Reported Decision : 77 NSWLR 648 New South Wales Supreme Court CITATION : Regina (C'Wealth) v Baladjam & Ors [No 39] [2008] NSWSC 1459 HEARING DATE(S) : 07/08/08 JUDGMENT DATE : 26 August 2008 JURISDICTION : Criminal JUDGMENT OF : Whealy J at 1 DECISION : I decline to order that the warrants in Exhibit "A" be quashed. Secondly, the Notice of Motion of 4 July 2008 be dismissed. CATCHWORDS : CRIMINAL LAW - Search Warrants - Requirements for validity of search warrants - The Australian Security Intelligence Organisation Act 1979 (ASIO Act) - Validity of warrants issued by ASIO - Failure to specify offence or offences - Failure to specify the precise nature of the security matter the subject of the warrants - Whether ASIO warrants are invalid. Australian Security Intelligence Organisation Act 1979 ss 17, 18, 25 and 25A LEGISLATION CITED : Crimes Act 1914 (Cth) Search Warrant Act 1985 Carbone v National Crime Authority (1994) 52 FCR 516 at 521 Entick V Carrington (176) 2 Wils. KB 275 George v Rockett (1990) 170 CLR 104 at 110 Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at (64) Ibbotson v Chaney (1998) 19 WAR 404 MacGibbon v Warner (1997) 98 A Crim R 450 at 453 per Priestley JA CASES CITED : New South Wales v Corbett [2007] 230 CLR 606, 630 (at 95) per Callinan and Crennan JJ Ousley v The Queen 192 CLR 69 at 111 per McHugh J Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at 381 R v Baladjam [No 24] 11 June 2008 R v RIC Ex Parter Rossminister Trimboli v Onley [No 1] (1981) 56 FLR 304 per Powell J Way Out West Adult Shop Pty Ltd v Kraus [2008] NSWSC at para 25 Regina (C'Wealth) v Omar BALADJAM [No 39] Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohamed Ali ELOMAR PARTIES : Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Mohammed Omar JAMAL Regina (C'Wealth) v Mirsad MULAHALILOVIC Regina (C'Wealth) v Khaled SHARROUF Regina (C'Wealth) v Mazen TOUMA FILE NUMBER(S) : SC 2007/2397001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001 G. Bellew SC; C. Donnell; Ms S McNaughton - Crown Mr N Williams SC - ASIO M Buscombe SC; R Pontello - Accused Baladjam C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho D Dalton SC; E Ozen - Accused Elomar COUNSEL : Ms D Yehia; Ms S Beckett - Accused Hasan G Scragg; D Carroll - Accused Jamal G Turnbull SC; A Djemal - Accused Mulahalilovic W Brewer; M Pickin - Accused Sharrouf S Hanley; - Accused Touma Commonwealth DPP Australian Government Solicitors Greg Walsh & Co - Accused Baladjam Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho SOLICITORS : Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Michael Doughty Solicitor - Accused Jamal Matouk Joyner Lawyers - Accused Sharrouf Lawyers Corporation Ltd - Accused Mulahalilovic Burke & Elphick Lawyers - Accused Touma - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST WHEALY J PARRAMATTA: TUESDAY 26 August 2008 2007/2397001 - Regina v Omar BALADJAM [No 39] 2007/2395001 - Regina v Khaled CHEIKHO 2007/2398001 - Regina v Moustafa CHEIKHO 2007/2399001 - Regina v Mohamed Ali ELOMAR 2007/2400001 - Regina v Abdul Rakib HASAN 2007/2452001 - Regina v Mohammed Omar JAMAL 2007/2454001 - Regina v Mirsad MULAHALILOVIC 2007/2396001 - Regina v Khaled SHARROUF 2007/2455001 - Regina v Mazen TOUMA JUDGMENT - Application to set aside ASIO search warrants – ASIO Act 1979 s 25 – alleged failure to comply with requirements of Act – general warrants 1 HIS HONOUR: By notice of motion dated 4 July 2008 Khaled Cheikho had sought to exclude material obtained as a result of the execution of certain warrants. These were warrants issued pursuant to s 25 Australian Security Intelligence Organisation Act 1979 (ASIO Act). The motion sought exclusion based on an irregularity, namely a failure to specify in the warrants "the relevant matters that were important in relation to security". The arguments on behalf of Khaled Cheikho were presented by Mr Peter Lange of counsel. The Crown, represented by Mr Geoff Bellew SC, opposed the making of the order sought in the notice of motion and, for present purposes, opposed the primary order that the warrants themselves be quashed, it being submitted by the defence that they were invalid for the same reason as stated in the notice of motion. Arguments concerning the validity of the warrants have, by agreement, replaced the s 138 application for the time being. The latter aspect of the application must now await the outcome of the primary submission. The Warrants 2 Three warrants were tendered in evidence. They became Exhibit "A" on the voir dire. There is one aspect of them that is confidential, and I will not trespass upon that aspect in this judgment. 3 For all intents and purposes, the warrants are identical, although they are addressed to separate premises in Condell Park, Wiley Park and Lakemba respectively. These were premises occupied by Mr Elomar, Khaled Sharrouf and Hasan. 4 It will be sufficient to set out certain details from the first warrant in Exhibit "A". As I have said, the terminology in the remaining two warrants is virtually identical. 5 The first warrant identifies the premises to be searched 1 Gallipoli Street, Condell Park NSW 2200. It also identifies Mohamed Ali Elomar as the occupant. The warrant continues: "2. I am satisfied that there are reasonable grounds for believing that access by the Organisation to records or other things on the subject premises, including vehicles, will substantially assist the collection of intelligence in accordance with this Act in respect of a matter (the security matter) that is important in relation to security. 3. Pursuant to s 25(4), I hereby authorise the organisation to: (a) enter the subject premises listed above; (b) search those premises for the purpose of finding records or other things relevant to the security matter and, for that purpose, opening any safe, box, drawer, parcel, envelope or any other container in which there is reasonable cause to believe that any such records or other things may be found. (c) inspect or otherwise examine any records or any other things found in the premises, and to make copies or transcripts of any record so found that appears to be relevant to the collection of intelligence by the organisation in accordance with the Act ; (d) remove and retain for such time as is reasonable any record or other thing so found for purposes of inspecting or examining it, and, in the case of a record, for the purpose of making copies or transcripts of it, in accordance with the warrant; (e) do anything reasonably necessary to conceal the fact that anything has been done under the warrant; (f) do any other thing reasonably incidental to the above." 