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High Court of Australia Transcripts |
Office of the Registry
Melbourne No M78 of 1994
B e t w e e n -
BRUNO GROLLO
Applicant
and -
PETER MACAULEY, Commissioner of the Australian Federal Police
First Respondent
TELSTRA CORPORATION LIMITED
Second Respondent
DIRECTOR OF PUBLIC PROSECUTIONS (Commonwealth)
Third Respondent
COMMISSIONER OF TAXATION
Fourth Respondent
COMMONWEALTH OF AUSTRALIA
Fifth Respondent
Cause removed pursuant to section 40 of the Judiciary Act 1979
BRENNAN CJ
DEANE J
DAWSON J
TOOHEY J
McHUGH J
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 30 MAY 1995, AT 10.21 AM
Copyright in the High Court of Australia
MR M.S. WEINBERG, QC: May it please the Court, I appear together with my learned friend, MR G.T. PAGONE, on behalf of the first and third respondents. (instructed by M. Rozenes, QC, Director of Public Prosecutions (Commonwealth))
MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear with my learned friend, MR C.R. STAKER, intervening for the Attorney-General of the Commonwealth to support validity. (instructed by the Australian Government Solicitor).
BRENNAN CJ: Yes, Mr Solicitor. The Acting Senior Registrar certifies that she was being informed by Ms Janet Buzza, Special Counsel, employee matters of Telecom Australia, by a letter dated 20 September 1994 that the second respondent in this matter, Telstra Corporation Limited, does not wish to participate in these proceedings and will not be represented at the hearing. The second respondent will abide by any order of the Court save as to costs in relation to which, so far as an order concerning it is made, the second respondent would like to be heard.
Mr Castan, before you commence, Justice Toohey and Justice Gummow wish me to indicate that while Judges of the Federal Court of Australia, each of them exercised functions provided for in the Telecommunications (Interception) Act . Justice Toohey did so before the legislation was amended by the Telecommunications
MR CASTAN: May it please the Court, the submissions for the applicant fall into three parts. My learned friend, Mr Merkel, will deal with Part I and I will be dealing with Parts II and III, if the Court please. If the Court pleases, there are three documents - - -
BRENNAN CJ: Mr Merkel, we now have some submissions which..... attempt to be an outline, are they, or are they a written summary of everything that you propose to say?
MR MERKEL: Your Honour, one of the problems with the removal in the present case is that there has not been a consideration by a court below of any of the matters and, rather than have a short summary and, without anything for the courts to be guided by, we took the liberty of preparing more detailed submissions which would hopefully shorten the time we take in putting the submissions to your Honours. Can I indicate that at the head of each page of the detailed submissions are the statement of propositions in respect of each part. The first is Part I which deals with incompatibility and we set out at page 1 the statement of propositions that are dealt with in that part of our submissions.
Part II, your Honours, deals with the question of persona designata. That is at page 24 and likewise we have set out the statement of the three propositions which we then go into greater detail on in argument. The third part, your Honours, is at page 30 and we set out the propositions we wish to advance on the question of the judicial power.
BRENNAN CJ: Well, what is the most efficient way of proceeding? If you are not delivering the argument on Part I, shall we read only the propositions first?
MR MERKEL: Yes, your Honours. I had proposed to take your Honours in detail to the Act itself, because the Act in its present form, is in a significantly and very substantially different form to the Act that was considered in Hilton v Wells and I was going to take your Honours through the written outline if that was suitable to your Honours.
BRENNAN CJ: Well, just give us a moment to read your.....propositions and then you can proceed, Mr Merkel.
MR MERKEL: If your Honour pleases.
BRENNAN CJ: Yes.
MR MERKEL: If the Court pleases, could I just briefly take your Honours to the chronology of events which is the second document which has been handed up to your Honours. It summarises the relevant facts which are within a very narrow compass. The only relevant facts that your Honours need to know at this stage were that the matters that led to the intercept warrants being issued by Justice Heerey on 2 June started with an investigation into alleged tax offences in June 1992. Search warrants were issued in respect of that investigation in September 1992 and there were proceedings in the Federal Court to set aside those search warrants under the Administrative Decisions (Judicial Review) legislation.
