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).
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.
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.
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