6 The warrant further states the Attorney-General's satisfaction that there is reasonable cause to believe that data "relevant to the security matter" may be accessible by using a computer or other electronic equipment found on the premises. The Organisation is authorised, pursuant to subs 25(5) to use any computer or other electronic equipment found in the premises for the purpose of obtaining access to any such data relevant to "the security matter". It also authorises the use of any computer or other electronic equipment to inspect and examine any data to which access has been obtained, and to convert any such data that appears to be relevant to the collection of intelligence by the Organisation in accordance with the Act into documentary form and to remove any such document. The warrant authorises the Organisation to do any other thing reasonably incidental to any of these matters. 7 The use of "any force" that is necessary to do the things specified in paragraphs 3, 5 and 6 of the warrant is specifically authorised by paragraph 7. Entry under the warrant is authorised to be made "at any time of the day or night". The warrant is to remain in force for the period of 28 days from its date of issue. The warrant is signed under the hand of the then Attorney General. The Legislation 8 The ASIO Act 1979 is a long and complex piece of legislation. I will, however, refer to certain sections to enable an understanding of its framework. 9 Section 17 is an important section. It sets out the functions of ASIO. It is in the following terms: "17 Functions of Organisation (1) The functions of the Organisation are: (a) to obtain, correlate and evaluate intelligence relevant to security; (b) for purposes relevant to security and not otherwise, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes; (c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities. (ca) to furnish security assessments to a State or an authority of a State in accordance with paragraph 40(1)(b); (d) to advise Ministers, authorities of the Commonwealth and such other persons as the Minister, by notice in writing given to the Director-General, determines on matters relating to protective security; and (e) to obtain within Australia foreign intelligence pursuant to section 27A or 27B of this Act or section 11A, 11B or 11C of the Telecommunications (Interception and Access) Act 1979 , and to communicate any such intelligence in accordance with this Act or the Telecommunications (Interception and Access) Act 1979 . (2) It is not a function of the Organisation to carry out or enforce measures for security within an authority of the Commonwealth." 10 Section 18 deals with the power to communicate intelligence on behalf of ASIO. (It has been discussed by me in an earlier decision (see R v Baladjam [No 24]. The Act provides for special powers to be conferred on ASIO in Division 2. These extend to, and include the power to issue search warrants under s 25, and computer access warrants under s 25A. The power to use listening devices is contained in s 26, and lawful tracking devices are permitted under ss 26A, 26B and 26C. There are other powers conferred on the Organisation in the same Division, but I need not presently specify these for the purposes of this decision. 11 Section 31 requires the Director-General to destroy records obtained under a warrant where there is satisfaction that the record or copy is not required for the purpose of the performance of functions or the exercise of powers under the ASIO Act. Section 34 requires the Director-General to furnish to the Minister in respect of each warrant issued under the Division, a report in writing on the extent to which the action taken under the warrant has assisted the Organisation in carrying out its functions. 12 Division 3 contains special powers relating to terrorism offences, including the issue of questioning and detention warrants (I will make no comment on these detailed provisions as they are not directly relevant to the present issue). 13 Part IV of the Act provides for the furnishing by ASIO of security assessments. There are also provisions for the review of security assessments. Secrecy provisions are enshrined in s 81. Finally, reference may be made to Part V, which deals with the employment of ASIO staff issues relating to the identity of employees and certain matters relating to offences (see s 93). 14 I will return now to the section dealing with search warrants. Section 25 is in the following terms: " 25. Search warrants Issue of search warrant (1) If the Director-General requests the Minister to do so, and the Minister is satisfied as mentioned in subsection (2), the Minister may issue a warrant in accordance with this section. Test for issue of warrant (2) The Minister is only to issue the warrant if he or she is satisfied that there are reasonable grounds for believing that access by the Organisation to records or other things on particular premises (the subject premises ) will substantially assist the collection of intelligence in accordance with this Act in respect of a matter (the security matter ) that is important in relation to security. Authorisation in warrant (3) The warrant must be signed by the Minister and must authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the subject premises, which must also be specified in the warrant. Things that may be specified in warrant (4) The things that may be specified are any of the following that the Minister considers appropriate in the circumstances: (a) entering the subject premises; (b) searching the subject premises for the purpose of finding records or other things relevant to the security matter and, for that purpose, opening any safe, box, drawer, parcel, envelope or other container in which there is reasonable cause to believe that any such records or other things may be found; (c) inspecting or otherwise examining any records or other things so found, and making copies or transcripts of any such record or other thing that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act; (d) removing and retaining any record or other thing so found, for the purposes of: (i) inspecting or examining it; and (ii) in the case of a record-making copies or transcripts of it, in accordance with the warrant; (e) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant; (f) any other thing reasonably incidental to any of the above. Personal searches may be specified (4A) The Minister may also specify any of the following things if he or she