On 2 June 1993 application was made to Justice Heerey under the Telecommunications (Interceptions) Act 1979 as an eligible judge for a warrant. The material on which that application was based was claimed to be the subject of public interest immunity and even at this stage it has not been made available, but the warrant which appears at pages 59 to 61 of the court book, that is in volume 1, contains the only information made available to the applicant in respect of the warrant. It indicates it is a warrant to the members of the Australian Federal Police to whom an approval has been granted under section 55(2) of the Act.
It indicates an application by Commander Draffin in respect of a particular communication service, which is a mobile phone, and it indicates that his Honour was satisfied as an eligible judge as to the matters set out in paragraphs (a), (b) and (c), but particularly in respect of (b). I draw your Honours' attention to the satisfaction that on the material that his Honour had before him "there are reasonable grounds for suspecting that" Mr Grollo "is using, or is likely to use, the service" and in (c) that the:
information that would be likely to be obtained.....would be likely to assist in connection with the investigation -
of class 2 offences described, which were the conspiracy to defraud offences, which were the same as those which were the subject of the search warrant, and his Honour then signed the warrant as a judge at page 61 and the warrant was in force for 90 days. Going back to the chronology, that led to communications being intercepted on the mobile phone on those dates and the conversations were recorded. I should indicate just so that your Honours understand what actually occurs when a phone is intercepted in this way, there is an explanation at pages 125 to 126 and at the bottom of 124 that explains the process that is followed once the intercept occurs. There is a special branch in Canberra of Telstra that deals with the intercepts. That is at page 123, paragraph 26(b):
the AFP Telecommunications Interception Service Branch ("the TISB") which is based in Canberra.
Then at paragraph 33 the process of interception is described. The deponent says that:
The Monitors work on a shift rotation basis. They monitor all calls to and from the service which is the subject of a TI Warrant.
And then it goes on to describe that "a Monitor will listen to each conversation live" and then records brief details of it. That is at page 125. The recording is of all conversations and there is an element of judgment as to whether the recording will be retained or not. I will not read it fully to your Honours, but I would invite your Honours to peruse the process.
At paragraph 38 at page 126 the description of what occurs is added to by the officer listening to every conversation and evaluating every recorded conversation. At page 141 there is evidence that with an intercept on a mobile telephone service that the information recorded is not only the conversation itself but the caller with whom the conversation is had but that, apparently, is not the case with the normal service. One may or may not identify from the conversation the caller, that the other party's phone number is only identified on a mobile service, not the usual service.
So that as a result of his Honour's intercept warrant, the Federal Police had all conversations recorded for the 90 days with every person on that mobile phone knowing all the phone numbers and details of the conversations. The ones that have emerged because they eventually form part of the hand-up brief are those that are referred to as item 5 of the chronology. At item 6 over at page 2, his Honour, as one of the Federal Court judges in Melbourne, heard and determined a number of matters involving what I will call the tax fraud proceedings - there were search warrant proceedings, there were challenges to legal professional privilege and, in the course of that decision which is item 7 which is at 285 to 303, his Honour had to inspect Federal Police working sheets in respect of their investigation to ascertain whether privilege claimed should be upheld. That is legal professional privilege.
Then on 23 August the applicant was charged with offences which were not those the subject of the intercept warrant or the search warrants. They are referred to in the material as corruption offences. The offences he was charged with were attempting to pervert the course of justice in certain related corruption charges and the intercept material was said to give rise, amongst other evidence or material, to those charges, but they were not the same matters that gave rise to the search warrants. Then what occurred in the course of those proceedings, there were applications to a Federal Court judge for ex parte injunctions by Mr Grollo to restrain the searches under new warrants issued in August, and it became apparent as a result of certain comments made by counsel that some of the material that had been obtained related to intercepts.
As a result of that, and only because of that, the applicant became aware that evidence intercepting some conversations of his had been obtained, but no other information was available. He then in correspondence, which is referred to at item 9, sought details but the request for an information was met with a statement that whether there was an intercept is neither confirmed nor denied. That led to proceedings in this Court which were then remitted to the Federal Court.
