The journalist, the warrant and the gatekeeper: is it time for more oversight?

Recent police raids on the home of a News Corp journalist and the ABC headquarters have given renewed attention to the search and seizure powers of Australian law enforcement agencies.

Both raids were part of investigations into the publishing of material alleged to be classified, contrary to the provisions of the Crimes Act 1914 (Cth). On one level, the raids are the ordinary exercise of powers by police investigating a crime. However, the subjects of the raids and others suggest a different motive. A spokesperson for News Corp described the raids as ‘a dangerous act of intimidation’. In The Guardian, Richard Flanagan branded the raids an attempt to ‘suppress the truth’. ABC Chair Ita Buttrose described the raids as ‘a blunt signal of adverse consequences for news organisations who make life uncomfortable for policy makers and regulators’.

The laws that authorise the warrants are properly the subject of scrutiny, particularly when it intrudes on the work of a journalist and media organisations. But so too should a secondary feature of the search warrant that was executed on the ABC, namely, the fact that it was authorised by a registrar of the Local Court.

It may surprise some, especially those outside the legal community, that the authorisation of a warrant is an administrative act, not a judicial one, and that there is a long history of search warrants being authorised by individuals other than judges. That is not to say search warrants should not be authorised by a registrar: in New South Wales, the Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’) expressly endows registrars (and others authorised by the Attorney-General) with that power. However, if the media in Australia occupies a special position of responsibility, one which includes holding public officials to account, then it must be worth asking: should the media be afforded a measure of protection in discharging that responsibility?

A short history of the evolution of search warrants

The practice of issuing warrants to seize the papers of an accused person dates back to before the English Restoration, and probably had its origin ‘in an enlargement … of the power given to the secretary of state by the Licensing Acts to issue search warrants to seize unlicensed and libellous publications … [However,] if the power of the secretary of state to issue these search warrants originated in this way, it disappeared with the lapsing of the Licensing Acts’ (see Holdsworth, A History of English Law, vol 10 (1938), pp 668-669).

Despite being in an obvious tension with the common law, including of trespass, the practice of issuing search warrants continued for some time with no specific legislative foundation. The legality of the practice was ultimately questioned and resolved (at least in England) in Entick v Carrington (1765) 19 State Tr 1029, in which Lord Camden CJ rejected the claim that the secretary of state had a common law power to issue a search warrant to seize papers. Lord Camden stated (at 1066): ‘By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.’

In New South Wales, a specific statutory authority to execute search warrants, and to protect constables and others performing their duties under them, existed with the establishment of the colony. That statutory authority was later replaced by the Police Regulation Act 1899 (NSW) which remained in force until its replacement by the Police Service Act 1990 (NSW). Despite this, the common law appears to have been the accepted foundation for the regulation of the issue of search warrants in New South Wales at least until the commencement of the Search Warrants Act 1985 (NSW). Section 24 of that Act abolished ‘[a]ny common law power conferred on a justice of the peace or any other person to issue a warrant authorising a person to enter premises for the purpose of searching for stolen goods or any other thing.’ The Search Warrants Act was repealed in 2002 with the commencement of the LEPRA.

Although the Commonwealth Crimes Act and LEPRA confer a power to issue search warrants on magistrates (and registrars and others), the performance of that power is an administrative, rather than a judicial function. Underscoring this, s 4AAA(2) of the Commonwealth Crimes Act provides that the power to issue search warrants is conferred on magistrates in their ‘personal capacity and not … as a court or a member of a court.’

Notwithstanding its administrative nature, the power to issue search warrants must be exercised judicially. The person asked to issue the search warrant must act in a just and fair manner and with judicial detachment (see Love v Attorney-General (NSW) (1990) 169 CLR 307 at 321). Moreover, a person who requests a search warrant must make something akin to, but not necessarily synonymous with, an ex parte application, carrying with it the obligation to disclose all material facts to the person being asked to authorise the warrant (see George v Rockett (1990) 170 CLR 104 (‘Rockett’s case’) at 113-114).

As the Court stated in Love v Attorney-General (NSW) (at 322-3): ‘Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority.’ Further, as was observed in Rockett’s case (at 111):
‘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.’

Given its administrative character, a search warrant may be subject to judicial review and to collateral challenge in ‘downstream’ proceedings (see Ousley v R (1997) 192 CLR 69, per McHugh J at 100). At this point, ‘[t]he fact that the warrant was issued by a judicial officer’ – or a justice of the peace – ‘is of no relevance to the broad jurisdiction of the trial court to determine that there has been jurisdictional error’ (Carmody v Mackeller (1996) 68 FCR 265 at 277); and ‘[a]bsent legislation excluding judicial review or collateral challenge, it makes no difference whether the administrative act has been performed by an agent of the executive government or by a judge of a superior court’ (Ousley v R, per McHugh J at 102). (That said, a presumption of regularity may attach to a warrant issued by a Superior Court; a presumption that may not attach to warrants issued by subordinate authorities (see Ousley v R, per Gaudron J at 88-89)).

In substance, there is no difference in the exercise of the power to authorise a warrant of any kind, whether that power be exercised by a judge, a magistrate, a registrar, a justice of the peace, or some other person empowered by statute to authorise a warrant. Each ‘stand[s] between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs’ (Parker v Churchill (1985) 9 FCR 316 at 322). Each must discharge that fundamental responsibility, irrespective of their position or appointment.

