HIGHH I G H COURTC O U R T OOFF AUSTRALIAA U S T R A L I A NOTICENOTICE OOFF FILINGFILING This documentdocument wawass filedfiled electronicallyelectronically in thethe High CCourtourt of AustraliaAustralia on 09 Dec 202020 andand hashas beenbeen acceptedaccepted forfor filingfiling under the High CCourtourt RulesRules 20042004.. Details of filing andind importantimportant additiadditionalonal iinformationnformation aarere providedprovided below.below. DetailsDetails of FilingFiling FFileile Number:Number: S129/2020$129/2020 FFileile Title:Title: Zhang v. The Commissioner of Police & Ors RRegistry:egistry: Sydney DocumentDocument filed:filed: Form 27D - Respondent's submissions FilingFiling party:party: Defendants DaDatete ffiled:iled: 09 Dec 2020 ImportantImportant InInformationformation ThisThis Notice hashas beenbeen insertedinserted aass thethe ccoverover pagepage of the documentdocument which has beeenn acceptedaccepted for filing electronically.electronically. ItIt is now takentaken tobeto be partpart of that ¢document for thehe purposespurposes of the proceedingproceeding in the CourtCourt aandnd ccontainsontains importantimportant inforini mation for aallll partiesparties to thatthat proceeding.proceeding. IItt mmustust be incincludedluded in thethe documentdocument servedserved on each of thoseIse partiesparties aandnd wheneverwhenever the docdocumentument iiss reproducedreproduced fforor use by the CourtCourt. Defendants S129/2020$129/2020 Page 1 $129/2020S129/2020 IN THE HIGH COURT OF AUSTRALIA SYDNEY REGISTRY BETWEEN: JOHN SHI SHENG ZHANG Plaintiff and THE COMMISSIONER OF POLIPOLICECE First Defendant JANE MOTTLEY Second Defendant JOSEPH KARAM Third Defendant MICHAEL ANTRUM Fourth Defendant JOINT ANNOTATED SUBMISSIONS OF THE FIRST DEFENDANT AND THE ATTORNEY-GENERALATTORNEY-GENERAL OF THE COMMONWEALTH (INTERVENING) Defendants Page 2 $129/2020S129/2020 $129/2020S129/2020 PARTI:PART I: CERTIFICATION 1. | These submissions are in a form suitable for publication on the internet.internet. PART II:I: CONCISE STATEMENT OF ISSUES 2. The issues are reflected in the questions of law stated by the parties (SCB 59-6059-60 [[59]).59]). PART III:UI: SECTION 78B NOTICES AND INTERVENTION 3. The Attorney-GeneralAttorney-General of the Commonwealth intervenes in this proceeding under s 78A 10 of the Judiciary ActAct 1903 (Cth), in support of the first defendant. 4. The plaintiff hashas given notice under s 78B of the Judiciary Act.Act. The first defendant and the AttorneyAttorney-General-General ((thethe CommonwealthCommonwealth)) consider that no further notice is required. PARTIV:PART IV: MATERIAL FACTS 5. | The material facts,facts, and the defined terms used below, are set out in SCB 45-60.45-60. 20 PART V: ARGUMENT 6. In summary, the Commonwealth submitssubmits as follows: 6.1. CChallengehallenge to the Warrants and s 3LA OrdersOrders.. The First, Second and Third Search Warrants (the Warrants)Warrants) each complied with the requirement to “state …... the offence” to which they related. They cconveyedonveyed what was necessary to mark out the boundaries the search. Whether or not they were required to the relevant boundaries of the search. Whether or not they were required to identify the relevant 30 “target” for the purposes of the s 92.3(2) offenceoffence,, or the relevant foreign principal s so. for the purposes of both the s 92.3(1) and (2) offences,offences, theythey did so. IfIf there waswas any defect in the descriptiodescriptionn of the s 92.3(2) offence but not the s 92.3(1) offence,offence, the statement of the s 92.3(2) offence can be severed. The validity of the s 3LA OOrdersrders rises or falls with the validity of the First Search Warrant. 6.2. Challenge to s 92.3(1) and (2). PProperlyroperly construconstrued,ed, the provisions have a narrower 40 operation than that for which the plaintiff contends.contends. AtAt most, they place a very limited burdenburden on political communication.communication. The purpose of the provisions — protecting Australia’s sovereignty by reducing the risk of foreign interference in protecting Australia’s sovereignty by reducing the risk of foreign interference in Australia’s political or governmental processes — is is not only legitimate, but serves to preserve and enhance the system representative and to preserve and enhance the system of representative and responsible government. The provisions are reasonably appropriate andand adapted to that significant purpose. Accordingly, any burden on the freedom is justified.justified. Joint Annotated Submissions of the First Defendant and the Attorney-GeneralAttorney-General of the Commonwealth Page 11 Defendants Page 3 $129/2020S129/2020 $129/2020S129/2020 6.3. Relief. IfIf the Warrants and/or the s 3LA OrdersOrders