There were then subpoenas by the applicant to endeavour to subpoena the intercept warrants themselves and the applicant sought discovery in respect of the warrant material. Then, going to the top of page 3, that led to the respondents filing motions to set aside the subpoenas and the affidavits relied upon were affidavits which sought to raise public interest immunity in respect of all of the material including the existence of the warrants themselves. That material is set out at pages 106 to 110 and 112 to 129.
The situation was that those matters remained undetermined by the court, and in themselves would have raised issues of some importance because, as will become apparent when I take your Honours to the Act, there is simply no provision enabling any person the subject of an intercept warrant, or indeed, any persons who calls to a person the subject of an intercept warrant, to ever find out that that has occurred or that there are conversations recorded or that there is an investigation that is being continued in relation to them, unless and until the event that occurred on 10 December occurred to them, and that is that as part of the hand-up brief, the intercept material that was sought to be relied upon in the committal proceedings was given to the applicant's solicitors and that material contained a copy of the intercept warrant which was necessary to demonstrate that the material was admissible in evidence under the provisions of the legislation.
The last items were what happened after that; his Honour, in fact, sat on other proceedings arising out of the so-called corruption charges as a member of the Full Court, and I should indicate that the matter concludes with certain tax fraud offences being the subject of charges on 23 December. In fact, what has occurred is that the actual tax litigation which is the subject of the fraud charges was heard and determined by the AAT with a presidential member, that was a judge of the Federal Court, and those matters - that is the civil side of the tax recovery proceedings - are awaiting a hearing by way of appeal in the Full Court. That really is the summary of the chronology.
I should now, if I might, take your Honours to the legislation. Could I do so first by taking your Honours very briefly to the 1979 Act. It did have some minor amendments up to Hilton v Wells but they do not really affect the substantive provisions which were sections 7 and 20 which were considered in Hilton v Wells. I should indicate that while that is being located, at page 8 of our submissions, paragraph 8, there is a very brief summary of the manner in which the Act's provisions have extended.
BRENNAN CJ: Do we need the 1979 Act in its initial form or do we - - -
MR MERKEL: No, your Honour. Can I hand up copies in the original form. I am not sure that it makes any difference. I was just going to indicate to your Honours that at page 8, paragraph 8, the brief summary of the history of the Act is set out. Telephonic interceptions were originally introduced in respect of national security only in 1960 and Sir Garfield Barwick who was then the Attorney-General introduced the Act and this is referred to at page 11 in paragraph 17 by stating that:
eavesdropping is abhorrent to us as a people. Not one of us, I am sure would fail to recoil from the thought that a citizen's privacy could be lightly invaded.
The Act was deliberately not to include criminal investigations and was limited to national security. The 1979 Act was the first inroad into the criminal area and that involved Customs Act narcotic offences. The 1987 Act introduced interception in respect of a wide range of serious offences under both federal and State law, and I will take your Honours to that if I might in a moment. The two provisions that form the framework for interception in the 1979 Act were section 7 which is at page 1127 and that was in a very simple form. In section 7(1) it prohibited any interception and then in section 7(2)(b) said the prohibition does not apply to an:
interception of a communication in pursuance of a warrant.
And there was a Director-General of Security provision for security intercepts at subsection (5). The only other section that is relevant for present purposes is section 20 which is at page 1137 and under that section the provision was that:
Where, upon application being made to a Judge by an officer of Customs for the issue of a warrant.....the Judge is satisfied, by information on oath -
and then two matters are set out. One is that:
there are reasonable grounds for suspecting that the telecommunications service is being, or is likely to be, used -
in respect of -
a narcotics offence;
and that the interception will be of utility into an investigation, the judge may by warrant authorise the intercept.
The provisions in that Act were then overtaken by the Telecommunications Interception Act by reason of very substantial amendments made in 1987 and the scheme of the Act was largely the same but the protection given was far more absolute. Section 7 is the starting point of that framework; that is at page 20 which contains a blanket prohibition against interception but, as with the previous Act, accepted in 7(2)(b), interception under a warrant, but the new scheme in respect of protection to the public was set out in Part VII which is at page 56 and that provided for use of lawfully obtained information. It is a curiously structured part, but section 63 is the key section. It says:
Subject to this Part, a person shall not, after the commencement of this Part:
(a) communicate to another person, make use of, or make a record of: or
(b) give in evidence or a proceeding;
lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1).