The requirement to act judicially

The requirement to act ‘judicially’ is one protection against abuse.

The real issue, perhaps, is whether, in the case of warrants that intrude on the work of journalists, that protection is perhaps better exercised by a judge so as to give the community (and the media particularly) greater confidence when a warrant is issued.

Whilst ‘[j]ustices of the peace are a numerous and eclectic class of persons in Australia without any requirement of legal training’ (Crowley v Murphy (1981) 34 ALR 496, per Lockhart J at 514), the same cannot necessarily be said for other categories of ‘subordinate authority’. For instance, registrars in New South Wales courts are employed pursuant to the Government Sector Employment Act 2013 (NSW). That Act imposes no obligation for a registrar to have legal training, but, anecdotally, registrars typically do come to the role with legal training and experience. Magistrates are appointed pursuant to the Local Court Act 2007 (NSW) and, pursuant to s 13 of that Act, it is a requirement for a magistrate to be a lawyer of at least five years’ standing, or to be a person who holds, or has held, a judicial office.

Because authorising a warrant is not a judicial act, there is nothing unorthodox about the notion of a justice of the peace, a registrar or other ‘subordinate authority’ exercising that administrative power.

Why then give judges any role at all?

The judicial commentary on the topic suggests two possible answers: first, that judges can be assumed to bring a degree of qualification and training to the task of authorising warrants; and secondly, that the involvement of a judge (and a judicial mind) in the process of authorising a search warrant will allay any concerns or misgivings the public may have about the process.

Legislators have considered it appropriate to create a ‘hierarchy’ of warrants, with an associated ‘hierarchy’ of authority among those typically empowered to authorise them. That is to say, certain categories of warrant are seen by legislators to (and do) intrude into the lives of citizens to an extent greater than a standard search warrant, and legislators have seen fit to ensure that the power to authorise those categories of warrant is reserved to higher authorities. Even at the ‘lower’ end of the spectrum, there has been a move away from apparently ‘unqualified’ justices of the peace having any role in the authorisation of the issue of standard search warrants.

By way of example, warrants authorising the interception of communications by way of a listening device are treated differently by various Australian jurisdictions. Unlike a standard search warrant, the existence of these warrants is unlikely to be disclosed to the subject of the warrant before its execution, so legislatures have given judges a special role.

In Hilton v Wells (1985) 157 CLR 57, the majority of the High Court (Gibbs CJ, Wilson and Dawson JJ) stated (at 72) that the power to issue an interception warrant, as invested in a judge of the Federal Court of Australia or the Supreme Courts of the Northern Territory or Australian Capital Territory by the Telecommunications (Interception) Act 1979 (Cth), as it applied at that time, ‘was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it.’

In Love v Attorney-General (NSW)  it was said, in relation to the now-repealed Listening Devices Act 1984 (NSW) (at 321): ‘No doubt the legislature intended that the power would be exercised in a judicial manner by persons who are judges in order to allay any public misgivings about the issue of warrants under [the relevant Act].’ (See also Grollo v Commissioner of Australian Federal Police (1995) 184 CLR 348, per Brennan CJ, Deane, Dawson and Toohey JJ at 367.)

Do current protections go far enough?

Journalists and media organisations already do their work with at least some legislative and administrative protection. Shield laws, for example, protect journalists (albeit in limited circumstances) who decline to reveal their source(s). Similarly, the Public Interest Disclosure regime at the Commonwealth level (and various whistle-blower protections operating in other jurisdictions) can, in some circumstances, protect sources. But is this enough?

Following the AFP raids, the President of the NSW Bar Association, Tim Game SC, expressed concern about the ‘opaque process’ surrounding the issue of the search warrants. The President of the Australian Bar Association, Jennifer Batrouney QC, also expressed concern that such ‘matters are not going before a judge for proper consideration.’ Law Society of NSW President Elizabeth Espinosa has also said that the ‘Law Society of NSW considers that any application for a warrant to search media premises for the purpose of investigations in connection with media reporting should require judicial oversight’.

In what must be a tacit acknowledgement that the authorisation of some warrants requires more careful handling than others, the AFP has issued search warrant guidelines to its officers which provide that ‘where the execution of a search warrant may have politically sensitive implications [it] should be raised with the Minister responsible for the AFP.’ The guidelines state: ‘This enables the Government to be informed at the earliest juncture of potentially politically contentious matters that may require investigations by the AFP.’ However, the extent to which these guidelines might lead to a reconsideration of the decision to apply for a search warrant is unclear, and such a guideline could potentially give rise to situations which affect the perception of the AFP’s independence.

Should the media be subject to a special category of warrants?

Rather than unenforceable guidelines, we should ask whether legislatures should be encouraged to create a special category of warrant applicable to journalists and media organisations, not unlike that which applies to the interception of electronic communications.

Would a special category of warrant, only available to law enforcement agencies following an application to a judge of a superior court, give the community more confidence?

Would the special professional experience and qualifications of judges help guarantee that the appropriate balance will be kept between law enforcement agencies and the media’s ability to report on issues of public importance?

The law and practice of the authorisation of search warrants has evolved significantly in the 20^th Century to address the special challenges posed by technological developments and changing and community expectations. We should continue to question whether the frameworks for search warrants in Australia are fit for the times.

Bradley Dean is a barrister at 8 Wentworth Chambers.