbett and on the basis of other evidence conclude that an investigation was being conducted by the Commission. It acknowledges that the existence of an investigation is a question of fact and says that on this issue Mr Corbett's opinion cannot be decisive. It points to a number of facts from which it argues that it must be inferred that an investigation was taking place. 27 It is difficult to disregard the opinion of Mr Corbett when the Commission's case is that Mr Corbett was the officer who was undertaking the investigation on its behalf. It is true that certain things might be done unconsciously, but I do not accept that an investigation is one of them . To conduct an investigation is to carry out a deliberate and intentional process that involves the application of the mind of the investigator to the task at hand. I do not accept that a person can conduct a search or inquiry to uncover facts without being aware that this is what is taking place. Moreover, Mr Corbett is under no misapprehension with regard to the meaning of the word. He knows precisely what is involved in an investigation and his evidence is that he was not conducting one. 28 However, in deference to the arguments that were put, I will briefly consider the facts that the Commission relies upon to show that Mr Corbett was conducting an investigation. There were seven factors in all that were identified. I have already mentioned some, but it is convenient to repeat them along with the others. First, Mr Corbett provided information to the Victoria Police concerning Dr Freeman's patients. Second, Mr Corbett opened a fresh part of a file that the Commission maintained in respect of Dr Freeman. Third, Mr Corbett prepared a running sheet in which he recorded actions that he took concerning Dr Freeman. Fourth, Mr Corbett examined the blank medicare forms supplied to him by the Victoria Police and considered whether federal offences had been committed. Fifth, Mr Corbett maintained contact with the Victoria Police especially in relation to the committal proceeding. Sixth, Mr Corbett took steps to preserve the medicare assignment forms for presentation as evidence in the committal proceeding after the magistrate had ruled them to be inadmissible. Finally, Mr Corbett provided assistance to the Victoria Police who were conducting their own investigation into the activities of Dr Freeman. 29 In a sense it is the relationship between the investigation that was being conducted by the Victoria Police and the activities of the Commission that lies at the heart of the issue. The Victoria Police were conducting an investigation to determine whether Dr Freeman had committed offences against both State and Federal laws. The Commission's first involvement in the matter began when the Victoria Police requested assistance in connection with that investigation. It is the proper characterisation of the Commission's activities that must be determined. Did the Commission do more than provide assistance to the Victoria Police? Mr Corbett's view is that it did not. The other possibility is that the Commission was also conducting its own investigation, either in conjunction with that being conducted by the Victoria Police or on its own account, but at a much lower level than the Victoria Police investigation. 30 The second factor (opening up a fresh part of a file) certainly indicates that the Commission intended to commence an investigation. So also does the authorisation that was issued on 2 November 1994 pursuant to s 8L(1) of the Health Insurance Commission Act. But an intention to begin an investigation is not sufficient. To engage the provisions of Part IID of the Act, an investigation must be on foot. The first factor (providing information to the Victoria Police) and the seventh factor (providing assistance to the Victoria Police) are not activities that by themselves would amount to an investigation. They are factors that confirm the evidence of Mr Corbett that the Commission was merely providing assistance to the police. Maintaining contact with the Victoria Police (the fifth factor) is neutral in the sense that it might be a step in an investigation or it might not. It depends upon the nature of the contact. Maintaining running sheets (the third factor) is of the same character. That fact neither establishes nor tells against the existence of an investigation. What is recorded in the running sheets is, however, important. All that appears is the various requests for assistance and details of the assistance that was provided. There is no record of any step that can be characterised as a step in an investigation. 31 The fourth factor (examining the medicare assignment forms to determine whether offences had been committed) is a more significant point so far as the Commission is concerned. That conduct is precisely what might be expected of a person who is conducting an investigation. However, Mr Corbett did not examine the material in the course of an investigation. He first saw the medicare assignment forms when members of the Victoria Police were executing the State search warrants. It was then that he formed the opinion that they disclosed that offences may have been committed by Dr Freeman. At that time Mr Corbett had not been authorised to conduct an investigation. He had sought and obtained permission to provide assistance to the Victoria Police. The authority to conduct the investigation came later. 32 The final factor relied upon is "the preservation of the medicare forms for presentation in evidence in the committal proceeding, after the magistrate had ruled them to be inadmissible" to use the words of counsel for the respondents. This is a reference to the steps taken by Mr Corbett and others to retain possession of the medicare assignment forms and to overcome the order that the forms be returned to Dr Freeman. The steps included the issue and service of a s 8P notice, and the application for and the execution of the search warrant at the Flemington Police Station. The respondents say that these steps establish that the Commission was carrying out an investigation. They say that there is binding authority of the Full Court to that effect. 