Access operations judicial review

Summary

Judicial review proceedings were filed by the applicants challenging the lawfulness and reasonableness of search and seizure operations undertaken by the Commissioner, pursuant to section 16 of the Tax Administration Act 1994 ("TAA"), on a number of business premises and private residences.

Impact of decision

The Judge found no fault in the procedures followed by the Commissioner's access and removal teams, and shows they were methodical, justifiable and not unreasonable.

The judgment also confirms the decision of Avowal Administrative Attorneys Ltd v District Court at North Shore [2010] 2 NZLR 794 ("Avowal"). That is that the statutory form of warrant is sufficient; the Commissioner need not exhaust alternative investigatory powers before relying on section 16 of the TAA; and other persons may accompany the officer executing the warrants so long as their presence is necessary for the effective exercise of the search and inspection powers.

The judgment highlights that judicial review is an inappropriate mechanism to challenge the issue, validity and execution of a search warrant. Fact-intensive issues of the reasonableness of the search and/or the excessiveness of any seizure are not appropriate in a judicial review context.

Facts

On 16 March 2011, as part of his investigation into the tax affairs of Messrs Tauber and Webb and entities associated with them, the Commissioner executed access and removal warrants in respect of residential and commercial premises in Auckland and Hamilton. A total of eight sites were accessed: six in Auckland and two in Hamilton.

A total of 111 boxes of hard-copy books and documents were removed, along with approximately 9.5 terabytes of electronic media. Late on 16 March 2011, a blanket privilege claim was made over all hard-copy and electronic information removed. Subsequently the material was sealed in the offices of the Crown Solicitors in Auckland where it has remained since.

On 8 April 2011, the applicants filed a judicial review application challenging the lawfulness and reasonableness of the access and removal operations for the six Auckland sites.

Decision

Were the section 16(4) and 16C(2) warrants too widely drawn, too general and lacking in specificity?

Justice Venning first outlined the Commissioner's powers to obtain information as set out in Part 3 of the TAA, in particular sections 16 to 19. Under section 16 the only statutory criteria for access to information is that the Commissioner must consider it necessary or relevant for his statutory purposes. The warrant to access private dwellings under section 16(4) must be considered in that context. The District Court Judge need only be satisfied that the exercise of the Commissioner's functions requires access to private dwellings (along with the reasonableness requirements of section 21 of the New Zealand Bill of Rights Act 1990 ("NZ BoRA")).

The Court considered whether the warrants were too widely drawn and lacked specificity. Noting that the warrants were issued in the form prescribed by the Tax Administration (Form of Warrant) Regulations 2003, Justice Venning cited Avowal, a case also involving the Commissioner's search powers under section 16. Case law on this issue has confirmed that the statutory form of warrant is sufficient. The warrants could not be criticised because they followed and complied with the prescribed form.

The challenge that the warrants were too widely drawn and lacked specificity was dismissed.

Were the section 16(1) searches necessary and were the section 16(4) and 16C(2) warrants required to enable the exercise of the Commissioner's functions?

The applicants submitted that the reasonableness of the access operation depended on whether the Commissioner had exhausted other less intrusive alternatives, such as asking for the information by telephone; applying to the District Court under section 17A of the TAA; seeking an interview under section 19 of the TAA and/or holding a targeted inquiry before a District Court Judge under section 18 of the TAA.

Justice Venning again cited Avowal and noted that there is no requirement for the Commissioner to exercise all or any of his other powers in Part 3 of the TAA before choosing to use the access provisions in section 16. Furthermore, the question for the judicial officer considering whether to issue a warrant is whether the exercise of the Commissioner's functions under section 16 of the TAA requires access to a private dwelling. It was not for the judicial officer to second-guess or review the decision of the Commissioner to invoke his powers to obtain information under section 16.

Justice Venning found that it was not unreasonable for the Commissioner to have invoked his powers under section 16, including the power of access to private dwellings under section 16(4). It was entirely reasonable for the Commissioner to expect that relevant documentation would be found in the three private homes that were accessed. It was also not unreasonable for the District Court Judge to conclude that the exercise of the Commissioner's functions may have required the removal of books and documents for a full and complete inspection. The issue will always be whether access to private homes is required and whether the search of them in the circumstances of the case was reasonable.