considers it appropriate in the circumstances: (a) conducting an ordinary search or a frisk search of a person if: (i) the person is at or near the subject premises when the warrant is executed; and (ii) there is reasonable cause to believe that the person has on his or her person records or other things relevant to the security matter; (b) inspecting or otherwise examining any records or other things so found, and making copies or transcripts of any such record or other thing that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act; (c) removing and retaining any record or other thing so found, for the purposes of: (i) inspecting or examining it; and (ii) in the case of a record-making copies or transcripts of it, in accordance with the warrant. Certain personal searches not authorised (4B) Subsection (4A) does not authorise a strip search or a search of a person's body cavities. Time period for retaining records and other things (4C) A record or other thing retained as mentioned in paragraph (4)(d) or (4A)(c) may be retained: (a) if returning the record or thing would be prejudicial to security--only until returning the record http://www.austlii.edu.au/au/legis/cth/consol_act/asioa1979472/s22.html - record or thing would no longer be prejudicial to security; and (b) otherwise-for only such time as is reasonable. Other things that may be specified (5) The Minister may also specify any of the following things if he or she considers it appropriate in the circumstances: (a) where there is reasonable cause to believe that data relevant to the security matter may be accessible by using a computer or other electronic equipment, or a data storage device, brought to or found on the subject premises--using the computer, equipment or device for the purpose of obtaining access to any such data and, if necessary to achieve that purpose, adding, deleting or altering other data in the computer, equipment or device; (b) using the computer, equipment or device to do any of the following: (i) inspecting and examining any data to which access has been obtained; (ii) converting any data to which access has been obtained, that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act, into documentary form and removing any such document; (iii) copying any data to which access has been obtained, that appears to be relevant to the collection of intelligence by the Organisation in accordance with this Act, to any data storage device and removing the device; (c) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant; (d) any other thing reasonably incidental to any of the above. Certain acts not authorised (6) Subsection (5) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that interferes with, interrupts or obstructs the lawful use by other persons of a computer or other electronic equipment, or a data storage device, found on the subject premises, or that causes any loss or damage to other persons lawfully using the computer, equipment or device. Authorisation of entry measures (7) The warrant must: (a) authorise the use of any force that is necessary and reasonable to do the things specified in the warrant; and (b) state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night. Statement about warrant coming into force 8) The warrant may state that it comes into force on a specified day (after the day of issue) or when a specified event happens. The day must not begin nor the event happen more than 28 days after the end of the day on which the warrant is issued. When warrant comes into force (9) If the warrant includes such a statement, it comes into force at the beginning of the specified day or when the specified event happens. Otherwise, it comes into force when it is issued. Duration of warrant (10) The warrant must specify the period during which it is to be in force. The period must not be more than 90 days, although the Minister may revoke the warrant before the period has expired. Issue of further warrants not prevented (11) Subsection (10) does not prevent the issue of any further warrant." Submissions on behalf of Khaled Cheikho 15 The primary submission made by Mr Lange is that the warrants in question (Exhibit A) are nothing more than "general warrants". For that reason, if the Court accepts that they are general warrants and nothing more, they should be held to be invalid and must therefore be quashed. 16 Mr Lange points to the precise identity between the language of the warrants and the statute. He complains, however, in particular that the warrants do not in any way limit the object of the search. Secondly, they do not specify or identify the security matter, which justifies the issue of the warrant. They have the effect, counsel argued, of permitting the seizure of anything at all in the sole discretion of the executing officers. 17 In terms of legal principle, Mr Lange's submissions began by reiterating the common law's well-known historical aversion to general warrants. He referred to Entick v Carrington (1765) 2 Wils. KB 275. In rejecting the legality of general warrants, Lord Camden CJ stated (292): "This is the first instance of an attempt to prove a modern practice of a private office to make and execute warrants to enter a man's house, search for and take away all his books and papers in the first instance, to be law, which is not found in our books. It must have been the guilt or the poverty of those upon whom such warrants have been executed that deterred or hindered them from contending against the power of a Secretary of State and the Solicitor of the Treasury, or such warrants could never have passed for lawful till this time." 18 Mr Lange reminded the Court that the Entick principle that a person is entitled to be free from arbitrary search "was hard fought for in our constitutional history". (New South Wales v Corbett (2007) 230 CLR 606, 630 (at 95) per Callinan and Crennan JJ.) Mr Lange argued that there is a tension between the power to search a person's residence, and a person's right not to have property interfered with, or perhaps his or her right to privacy. This tension has led to the imposition of a requirement of particularity in respect of search warrants issued in aid of investigations (New South Wales v Corbett 632 at (104) per Callinan and Crennan JJ). 