Australia: Court of Appeal clarifies DEHP's powers to seize IT equipment

On Friday, 16 October 2015, the Queensland Court of Appeal (Court) overturned a decision of the Supreme Court of Queensland, making it clear that the Department of Environment and Heritage Protection (DEHP) has broad powers to seize IT equipment for the purposes of investigating environmental harm offences under the Environmental Protection Act 1994 (Qld) (EP Act).

Background

In 2013, the DEHP had information that indicated that Linc Energy Ltd (Linc) may have offended against certain provisions of the EP Act. The alleged offences mainly related to causing both serious and material environmental harm, contravening a condition of Linc's environmental authority and for executive officers failing to ensure compliance with the EP Act. Linc is separately defending these claims.

The DEHP applied to the Court for a warrant to enter Linc's premises to investigate the alleged offences in accordance with its authority under section 456 of the EP Act. Two warrants were issued to the DEHP authorising entry into Linc's offices as well as to its underground coal gasification demonstration facility.

When executing the warrants, officers of the DEHP seized Linc's property IT equipment such as backup tapes, computer-stored data and a hard drive disk.

Linc made an application to the Supreme Court that both the seizure and retention of the IT equipment was unlawful and requested orders for their return. The Supreme Court allowed this application and found that seizure of that equipment was "not a legitimate exercise of the power of seizure" and that the DEHP was not entitled to retain the equipment.

The DEHP appealed that decision in the Court, arguing that the whole of the IT equipment itself constituted records relating to relevant matters in its investigations, even if they also contained other information that is not relevant to the investigation.

Linc argued that, under the EP Act, the DEHP was only entitled to seize a 'particular thing' that might provide evidence of an offence, and that the IT equipment was not one 'particular thing' and therefore could not be seized.

Decision

The Court of Appeal found in favour of DEHP and held that the DEHP was authorised to lawfully seize the IT equipment. The distinction made by the Court was that the EP Act does not specifically require the equipment to exclusively contain relevant information, as Linc had argued, but rather the DEHP was entitled to seize the equipment on the basis that a 'thing' may provide evidence simply by being a repository from which evidence may be sourced.

Details of the decision can be found at Chief Executive Administering the Environmental Protection Act 1994 & Anor v Linc Energy Ltd [2015] QCA 197 (16 October 2015)

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