Construction, Forestry, Mining and Energy Union v Commissioner of the Australian Federal Police (No 2) [2016] FCA 833

Construction, Forestry, Mining and Energy Union v Commissioner of the Australian Federal Police (No 2) [2016] FCA 833

The AFP officers formed requisite suspicion on reasonable grounds that the seized electronic materials constituted evidential material under the Crimes Act 1914 (Cth), so their actions in copying and seizing those materials were lawful. However, the AFP officers did not provide a reasonable or adequate opportunity to claim legal professional privilege over the electronic data once the process changed and all the data was seized, as notice was not given to the CFMEU that the protocol for electronic data would apply.

Parties
Applicant: Construction, Forestry, Mining and Energy Union; First Respondent: The Commissioner of the Australian Federal Police; Second Respondent: The Commissioner of the Queensland Police Service
Jurisdiction
Australia
Judgment Date
22 July 2016
Procedural Posture
Judicial Review / Final Judgment After Trial
Outcome
Application dismissed
Legal Topics
Search and Seizure, Legal Professional Privilege, Police Powers, Execution of Search Warrants, Administrative Decisions (judicial Review)
Administrative Law Criminal Law Constitutional Law Human Rights Search and Seizure Legal Professional Privilege Police Powers Execution of Search Warrants +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 18 Party arguments 2
Sign in to unlock

Parties

Construction, Forestry, Mining and Energy Union

Applicant

The Commissioner of the Australian Federal Police

First Respondent

The Commissioner of the Queensland Police Service

Second Respondent

Procedural Posture

Judicial Review / Final Judgment After Trial

Legal Issues

  1. 1 Whether the AFP officers had reasonable grounds to copy and seize electronic materials or seize the hard drive under the search warrant issued under the Crimes Act 1914 (Cth)
  2. 2 Whether the AFP officers acted unreasonably by failing to accommodate claims for legal professional privilege over the seized electronic materials

Ratio Decidendi

The AFP officers formed requisite suspicion on reasonable grounds that the seized electronic materials constituted evidential material under the Crimes Act 1914 (Cth), so their actions in copying and seizing those materials were lawful. However, the AFP officers did not provide a reasonable or adequate opportunity to claim legal professional privilege over the electronic data once the process changed and all the data was seized, as notice was not given to the CFMEU that the protocol for electronic data would apply.

Court Disposition

Application dismissed

Orders

  • The CFMEU's second further amended originating application is dismissed.
  • Parties to produce an agreed set of directions (or submissions, if no agreement) regarding the process for determining legal professional privilege claims over seized data.