19 By way of analogy, Mr Lange took the Court to cases involving the predecessor to s 3E Crimes Act 1914, namely s 10 Crimes Act 1914 (repealed). This section conferred a power to execute search warrants. Although the provision did not specify that the warrant had to be particularised in any respect, judicial commentary was unanimous in declaring that a warrant issued pursuant to that legislation required specificity, both as to the offence investigated and the objects sought during the search. (Trimboli v Onley [No 1] (1981) 56 FLR 304 per Powell J.) 20 More recently, the Supreme Court of New South Wales has held that search warrants under the Search Warrant Act 1985, which do not expressly regulate the content of the warrant, are also subject to the requirement of particularity (Douglas v Blackler (2001) NSWSC 901 per Taylor AJ). 21 Mr Lange's submissions embraced other areas where search warrants had been involved. They extended, for example, to Royal Commissions (MacGibbon v Warner (1997) 98 A Crim R 450 at 453 per Priestley JA. In particular, reliance was placed upon the following passage in Priestley JA's decision: "General warrants have been condemned by the courts for centuries. They have been regarded as instruments, which facilitate the abuse of executive power. They are invalid at common law. It is true that it is open to State Parliament to pass laws authorising the use of such warrants, but courts will not read legislation as taking such a drastic step unless it is very clear in its meaning and effect: Indeed, it has been said in recent cases in the High Court similar to the present that the intention of Parliament to change the common law must be made 'unmistakably clear' ( Coco (1994) 179 CLR 427 at 437) or expressed with 'irresistible clearness' ( Bropho v WA (1990) 171 CLR 1 at 19." 22 Mr Lange argued that there was no limitation in the warrants under consideration in the present application in respect of the reason for the search, nor, perhaps more importantly, the subject of the search. Counsel repeated that the manner in which the search was to be conducted was left entirely to the discretion of those executing the warrant. Mr Lange referred to a comment critical of this type of situation appearing in the judgment of Fullerton J in Way Out West Adult Shop Pty Limited v Kraus (2008) NSWSC 87 at para 25. Her Honour was there concerned with a possible ambiguity in relation to the description of premises in a police search warrant issued in connection with allegations of serious offences relating to the possession of pornographic films. Her Honour (commenting on a passage in Hill J's decision in Carbone v National Crime Authority (1994) 52 FCR 516 at 521), said: "While his Honour was referring to ambiguity in the description given to documents to which a search warrant might be directed, the same consequences will obtain where ambiguity or imprecision in the description of premises to be entered and searched...is of such a kind that the person to whom the warrant is directed either cannot resolve the ambiguity at all or cannot do so without recourse to his or her subjective or esoteric knowledge of the investigation, the person suspected of having committed the offence to which the warrant refers, or to other circumstances surrounding the issue of the warrant." 23 Finally, Mr Lange submitted that the fundamental departure from the requirements of the common law was such that the subject warrant should be quashed. Mr Lange accepted that the legislature might, in theory, justify the issue of warrants in broad terms, but argued that there was nothing in s 25 of the ASIO Act that suggested this was the intention of the legislature. Submissions on behalf of the Crown 24 The Crown did not put in issue the "ancient principles" referred to by Mr Lange in his reference to Entick's case. Nor did the Crown submit that such principles did not have an application in contemporary circumstances relating to police investigation warrants. Rather, the Crown submitted that the issue here was whether the statutory conditions, which governed the issue of the warrants, had been complied with. The Crown argued that the legislation precisely prescribed the test for the issue of the warrants. It precisely prescribed the form of authorisation required and, more importantly, prescribed the very things that may be specified in the warrant. 25 Against that background, the Crown examined the form of the warrants in question. It was submitted that each had been drafted specifically to conform with the provisions of s 25 of the ASIO Act. Importantly, there was nothing within the terms of that section which required that the warrants be issued with respect to the commission or suspected commission of any criminal offence. (Mr Lange unequivocally accepted this proposition and did not argue to the contrary.) 26 The Crown drew particular attention to the width and nature of ASIO's functions as set out in s 17 of the ASIO Act. The Crown did not accept that the object of the search was limitless, or that it was left to the discretion of the executing agents to decide the extent of the warrant. Mr Bellew argued that the legislation did not require the specification of the security matter. Secondly, it was sufficient in those circumstances for the warrant to describe the search of the premises in terms of para 3(b) of the warrant. The reach of the power to inspect, examine and make copies of records was similarly limited when paras 3(b) and (c) were properly construed. The Crown pointed especially to the provisions of s 25(4)(e), namely that the Minister was entitled to specify in the warrant that "anything reasonably necessary to conceal the fact that anything had been done under the warrant". In fact, this had been specified in para 3(e) of the warrant and again, in relation to computer records, in 5(c) of the warrant. 27 The Crown referred to McHugh J's decision in Ousley v The Queen, 192 CLR 69 at 111 where his Honour said: "But given the history of the common law on this subject matter, it seems safe to proceed on the assumption that when a legislature specifies what must appear in a warrant, it intends its statement to be exhaustive of the matters that the warrant must disclose." 28 The Crown also referred me to the observations of Gummow J in the same case where his Honour said: "Lord Wilberforce pointed out in Inland Revenue Commissioners v Rossminster Limited that any inquiry into the form of search warrants at common law was of limited assistance where the form of the warrants in question is prescribed by statute. The matter is one of statutory interpretation, giving proper weight to the precept that a legislative intention to interfere with fundamental rights by the Commission of what otherwise would be tortious or criminal acts must be clearly manifested by unmistakable and unambiguous language." 