Lawfully obtained information would be information obtained under an intercept warrant and information obtained by breaching section 7(1) then is subjected to other provisions in this Part. The main provisions in the Part are section 67 which enables an officer of an agency - an agency is one authorised to make applications under the Act for warrants - to use it for a permitted purpose. Permitted purpose includes further investigation and 74 - I should take your Honours to the definitions shortly - but section 74 is the other key provision which enables lawfully obtained information to be used in evidence in an exempt proceeding.
Unlawfully obtained information could be used, for example, for prosecutions under the Act. I do not want to get into the detail of the structure, but the effect of it is that there is an absolute prohibition against the use of any intercepted information for present purposes, save for a warrant and in respect of a warrant, that information can be used for a permitted purpose. A permitted purpose is defined in section 5. I should indicate to your Honours that it is at this point that, in effect, the scheme of the Act spreads somewhat like an octopus. It starts off as being a scheme that is limited to warrants for class 1 and class 2 offences and they are defined in section 5.
Your Honours will see class 1 offences are at page 3 and I should indicate again in advance the reason why the two categories of offences are separated is that the more serious the offence being in the class 1 category, the lower the hurdle one has to get over to get an intercept. There are fewer matters you have to satisfy the eligible judge of. Class 2 offences are serious but not in the same category as class 1 and your Honours will see (v) and (vi), offences involving serious fraud or serious loss of revenue to the Commonwealth and with each, there is the aiding, abetting and conspiring to commit the offences.
So that the warrant starts off within the defined categories of class 1 and class 2 offences, but when you get the intercepted information, you can then use it for a permitted purpose. "Permitted purpose" is defined at page 7 and your Honours will see that it is there that the use of the information starts to lose its conformity to the purpose for which it was obtained. "Permitted purpose" deals with use for an investigation for any prescribed offence. "Prescribed offence" does not mean just a class 1 or class 2 offence. That is at page 9. "Prescribed offence" includes "a serious offence" which is defined as a class 1 and class 2 offence and other offences which include "any offence punishable by imprisonment" for more than three years, and ancillary offences, and the uses for investigation of those matters, "investigation" being a fairly wide concept.
Section 6A deals with investigation of an offence and there is an extension in 6A(2) which is significant. Thus far the Act would appear to involve interception for the purpose of gathering evidence or incriminating evidence as a result of a conversation in respect of an offence that has been committed, even conspiracy, be it ongoing. But section 6A(2) extends the use to, in effect, truly investigatory activities, that is offences that are likely to be committed. So the Act's extension moves from what has happened, which is an important distinction with a search warrant where one might seize articles in respect of an offence committed, to an ongoing investigation into offences that are likely to be committed.
Section 6B picks up the same concept in subsection (b). Offences are defined, or given an extended definition, in section 6F. Unless there is a contrary intention, the investigation of offences goes forward to offences that have been, are being, or are likely to be committed, so that the intercept becomes truly investigatory as to future conduct. That is the broad scheme of the Act. Section 5B defines exempt proceedings and your Honours will see again that the exponential spread of use starts with serious offences but moves out much further and goes to use of the intercept in prescribed offences and a number of other matters. I am taking your Honours to prescribed offences, which may bear no relation whatsoever to the circumstances of the original intercept.
For example, one could have had an intercept in respect of a customs offence as a class 2 offence finds certain incriminating evidence in respect of a State matter, and if it can involve an imprisonment of over 3 years then the information is to be obtained and used in that way. I should state at the outset that it forms no part of our submissions to say that legislation of this kind cannot be lawfully enacted and that a properly constituted authority cannot exercise the powers under the legislation. The submission I am leading to in Part I is that giving this power to members of the Federal Courts in the manner given in this legislation is incompatible with the coexistence at the same time of their functioning as judges of those courts.
Just by way of example, this case does not raise the question of a Royal Commissioner selected for a task, and no doubt deferring discharge of his judicial duties while conducting a Royal Commission. It also does not touch upon the question of a Federal Court judge being appointed to head ASIO or the National Crime Authority and not sitting on the Bench at the same time. This case concerns the quite discrete and very important issue of the simultaneous functioning by a judge at the same time on the same day of both roles, in effect, in the same location in circumstances where few, other than maybe constitutional lawyers, would discern the difference between the two functions.