The searches were found to be necessary and the section 16(4) and 16C(2) warrants were required and justified.

Were the searches carried out in an unreasonable manner?

The applicants pointed to a number of factors that they alleged made the searches unreasonable. These factors were the excessive number of persons engaged in the search of the premises, the duration of the searches, the search of areas that were wholly irrelevant and of roof spaces, the perusal of intimate, personal and obviously irrelevant records, the parking of vehicles on private property, the officers remaining on the property during lunch times, damage to personal items and searches of records relevant to ongoing Taxation Review Authority (TRA) proceedings.

Justice Venning cited the Court of Appeal's decision in Gill v Attorney-General [2011] 1 NZLR 433 where it was noted that "the use of the rather blunt instrument of judicial review should rarely be permitted to be used to challenge the issue, validity and execution of a search warrant". Justice Venning stated that it was not possible to resolve the details and nuances of the factual issues concerning the searches on a judicial review application.

Nevertheless, Justice Venning went on to consider the applicants' complaints. As to the number of officers involved, the Commissioner's process of employing a team of officers was considered and approved in Avowal. Not only did the warrants specify that the officer executing it may be accompanied by other person(s), each of the other persons had a role to play. Further there was a balance between the number of people involved in the search and the length of time the search will take. In this case, the number of persons involved in the search did not make it unreasonable.

The next complaint was that irrelevant areas were searched. Justice Venning noted how it was "not possible to rule out any particular areas of a dwelling as irrelevant as documents or books can be hidden or stored anywhere" [60]. His Honour noted further that the searches were focused. Processes were in place to deal with privileged material and occupiers were advised of their rights and given an opportunity to consult with a solicitor.

There were complaints that personal and irrelevant items were unnecessarily searched and inspected. Justice Venning found that this complaint could not be resolved in this judicial review application. However, it was noted that the searches of private bedrooms and living areas took a fraction of the total time spent on site.

Other complaints were made about cars parked on private property. Justice Venning noted section 16(2) of the TAA requires occupants to provide the Commissioner with all reasonable facilities and assistance for the effective exercise of his powers under the section. His Honour noted that the cars served a readily discernable function and that the provision of reasonable facilities in section 16(2) could extend to the provision of temporary parking facilities. The complaint about officers eating their lunches was similarly dealt with, in that section 16(2) requires the provision of reasonable facilities.

Mr Tauber complained that he was arbitrarily detained. Justice Venning found that Mr Tauber was not arbitrarily detained as he was free to leave the property once the search of his car was completed.

The final complaint about the conduct of the searches was that the access teams removed material relating to ongoing TRA proceedings. This was also said to breach section 27(3) of the NZ BoRA. Justice Venning cited Vinelight Nominees Ltd & Anor v Commissioner of Inland Revenue (2005) 22 NZTC 19,298 where this issue has been considered and referred to recently by the Court of Appeal in the decision of Commerce Commission v Air New Zealand [2011] 2 NZLR 194. The fact that there were TRA proceedings on foot did not constrain the Commissioner from exercising his search powers under section 16. There was no evidence that the dominant or principal purpose of the search was to obtain information relating to the TRA proceedings.

Justice Venning concluded that the searches and seizures were not unreasonable in terms of section 21 of the NZ BoRA.

Was the application for the warrants deficient?

The applicants submitted that much of what was put before the District Court Judge to justify the warrant application was erroneous and that the cumulative effect of it was that the affidavit as a whole was misleading to a material degree.

Justice Venning considered the separate allegations in the light of the Tranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA) decision where it was stated that "(c)ertainly there will be cases when it can be said that although something relevant has not been disclosed the non-disclosure can have made no difference". Correct information was put before the District Court Judge and statements were not made in bad faith. Whatever errors or failings contained in the affidavit were confined to emphasis only. In the context of a lengthy affidavit these were not found to be material and could not possibly have affected the District Court Judge's decision to issue the access warrants under section 16(4) and the warrants under section 16C(2) of the TAA.

The challenges to the issue of the warrants and subsequent search were not made out. The judicial review application was dismissed.