29 (Reliance was also placed upon remarks to similar effect by Murray J in Ibbotson v Chaney (1998) 19 WAR 404.) 30 Mr Bellew repeated, when examining earlier cases relied on by Mr Lange, that the legislation in question here does not require the stipulation of an offence or offences. Nor does it require that an occupier's notice be served. In those regards, it can be contrasted with s 3E of the Crimes Act (Cth) and its predecessor. It is proper to infer, counsel argued, that these omissions represent a deliberate intention on the part of the Parliament that such procedures, even by analogy, would not be required. Such a conclusion also emanated from the general nature of the ASIO Act itself and its concern with the gathering of intelligence, often in covert circumstances, rather than with the investigation of criminal behaviour. 31 The Crown took me to various passages in the speeches of their Lordships in R v RIC Ex Parté Rossminster at 997, especially per Lord Wilberforce; at 1008 per Lord Diplock, and 1005 per Viscount Dilhorne. Mr Lange's reply to this particular analysis was that the legislation under consideration there differed markedly from s 25 of the ASIO Act. 32 Finally, Mr Bellew referred to a number of "safeguard" provisions in the ASIO Act. These included ss 31, 32 and 34. In addition, there were the function sections in s 17, the specific limitations in s 24 upon those who are able to exercise authority under the warrants, and the provisions of ss 25(2) and (3). The request for the issue of a warrant must specify the facts and other grounds upon which the Director-General considers it necessary that the warrant be issued. (S 28.) The Crown argued that these matters provide a regime of safeguards which effectively act as a counter balance to the absence of a legislative requirement for specificity to the extent that this was asserted on behalf of Khaled Cheikho. 33 The Crown submitted that what was required to be disclosed on the face of the statutory warrants necessarily depended upon the terms of the statute which governed its issue. The warrants here had been drafted precisely in conformity with the terms of s 25. There was nothing in that section of the ASIO Act which required the two matters of particularisation submitted on behalf of the accused. And, in the light of the terms of the statute, no such requirement was imposed by the general law. The Crown asked the Court to dismiss the application. Resolution of the issues 34 The question to be decided is: Are the search warrants valid? 35 If the answer to this were to be determined purely by the application of common law principles relating to the validity of a police search warrant, there would undoubtedly be a legitimate view that the warrants in question were flawed. There is, for example, no offence stated in the warrants. Secondly, the objects to be searched for are not related to the commission of a criminal offence. Thirdly, it appears to be the situation that the person asked to carry out the search would not know from the contents of the warrants the proper boundaries of the search to be undertaken in answer to the dictates of the warrants. 36 In a situation involving legislation not dissimilar to s 10 of the Crimes Act 1914 (Cth) the High Court, in a well-known passage in George v Rockett (1990) 170 CLR 104 at 110) addressed the impact of the will of Parliament on common law principles as follows: - "A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, a History of English Law , vol 10 (1938), pp. 668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants, at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v Money (30); Entick v Carrington (31). Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick (32). In modern times the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure (1986), pp 1-2. State and Commonwealth statutes have made many exceptions to the common law position, and s 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation." 37 The legislation in question, of course, dealt with conventional search warrants facilitating the gathering of evidence for use in criminal proceedings. 38 Here, as well, the issue does not fall to be decided by the application of common law principles. As Gummow J observed in Ousley v R (at 545) an inquiry into the form of search warrants at common law is really of limited assistance in a situation where the form of the warrants is prescribed by the language of a statute. The matter becomes one of statutory interpretation, giving proper weight to the need to construe the language of the section strictly. As Murray J observed in Ibbotson v Chaney (at 404): "At common law, general warrants which were judged to be expressed with insufficient particularity were held to be invalid and devoid of legal effect. But as I have mentioned, when a warrant is authorised by statute, that general proposition is replaced by a process of statutory construction. The validity of a warrant will be measured by whether it mirrors the ambit of statutory power. If it may have a wider operation, the Courts may say it is struck down because it is expressed too generally, but in truth the conclusion thus expressed is that the warrant is invalid because on its face it might authorise an interference with private rights which is outside the ambit of the statutory power. Whilst the Courts will interpret the terms in which that power is granted strictly, if the conclusion mentioned above is not reached, the warrant will be held to be valid no matter how large the power conferred or how unpalatable it may be thought to be. It is no part of the Court's function to strike down a statutory instrument which may not be held to be invalid upon the ground discussed above so as to frustrate or impede the carrying out of the object and scheme of the statute." 39 (Murray J was in dissent on the ultimate decision. His views, however, were generally the same as the other members of the Court.) 40 In the present matter, the issue is whether the form of the warrants accords with the statute. The correct approach may also be expressed by asking whether the statute permits the warrants to be in their present form. The contemporary approach to statutory construction has been stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at 381 per McHugh, Gummow, Kirby and Hayne JJ. The primary purpose of statutory construction is "to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute". There is nothing in the nature of search and seizure provisions which calls for a departure from this general principle: See Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at (64). Indeed, in Hart's case, the Full Court commented that there is no requirement that the Court approach the task of statutory construction "armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power". 