So in taking your Honours to the way in which this Act works, it is not a criticism of the capacity for the Act to intercept and to get information used for investigation or other purposes, but it is the conferral of those tasks on the judiciary in a way that is incompatible with the coexistence of the judicial power that really is the subject of our submissions in the first part.
TOOHEY J: I am not sure what you mean by "at the same time", Mr Merkel. Do you mean literally on the same day or while, for instance, the currency - while a Royal Commission is current, even though at a particular time the commissioner may not be sitting? What is the touchstone?
MR MERKEL: The touchstone, we would say, is the coexistence simultaneously with the discharge of incompatible functions in the same person who is discharging them on a continuing basis over a period of time.
TOOHEY J: "Simultaneously" and "continuing basis" are not necessarily the same, are they?
MR MERKEL: No, they are not, your Honour.
TOOHEY J: Are you wrapping them up together or are they each a possible avenue of attack?
MR MERKEL: They are separate avenues of attack. There are a number of U.S. decisions that consider these problems and the point is made on many occasions that it may be very well for a judge to be given extra judicial functions of a particular category for a particular time, and that those functions are performed as a one-off act or a discrete act such as a Royal Commission, and then he resumes his judicial activities. The problem is quite different where you have both ongoing judicial functions and ongoing extra judicial functions, and both being performed at the same time, meaning, for example, on the same day. I am not saying "simultaneously" in the sense that two different jurisdictions are being discharged by the same person at the same literal moment of time. I should say it is a complicated area but the way in which this Court has approached it in Hilton v Wells as a matter of principle, leads to - - -
TOOHEY J: I am sorry, I did not want to divert you from your argument; I just wanted to understand what you meant by "at the same time".
MR MERKEL: It means, your Honour, for this purpose, that on a daily basis throughout the judge's judicial life, he or her will be called upon in addition to discharging the usual functions in court to discharge the intercept functions as part of or may be out of court time.
TOOHEY J: Yes, thank you.
MR MERKEL: Could I go to section 6D, which is the statutory scheme supposedly to overcome the concern your Honour Justice Deane and his Honour Justice Mason as he then was in Hilton v Wells and we say that the section in its present form probably gives rise to greater problems than those than that which it was intended to solve. Under the old Act an application could be made to judges of the Federal Court. There was no appointment, no designation, by holding office they were eligible in the sense of being a person who had power to issue the warrant. Under the new provision an:
"eligible Judge" means a judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force;
"Judge" means a person who is a Judge of a court created by the Parliament.
And then the procedure is that:
(2) A Judge may by writing consent to be nominated by the Minister under subsection (3).
(3) The Minister may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.
Then subsection (4) was inserted at the request of the Federal Court judges to ensure that the judge had the same judicial immunity in performing his functions as he or her would have had sitting as a judge. The 1977 Act in its original form did not have that immunity and that was requested and the second reading speech indicates that it was at the request of the Federal Court judges.
That is the scheme of appointment. I will come back to it in respect of how its operates, but the real problem that arises is that the offer and acceptance procedure and the provision that a judge is only an eligible judge for so long as the ministerial declaration is in force and the ministerial declaration itself can be for any period chosen by the Minister results, we say, in, putting it at its lowest, severely compromising the independence of the judge from the executive branch; putting it at its highest, it is putting the judge's tenure in respect of this public not personal function or private function at the whim of the executive Government and we say that it really undermines the stature of the judges and the institutional integrity of the court, but I will come back to that when I deal with it in our submissions.
The agencies that can apply for warrants under the Act, as with the category of offences in respect of which warrants may be sought, were expanded considerably from a customs officer in respect of a Customs Act 1979 narcotics offence. The agencies are defined at page 2 and include essentially the Australian Federal Police and the National Crime Authority, but eligible agencies can become authorised agencies under the Act if section 34 is complied with and that gives the Minister power to declare an eligible authority of the State as an agency. At the present time the agencies authorised to apply to the Federal Court Judge for intercept warrants are the Australian Federal Police, the National Crime Authority, ICAC New South Wales, the police forces of New South Wales, Victoria and South Australia, and the Crimes Commission in New South Wales. They have all been declared agencies under the Act and that is set out at page 234 of the removal book. It sets out the dates on which those authorities became agencies under the Act and they, of course, can apply for intercept warrants from the Federal Court Judge in respect of Federal and State offences.