33 Leaving to one side for a moment the decision of the Full Court, the respondents' argument requires acceptance of two broad, but related propositions. The first is that the issue of a search warrant for the sole purpose of procuring evidence for a pending prosecution is necessarily an act in connection with an investigation into the offences the subject of the pending prosecution. The second proposition is that the mere preservation of evidence for the prosecution of an offence will constitute a step in the investigation into that offence. 34 In the absence of binding authority I would reject each of these propositions unless they are qualified in some respect. I begin by noting that there is a distinction to be drawn between an executive function of government on the one hand and a judicial function on the other. To conduct an investigation is to carry out an executive function. To gather evidence for a prosecution is usually related to the judicial function. Thus, when a power is conferred by the Health Insurance Commission Act that is to be exercised only in connection with an executive function, that is to say an investigation where there are reasonable grounds to suspect that offences have been committed, the power is not available when the sole purpose for its exercise is to act in aid of a judicial function. It follows, in my opinion, that if the sole purpose for the issue of a search warrant is to obtain evidence to tender in a criminal prosecution the warrant cannot be issued under s 8Y. The reason is that the search warrant is not being sought in connection with an investigation. Indeed, once it is established that the sole purpose for the issue of the search warrant is for use in a criminal proceeding, it necessarily follows that the search warrant is not being sought in connection with an investigation by the Commission at all. 35 This situation may be contrasted with the power of investigation considered by the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. There the scope of s 29(2)(a) of the Clean Waters Act 1970 (NSW) was at issue. That subsection empowers an authorised officer to issue a notice to produce "documents relating to the discharge from the premises of pollutants into the waters or relating to any manufacturing, industrial or trade process carried on on those premises". By majority (Mason CJ, Brennan, Toohey and McHugh JJ, Deane, Dawson and Gaudron JJ dissenting) the High Court held that a notice could issue under s 29(2)(a) to compel production of information although criminal proceedings were on foot. The majority held that there was nothing in the language of s 29(2)(a) which required it to be given a restrictive construction (Caltex Refining Co at 507 per Mason CJ and Toohey J, at 516-517 per Brennan J). Accordingly, a notice could issue under the subsection to require production of documents for the purpose of investigating whether a breach of the statute had occurred and also for the purpose of providing evidence of such a breach. The point to note is that s 29 is not confined for use in investigations. For that reason it may be used for gathering evidence. This is in direct contrast to the powers found in Part IID whose exercise is conditional on there being an investigation. 36 In some circumstances the preservation of evidence to prove that an offence has been committed may be a step in an investigation into that offence. To decide whether it is part of an investigation, the difference between an investigation of an offence and the prosecution of that offence must be kept in mind. A failure to do so has the potential to cause error. If the only step that a person undertakes is to preserve evidence for use in a proceeding, that will not be an investigative step. In that circumstance the preservation of evidence is connected with the curial process. On the other hand, if, during the course of an actual investigation, it is decided that evidence should be obtained and preserved, taking steps to achieve that object can be part of the investigation. Each case will depend upon its own facts. Sometimes it will be a matter of degree, but in no case will it be correct to say that the mere preservation of evidence without more will constitute a step taken in connection with an investigation. 37 In the present case, if the Commission was conducting an investigation at the time the warrant was issued, the question is not whether the warrant was issued in connection with an executive function or in connection with a judicial function of government. Proceedings for the commitment of a person for trial are administrative in character: Lamb v Moss (1983) 49 ALR 533 and the cases cited at 558. The true question would be whether the warrant was obtained in connection with one particular administrative function or another. In that regard, however, the nature of the inquiry to be undertaken is the same as it would be if the committal was a judicial proceeding, although the point of distinction would not be so clear. 38 What of the authority said to make good the respondents' submission? The case is Health Insurance Commission v Freeman (1998) 158 ALR 267. It arose in consequence of an interlocutory ruling made by me at an earlier stage of this proceeding. Dr Freeman sought inspection of certain documents that had been discovered by the respondents. The documents recorded legal advice relating to the issue of the search warrant. The respondents would not give inspection, because they asserted that the documents were the subject of legal professional privilege. Dr Freeman's answer was that the search warrant had been obtained for an improper purpose and hence privilege could not exist. He relied on the so called "furtherance of fraud" exception to legal professional privilege: Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382; The Attorney-General (NT) v Kearney (1985) 158 CLR 500; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. 