41 What then is the general focus of the ASIO Act 1979? What does it tell us about the ambit and scope of s 25 of the Act? The first important matter to be noted about s 25 itself is that it is not, in terms, concerned with the investigation of criminal behaviour. It is concerned with the gathering of intelligence related to security. The test for the issue of the warrant is highly specific. The Minister is only to issue the warrant if he or she is satisfied that there are reasonable grounds for believing that access by ASIO to certain material on the subject premises "will substantially assist the collection of intelligence in accordance with this Act in respect of a matter (the security matter) that is important in relation to security". The importance of the nature of this test is that it reinforces that the search is designed to assist the collection of intelligence in accordance with the ASIO Act in respect of a particular matter that is important in relation to security. It has nothing to do with the collection of evidence for a criminal investigation or prosecution. Of course, ultimately material collected during the search may become the evidence, or part of the evidence, in a criminal trial. But the warrant is not issued with that purpose in mind. It can only be issued, as the section makes plain, where the Minister is satisfied there are reasonable grounds for believing that material will substantially assist the collection of intelligence in respect of a matter that is important in relation to security. 42 "Intelligence" is not defined in the Act. However, the broad scope and notion of the term may be well understood by reference to the functions of the organisation as expressed in s 17 and the definition of "security" appearing in s 4. "Security" means: "(a) the protection of, and of the people of, the Commonwealth and the several states and territories from: (i) espionage (ii) sabotage (iii) politically motivated violence (iv) promotion of communal violence (v) attacks on Australia's defence system; or (vi) acts of foreign interference; whether direct from, or committed within, Australia or not; and (b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a)." 43 "Politically motivated violence" is defined in s 4 as follows: "(a) acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or (b) acts that: (i) involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and (ii) are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory; or (ba) acts that are terrorism offences; or (c) acts that are offences punishable under the Crimes (Foreign Incursions and Recruitment) Act 1978, the Crimes (Hostages) Act 1989 or Division 1 of Part 2 or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or (d) acts that: (i) are offences punishable under the Crimes (Internationally protected persons) Act 1976; or (ii) threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director-General." 44 "Promotion of communal violence" means activities that are directed to promoting violence between different groups of persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth. 45 "'Acts of foreign interference' means activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in acts of collaboration with, a foreign power, being activities that: (a) are clandestine or deceptive and: (i) are carried on for intelligence purposes; (ii) are carried on for the purpose of affecting political or governmental processes; or (iii) are otherwise detrimental to the interests of Australia; or (b) involve a threat to any person. 46 "Attacks on Australia's defence system' means activities that are intended to, and are likely to, obstruct, hinder or interfere with the performance by the defence force of its functions or with the carrying out of other activities by or for the Commonwealth for the purpose of the defence or safety of the Commonwealth." 47 Thus, it will be seen that the definition of "security" is very wide indeed. The notion of gathering or collecting intelligence in accordance with the Act "in respect of a matter that is important in relation to security" is accordingly very wide. By way of contrast, the range of possible dissemination of intelligence is very narrow (see s 18(1) and (2); and especially s 18(3). It is also of importance to note that the issue of a search warrant under s 25 can only be contemplated where the Director-General of Security requests the Attorney-General to do so. The position and importance of the role played by the Director-General can be seen from ss 7 and 8. These sections emphasise that the Director-General is to be above ministerial or political manipulation. This can also be seen from ss 20 and 21. Section 20 requires the Director-General to take all reasonable steps to ensure that the work of the Organisation is limited to what is necessary for the purposes of the discharge of its functions, and to keep the Organisation free from influences or considerations irrelevant to its functions. Section 21 requires the Director-General to consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping him or her informed on matters relating to security. 48 Although it is the Director-General (or his authorised delegate) who may request the issue of a search warrant, it is only the Attorney-General who may issue the warrant. Such a requirement may be contrasted with the traditional search warrant legislation where warrants are to be issued by Magistrates, Judges or other functionaries. Here it is only the first legal officer of the Commonwealth to whom falls the responsibility of deciding whether the test for the issue of a warrant contained in s 25 has been made good. The test for the issue of the warrant enshrines the need for the Minister's satisfaction that there are reasonable grounds for believing that access to the records or other things on the subject premises will "substantially assist" the collection of intelligence. The test requires, however, that this satisfaction focus on "a matter (the security matter) that is important in relation to security". The very language suggests not merely the width of the section, and the importance and high standard of the test, but further that the security matter itself may well be a matter, if revealed, that might pose a threat in relation to security, within the broad meaning of s 4 of the definition. 