So that one can see that the scheme of the Act has broadened and is very far removed in its area and scope of operation from that that was considered back in 1986. The manner in which applications occur is set out in Division 3 at page 44, that is Division 3 of Part VI, and again this is very different from Hilton v Wells. In Hilton v Wells there was merely a power of the judge to grant the warrant. Here the procedure is structured. Section 39(1) provides for:
An agency may apply to an eligible judge for a warrant in respect of a telecommunications service.
Section 40 provides for it to be in writing in subsection (1) although there are exceptional circumstances justifying a telephone warrant in section 40(2)(b). Section 41 deals with the contents of the application. Section 42:
A written application by an agency for a warrant shall be accompanied by an affidavit -
and an affidavit is required to be sworn to on oath.
It sets out in subsection (4) the matters which must be dealt with, including previous applications. Section 43 provides for particular information on telephone application. Section 44 permits the judge to require further information. I should indicate we will be returning to this, but we make the comment that, rather than just being an adjudicator, the judge in this aspect does become embroiled one step further in what is an investigative process, suggesting information that would be sufficient to justify the issue of the warrant or further inquiries or other steps, and that can be given on oath or orally as the judge directs.
The warrants under sections 45 and 46 relate to class 1 and class 2 offences. Consistent with the spread in the nature and scope of the Act, Parliament has been careful to ensure that the power is not misused and imposes standards or criteria in sections 45 and 46 which must be met and met in a way that requires the judge's satisfaction of the particular matters. The Act has moved from just reasonable suspicion or reasonable grounds for suspicion to being positively satisfied, so the judge in effect adjudicates upon the matters. The matters in 45(c) are whether:
there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;
(d) information.....would be likely to assist in connection with the investigation by the agency of a class 1 offence -
or class 2 offences. Then (e), having regard to particular pertinent matters and, in particular, the information may not be otherwise able to be obtained, the judge is then given a discretion in the widest of term whether to issue the warrant.
Section 46 is framed in the same way but has a more limiting discretion because the judge is required in 46(2), because the offences are less serious, to have regard to particular matters such as privacy, gravity of the conduct and so forth. We make no criticism whatsoever of the criteria. In fact, we rely on it because the judge, in determining the issue of a warrant which creates new rights and invades existing rights concerning third parties, is required to be positively satisfied in respect of particular criteria. Unlike other similar legislation in other countries, for example, the United States and even in New South Wales, this Act affords no opportunity at any point of time for anyone to come and contend - anyone who may have an interest, even a public interest - that the information the judge is being asked to act upon or the information the judge has acted upon was insufficient or false or suffered from material non-disclosure.
So that, in setting up what appear to be quite reasonable and proper criteria, Parliament has failed to do that which the judicial function is most suited to and which institutional integrity of the judicial power most requires, namely that persons affected by the exercise of power by a judge have an opportunity, albeit that the order was ex parte, at some point of time to review the exercise of power. Most civilised approaches to interception powers of this kind have provided, consistently with the important public interest immunity in protecting the integrity of the investigation at a point of time when the investigation is complete or there is no longer such a threat, for the individuals affected by such orders to review them.
But this act provides not only for no such procedure but by its structure virtually precludes any realistic possibility of such a procedure. I will return to that because we say that, in a sense, by being careful to stipulate criteria that the legislature has created what is truly a justiciable issue but they have not gone on to the next stage and created a vehicle by which anyone can raise it as a justiciable issue.
GUMMOW J: But would section 75(v) of the Constitution have any application?
MR MERKEL: Yes, your Honour. Section 75(v) would permit the issue of the warrant to be the subject of prerogative review but my complaint, your Honour, is that the right is a barren one because the circumstances that would enable its use are not provided for and indeed are almost explicitly excluded. The present case is a good example. Mr Grollo found out fortuitously, or in circumstances no doubt he would have preferred not to be in, that some material that was proposed to be used against him had been obtained on an intercept. It may have been a lawful or it may have been an unlawful intercept.