are invalid, certiorari should issue to quash them. However, the plaintiff should be granted declaratory relief only if the Court dismisses the challenge to the Warrants based on the alleged mismis-- statement of the offences, but finds that s 92.3(1) or (2) contravene the implied 1 freedomfreedom.. Otherwise, as occurred in Smethurst,'Smethurst, declaratory relief concerning the validity ooff the impugned provisions should be refused.refused. Finally, the injunctiveinjunctive relief sought should be refused even if the Warrants are quashed in their entirety, as again 1010 is consistent with Smethurst.Smethurst. the and s and 2) A. ValidityValidity of the Warrants and s 3LA Orders (Questions(Questions 1(a)1(a)-(b)-(b) and 2) 7. ApplicableApplicable principles.principles. Section 3E(5)(a) of the Crimes Act 1914 (Cth) required each of Warrant to “state …... the offence to which the warrant relates”. While that requirement is important in preventing the issuing of general warrants,warrants, it does not do the work that the plaintiff'splaintiff’s submissions suggest (which treat it as requiringrequiring warrants to state “with 20 precision” the way the suspected facts relate to every element of the offence):offence): PS [15][15].. 8. As recently explained in Smethurst,Smethurst, s 3E(5)(a) requires the relevant offence to be “stated on the face of the warrant, in a way which is both intelligible and sufficient to convey what those concerned with or affected by the warrant need to understand”’.*understand”.2 TThehe test is one of “sufficiency“sufficiency to indicate the areas of the search”.*search”. 3 ItIt is not necessary for a warrant to state the offence with the same precision and specificity as is required for an 30 indictment.*indictment.4 Nor is it necessary that the statement of the offence be framed by reference to the elements of the offenceoffence.°.5 That being so, the omission or misstatement of an element of the offence does not,not, of itself, constitute a failure to comply with s 3E(5)(a). It will do so if, and only if, the omission or misstatement means that the warrant fails sufficiently 6 7 to indicate the areas of search.search.° The question is one of substance.’substance. 40 1 Smethurst v Commissioner of Police (2020) 94 ALJR 502. 2 Smethurst (2020) 94 ALJR 502 at [27] (Kiefel CJ, Bell and Keane JJ; Gageler, Nettle and Gordon JJ agreeing). 3 Smethurst (2020) 94 ALJR 502 at [28]. 4 Smethurst (2020) 94 ALJR 502 at [28],[28], see also at [29][29]-[38];-[38]; New South WalesWales v Corbett (2007) 230 CLR 606 at [99] (Callinan and Crennan JJ, with whom Gleeson CJ and Gummow J generally agreed). 606 at [99] (Callinan and Crennan JJ, with whom Gleeson CJ and Gummow J generally agreed). 5 So much is demonstrated by Corbett (2007) 230 CLR 606 at [97], [99] and [103]-[104][103]-[104] (Callinan and Crennan JJ, with whom Gleeson CJ and Gummow J generally agreed).agreed). 6 See also Smethurst (2020) 94 ALJR 502 at [204] (Edelman J). 7 Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166166 at [105][105] and [114] (the Court). Joint Annotated Submissions of the First Defendant and the Attorney-GeneralAttorney-General of the Commonwealth Page 2 Defendants Page 4 $129/2020S129/2020 $129/2020S129/2020 9. Those propositions reflect the practical nature of the requirement that the warrant “state …... the offence to which the warrant relates”. TThehe warrant must be read as a whole,®whole,8 in a 9 manner reflecting a broad practical approach and without overzealous technicalitytechnicality.°. That is necessary to give effect to Parliament’s judgmentjudgment that, iinn order to advance the public 10 interest in thethe investigation and prosecution of crimes,crimes,'° warrantswarrants can be granted on the basis of a reasonable suspicion of crime (and therefore before all the facts are known) “in aid of a criminal investigation being conducted by police officers …... not a curial process 1010 conducted by lawyers”lawyers”.''.11 Accordingly, “[iJ]t“[i]t is general warrants that mustmust be avoided, not 12 warrants that lack the precision of …... curial processes, either civil or criminal”.'?criminal”. 10. s 92.3(2) offence. The submits that 10. First ground: AllegedAlleged misstatementmisstatement of the s 92.3(2) offence. The plaintiff submits that para (ii)(11) of each statement of the s 92.3(2) offence misstated the offence, because it referred to recklessness as to whether the conduct would influence a process or referred to recklessness as to whether the conduct would influence a political process or the exercise of a political right or duty, rather than recklessness as to whether the conduct 20 would influence another person — the targettarget — in relation to those matters (PS [8][8]-[9]).-[9]).