49 The next matter to note is that sub-ss (3) and (4) of s 25, contain first, the statutory command as to what is to appear in the warrant, and, secondly, those matters then that may consequently be specified in the warrant. The "command", as I have called it, is in these terms: "(3) The warrant must be signed by the Minister and must authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the subject premises, which must also be specified in the warrant." 50 By way of contrast, subs (4) confers on the Minister a discretion to select from the things that may be specified in the section, those that he considers "appropriate in the circumstances". There then follows the list of matters set out earlier in this decision. Importantly, there is no requirement to specify in precise terminology the nature of "the security matter that is important in relation to security" that has led to the issue of the warrant. Sub-section 4(e) is also important because it gives the Minister the power to specify in the warrant "any thing reasonably necessary to conceal the fact that any thing has been done under the warrant". The ability to specify this matter lends support to the proposition that there is no requirement to specify in the warrant itself the precise nature of the security matter that has led to the issue of the warrant, and in connection with the collection of intelligence, is necessary to substantially assist security. 51 Sections 4(a) and 5 of s 25 contain a list of other "things" that may be specified in a warrant. 52 Sub-sections (7), (8), (9) and (10) deal with the authorisation of entry, the commencement of a warrant period, and its duration. 53 Other sections of the Act provide guidance to the scheme of the Act as a whole. They also provide assistance in understanding the matters to be specified when a s 25 search warrant is issued. I have already referred to s 18 which is a very important section. Other sections may be mentioned. Section 25A is based largely on the s 25 scheme. It deals, however, with computer access warrants. The statutory test for issue is identical, as are the list of things that must or may be specified in warrant. 54 Section 26 enables the Minister to issue a Listening Device warrant. The language of s 26(3),(4) and (5) does not suggest that the "intelligence relevant to security" mentioned there needs to be disclosed in the warrant. Moreover, the statutory test for the issue of a Listening Device warrant is at a lower threshold than that provided for in s 25(2). The same comments may be made in relation to tracking devices for persons or target objects (ss 26B and 26C), and the issue of warrants for inspection of postal or delivery service articles (ss 27 and 27AA). 55 It may be inferred that the primary reason why ss 25 and 25A pose a threshold test that requires satisfaction that there are reasonable grounds for believing that access to records on the subject premises will substantially assist the collection of intelligence in respect of "a matter (the security matter) that is important in relation to security" is that the warrant does reflect a considerable invasion of property and privacy. In addition, the "subject premises" may not be the home or office of a person who is suspected of committing, for example, a terrorist offence. But there must be, before issue, reasonable grounds for belief that records of the relevant kind are located there. The test for issue is stringent, but, by way of contrast, the section does not require that the "security matter" be precisely identified in the warrant. 56 On the other hand, the Listening Device warrants, to take an example by way of comparison, require only that the Minister, before issue, be satisfied that the warrant "is likely to assist the organisation by carrying out its functions of obtaining intelligence relevant to security". Of course, the Minister must also be satisfied in terms of the section that the person against whom the warrant is directed is, for example, "engaged in …activities prejudicial to security". 57 Listening Device warrants also reflect a significant invasion of privacy, but here, as well, there is no requirement that the matter specified in the warrant must identify the precise nature of the activities prejudicial to security. Nor is there a requirement to specify in the warrant the nature of the intelligence to be obtained, or the identification of the security matter to be addressed by the likely range of intelligence sought to be captured by the listening device. 58 Finally, mention may be made of special warrants issued in an emergency situation (s 29), the obligation to destroy certain records obtained under a warrant (s 31) and the requirement that the Director-General furnish to the Minister in respect of each warrant issued under the Division a report in writing on the extent to which the action taken under the warrant has assisted the Organisation in carrying out its functions (s 34). (The last section was referred to in argument as "a safeguard". It clearly has that role to play, but it will be seen that it has a broader role in enabling the Minister to assess the utility and functionality of each warrant he has issued, having in mind no doubt the stringent test he has applied, as required by the statute, in determining to issue the warrant or warrants in the first place.) 59 The foregoing analysis demonstrates that the ASIO Act represents a very special statutory framework. Section 25 of the Act contrasts markedly with statutes enabling search warrants to issue for the purposes of investigation into criminal offences. The legislation as a whole highlights the very different nature of a search warrant issued for intelligence gathering purposes, related as it is, to the protection of a substantial aspect of national security. 60 It is now necessary to turn to the warrant itself. The particular warrant relates to premises at Condell Park. The purpose of this part of the analysis is to examine the complaints made by Mr Lange and to determine whether those complaints justify a conclusion that the warrant has been issued otherwise than in accordance with the statute. The two complaints are themselves quite specific. First, the "security matter" is not defined or specified in the search warrant. Secondly, and perhaps more importantly, there was no limitation in the warrant going to the subject matter of the search. (Carbone v National Crime Authority (1994) FCR 516 at 522F, 524G). 