39 To determine whether the search warrant had been obtained for an ulterior object, I posed two preliminary questions for determination. They were: first, whether the Commission was undertaking an investigation when the search warrant was issued; and second, if the Commission was conducting an investigation, whether the search warrant was issued "in connection with" that investigation? As regards the first question, I found that in late October or early November 1994 the Commission had begun to investigate whether Dr Freeman had committed offences against the Health Insurance Act in conjunction with a similar investigation that was being undertaken by the Victoria Police. However, I went on to find that the Commission had concluded its investigation by the time charges had been laid against Dr Freeman. It followed from this finding, and I so held, that the search warrant was not obtained in connection with an investigation, but for an ulterior purpose. I then found that, prima facie at least, Mr Corbett was aware that the Commission had not been conducting an investigation. Accordingly I held that privilege did not attach to the documents and I ordered that they be produced for inspection. 40 I also considered a subsidiary argument put by Dr Freeman to the effect that it was not a legitimate use of s 8Y to obtain the issue of a search warrant solely for the purpose of seizing evidential material. I accepted this argument. I held that s 8L prohibits s 8Y being used for the purpose of seizing evidential material by requiring its seizure to be for the purpose of an investigation. I contrasted s 8Y with the power to issue a search warrant to be found in s 465 of the Crimes Act 1958 (Vic) and s 3E of the Crimes Act 1914 (Cth) where a warrant may issue solely for the purpose of obtaining evidence. 41 By leave an appeal was taken to the Full Court, and the appeal was allowed. In his reasons for decision Merkel J (with whom von Doussa and Carr JJ agreed) accepted that "the powers under Part IID can only be exercised in connection with an investigation the Commission is conducting at the time when the powers are exercised": Freeman, above at 272. Merkel J said that the central issue for determination was whether the investigation which had begun in late October or early November 1994 had come to an end after charges had been laid against Dr Freeman. In this regard his Honour said (at 276) that: "The real questions are whether, in the context of the relevant statutory scheme, the obtaining of a search warrant and the seizure of the forms pursuant to it to ensure the retention of the 168 forms for the purpose of Freeman's prosecution: • was an exercise of the Commission's investigatory power under Part IID of the Health Insurance Commission Act; and • was an exercise of that power in connection with the Commission's investigation of Freeman pursuant to the authority issued under s 8L(1) of that Act." Merkel J noted that there is nothing in the nature of a criminal investigation to suggest that it comes to an end upon charges being brought. No doubt his Honour is correct. In a simple case an investigation may well terminate at the moment of charging, but more often than not the investigation will continue at least until the trial commences and sometimes also during the course of a trial: see R v Director of Serious Fraud Office; Ex parte Smith [1993] 1 AC 1 at 39. Then there is the following passage in the judgment (at 277): "Accordingly, examining the matter with reference only to the language of the Act and without the assistance of authority, it seems to me that a search warrant issued, after charges are laid, for the purpose of preserving evidential material in respect of relevant offences the subject of investigation could not be said to be a warrant issued otherwise than in connection with the investigation. The fact that the evidential material is being preserved for the purposes of a pending prosecution in respect of the relevant offences does not alter that conclusion." 42 To the extent that Merkel J was saying that a search warrant, whether obtained for the purpose of securing evidential material or not, must be sought in respect of a matter that is the subject of an investigation (in this case an investigation into the commission of relevant offences) the passage is uncontroversial. It is a statement of the effect of s 8L. However, the respondents assert that Merkel J was also laying down a principle that, provided an investigation is being conducted into the commission of a relevant offence, obtaining a search warrant solely for the purpose of preserving evidential material for the prosecution of that offence is necessarily conduct "in connection with" that investigation. The argument attributes to the Full Court a view that ignores the distinction between conduct that relates to an administrative function and conduct that is connected with a judicial function. It ignores the distinction by making the assumption that obtaining or preserving evidence must always be in connection with an administrative function. Of course this cannot be true. Take the case where there never has been an investigation. Then the issue of a search warrant for the purposes of obtaining or preserving evidence for use in a curial proceeding could not be "in connection with" an investigation, because there is none. When there is an investigation taking place it is a question of fact whether the preservation of evidence is in connection with that investigation or in connection with some other activity. There can be no universal rule. And contrary to the argument by the respondents, this is how the statement of Merkel J should be understood, as is apparent from what his Honour said later in his reasons. In particular (at 278) Merkel J said: "For the above reasons, in my view his Honour erred in concluding that, as a matter of fact, the search warrant was not obtained in connection with an investigation being conducted by the Commission in respect of Freeman. Although the investigation had lain dormant after the bringing of the charges, in my view that investigation was reactivated by the requirement to secure the 168 Medicare forms. I infer, at least on a prima facie basis, that the steps taken to do so were intended to be taken in connection with the ongoing investigation of Freeman by the Commission." 