61 As to the first complaint, it is clear from the form of the warrant that the Minister has stated his satisfaction that there are reasonable grounds for his satisfaction that the warrant should issue in terms of s 25. The Minister identifies a matter "a security matter" that is important in relation to security, but he does not say what it is. In my opinion, the legislation does not oblige him to reveal the precise nature of the security matter. This, for reasons I will explain, is critical to the rejection of both Mr Lange's arguments. 62 First, the precise nature of the security matter is not one of the "things" that either "must" or "may" be specified pursuant to the terms of sub-ss (3), (4), (4)(a) or (5). Secondly, there are clear reasons, related to the protection of national security, why the precise nature of the security matter should not be revealed on the face of the warrant. It is obvious that such a precise statement may, in many cases, be injurious or even destructive of national security. At the very least, it would or could thwart or hinder the effective gathering of intelligence. (See again, the provisions of s 18 of the ASIO Act). Further, the fact that the Minister may specify matters to conceal the fact that anything has been done under the warrant, lends support to the proposition that the security matter itself does not have to be revealed on the face of the warrant. Finally, having regard to the terminology of s 25 and the purposes of the entire legislation represented by the ASIO Act 1979, such a result or view of the section is both permitted and dictated. This interpretation is perfectly understandable, and completely in conformity with every aspect of the legislation. The consequence of this finding has ramifications for Mr Lange's second argument. I turn to it now. 63 Once it is accepted that the security matter does not have to be precisely specified in the warrant, it must follow that the description of the objects that are to be searched for, as being records et cetera "relevant to the security matter", is permissible and does not represent a description invalidating the warrant. That this is permissible appears also from the terminology of ss 4(b) and 5(a). This interpretation is aided, not hindered, by the text of s 25A dealing with computer access warrants. Mr Lange's argument pointed to different terminology where it appears in s 26(3)(b). Counsel argued that the change in terminology supported his argument generally. The particular provision in s 26(3)(b) enables the Minister to issue a listening device warrant where, inter alia, the Minister is satisfied that the use by ASIO of a listening device would be, or be likely to, assist ASIO "in carrying out its function of obtaining intelligence relevant to security". While it is true that this phrase is more general than that appearing in s 25, I do not consider that it takes Mr Lange's argument any further. The more specific reference in s 25 is, nevertheless, a general reference. It does not require a precise statement in the warrant beyond that which has been used here. 64 The consequence of the view I have formed in relation to Mr Lange's first argument means, however, that the objects of the search are in fact specified in the warrant. While it is true that the specification is fixed on "the security matter" which itself is not precisely identified, nevertheless the records (and other items) which are to be searched for are precisely identified by reference to "the security matter". If this be the intention of legislature, as I perceive it to be, the consequences asserted by Mr Lange are in fact inconsequential for validity purposes. 65 Mr Lange has argued that the search is to be conducted in accordance with a completely unfettered discretion on the part of the searching officer. Is this so? I do not consider it is. First, as I have said, the objects to be searched for are specifically related to "the security matter" mentioned in that part of the warrant where the Minister states his satisfaction. The phrase is carried through to encompass the objects of the search in the body of the warrant. Secondly, the Act itself contains a very specific authority-giving section, whereby only those officers, employees and other persons nominated and approved by the Director-General may exercise, on ASIO's behalf, the authority conferred by a warrant or warrants (s 24(1) and (2).) The latter sub-section states: "(2) The authority conferred by a relevant warrant or relevant device recovery provision may be exercised on behalf of the Organisation only by the Director-General or an officer, employee or other person approved under subs (1)." 66 This section not only limits the identity of those who may be chosen to execute a warrant. It highlights the fact that they are handpicked by the Director-General or his delegate for that precise purpose. It is to be assumed that those persons who are authorised to conduct the search will, subject to the prohibitions in s 18 (relating to the unlawful communication of intelligence), be well aware of the precise nature of the security matter that is at the heart of the warrant. 67 It is true, however, that the occupier of the premises will not, from the face of the warrant, know the nature of the security matter. It is true that a Court exercising a supervisory role over the manner of the search will not know the precise nature of the security matter, until he or she is informed by appropriate confidential means of its nature. These consequences appear to me to be part and parcel of the intention of the legislature. I consider that they are fairly spelt out from the terms of s 25 in the light of the legislation as a whole. Matters of the kind relied on by Mr Lange would have been, at the time of Entick's case, sufficient to bring down a warrant at common law. But 250 years have passed since that time, and it must now be accepted that, in appropriate circumstances, Parliament has the power to curtail the content of warrants where it considers that it is appropriate to do so. In my view, the intention of Parliament, as appearing in the ASIO Act 1979, permits the warrant to stand in the form appearing in Exhibit "A". The contents of the warrant precisely accord with the terms of s 25 of the ASIO Act 1979. The legislature, taken as a whole, permits that situation without raising the prospect of invalidity. 68 In these circumstances, I decline to order that the warrants in Exhibit "A" be quashed. I also order that the notice of motion 4 July 2008 be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.