43 In this passage Merkel J draws attention to the purpose for which the particular search warrant was obtained. It was to secure the medicare assignment forms "in connection with the ongoing investigation of [Dr] Freeman". Having identified that the purpose for obtaining the forms was a step in the investigation of Dr Freeman and was not solely for the purpose of producing the forms in the committal proceeding, the conclusion reached is unexceptional. Thus the decision of the Full Court, when properly understood, is not authority for the proposition that whenever a search warrant is issued for the purposes of securing evidence, the issue of the warrant is "in connection with" an investigation. All that the Full Court is saying is that in the circumstances of the particular case, that were then known, the warrant had been issued in the course of an investigation. 44 In the result, on the facts as I have found them to be, Dr Freeman has established that the search warrant is invalid and he is entitled to an order that the decision of the magistrate to issue the warrant be quashed. Ordinarily, a declaration of right would suffice, but in this case the validity of the warrant might be in issue in other proceedings and as a declaration is only binding upon the parties to the suit it is as well to set aside the magistrate's decision. 45 Even if I am wrong in the conclusions thus far reached, I would still have found the warrant to be invalid. Every search warrant must comply with s 8Y(5)(d) in that it must state a date upon which the warrant will cease to have effect. In this connection I do not read the final paragraph of the warrant namely "This warrant ceases to have effect on ……….. a date not later than 7 days after the issue of the warrant" as a statement that the warrant will cease to have effect seven days after issue as the respondents assert. In fact the sentence does not stipulate any particular date on which the warrant will cease to have effect, although it recognises the warrant will have a maximum life of seven days. 46 In my opinion the failure to comply with s 8Y(5)(d) must lead to the invalidity of the warrant. The purpose of ss 8Y(5)(d) is to ensure that a warrant is issued only for a short period. The subsection contemplates that the magistrate must turn his mind to the precise period the warrant should have validity. This is an important safeguard to the citizen. It is one of the conditions upon which the validity of the warrant depends: compare George v Rockett (1990) 170 CLR 104 at 110. Indeed it was accepted by the respondents that a failure to comply with the subsection would lead to invalidity. This concession was rightly made. 47 During the course of the hearing Dr Freeman indicated that if he was successful in his challenge to the validity of the search warrant, he would not press for an order that the medicare assignment forms be returned to him. Most, but not all, authorities favour the view that illegally seized items should not be returned if there are criminal proceedings pending in which the items may be used as evidence: Ghani v Jones [1970] 1 QB 693; R v Tillett; Ex parte Newton (1969) 14 FLR 101; Parker v Churchill (1985) 63 ALR 326; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393. The appropriate order to make is that the medicare assignment forms be delivered to the Office of Public Prosecutions (Victoria) until the charges that have been laid against Dr Freeman are disposed of. Whether or not the forms, having been illegally seized, can be tendered in evidence is a matter that must be determined by the criminal courts of Victoria. Thereafter the medicare assignment forms will be returned to him. 48 Accordingly, the formal orders I will make are as follows: 1. The decision of the third Respondent made on 12 November 1996 to issue the search warrant purportedly pursuant to s 8Y of the Health Insurance Commission Act 1973 (Cth) authorising the second respondent to enter and search the Flemington Police station be quashed. 2. The 168 Medicare Assignment forms seized by the Victoria Police on 31 October 1994 at the premises of the Applicant be delivered into the custody of the Office of Public Prosecutions (Victoria) to be used in such a manner as may be permitted by law in connection with the prosecution of the Applicant for offences under the Health Insurance Commission Act 1973 (Cth) provided that an authorised officer of the Office of Public Prosecutions (Victoria) undertakes to return the said forms to the Applicant upon the conclusion of the prosecutions and any appeals therefrom. 3. The Applicant's costs of the application be paid by the first Respondent. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein J. Associate: Dated: 8 February 2000 Counsel for the Applicant: Ms L Lieder QC Mr H Aizen Solicitor for the Applicant: Valos & Associates Counsel for the Respondents: Mr K Bell QC Mr P Hanks Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 2 and 3 August 1999 Date of Judgment: 8 February 2000