He subpoenaed the records and was met with public interest immunity claims. He sought information and was told that the AFP neither confirms nor denies. He sought third party discovery and the Commonwealth moved to - and this is after charge - the Commonwealth then moved to set aside, or the DPP, the application on grounds of public interest immunity. To this day the Commonwealth have never desisted or changed their position in respect of the public interest immunity in respect of this material so that in answer to your Honour, the Act works in a way, and I should say this combines with the Crimes Act which gives this real teeth, the Act works in a way to render the right conferred by section 75(v) nugatory.
I should say we are only here because, again in circumstances the applicant would no doubt rather not wish to be in, the material appeared in a hand-up brief, but those undoubtedly entitled to the protection of section 75(v) will never know because they are the ones in respect of whom no prosecution is brought whose privacy has been invaded without them ever knowing. We say that there may be a way to properly confer this power on the executive but to do so in this way on the judiciary is to compromise the judiciary in an unacceptable way but, more importantly, in a way that Chapter III does not permit.
I have taken your Honours to section 45(5) and (6). Section 48 authorises trespass on premises. I should indicate, and in a sense I said to your Honours, that the sting of the legislation is that it creates new rights, which is the right to intercept lawfully. Section 48 creates a right of trespass, and 106 at page 79 makes it an offence for anyone to obstruct a person acting under a warrant. I should say, although there may be some debate about it and this Court certainly does not have to decide the issue in the present case, since Blackstone eavesdropping has been regarded as a common law misdemeanour. We would say it certainly invades, even by interception, a common law right but there is judicial disputation about whether that is so or not with different jurisdictions expressing different views. But on any view the rights affected and the nature of them are very fundamental and have always been regarded as such.
BRENNAN CJ: Have they? I would have thought that only evidence obtained otherwise than in breach of section 7 would prima facie have been admissible.
MR MERKEL: That would require two steps. One is whether the evidence was obtained unlawfully and that requires a determination of whether eavesdropping is a common law misdemeanour and in Blackstone suggested to be indictable. The Full Court of Victoria has indicated in authorities we have footnoted that a decision that there is no common law right in England is open to some doubt and relied on Blackstone to suggest the contrary. English courts have taken a different view. So that for our present argument whether we be right or wrong on whether a common law right is invaded and whether the eavesdropping is otherwise unlawful, there may well be public policy considerations that will ultimately determine whether this should or should not be a nuisance. But the human right we are talking about, which has always been accepted as important in its own way as freedom of speech is privacy. With freedom of speech, if it gets to a common law right or not it is still regarded as a fundamental human right and privacy that is invaded in this case stands in the same category and has been treated by the courts and the legislature as such. The important point we make under this Act is that it itself gives the highest public policy possible to privacy over the telephone because it prohibits any dealing, any use, giving evidence in any circumstances other than those prescribed.
BRENNAN CJ: I understand that. It is derived from section 7. But if your argument depends upon the existence of some right, privilege or immunity outside section 7, for my part I would need to understand the basis on which the argument is put.
MR MERKEL: It does not require that, your Honour. For the purpose of our argument on incompatibility, it is sufficient for us to say that the nature of the issue of a warrant of itself creates new rights and imposes new obligations, it authorises trespass on property and it affects the right to privacy whether it be a right protectable in law or not. It is the nature of the activity, your Honour.
BRENNAN CJ: Is it any different from providing an exception to the prohibition contained in section 7, and is it - section 20, whatever the one is about dissemination of information?
MR MERKEL: It provides an exception to those sections, your Honour.
BRENNAN CJ: Does it do anything else in point of law?
MR MERKEL: It authorises trespass, your Honour, and it creates an offence of obstructing anyone in the execution of a warrant and we would - I will just find the footnote, your Honour - say that it authorises a common law nuisance, but I want to emphasise that it is not necessary for our argument to have to put it that high. That starts with Blackstone. If your Honours will just excuse me for a moment I will find the references where we refer to the common law authorities on it. It is at page 11 at footnote 22. Whilst there are recent authorities against the existence of such a right, could we refer your Honours to Haisman v Smelcher.
Your Honours, Haisman v Smelcher [1953] VicLawRp 83; (1953) VLR 625 discussed this very question at page 627 and their Honours' in dicta referred to Blackstone's statement. This is in a Full Court decision of Chief Justice Lowe and Justices Barry and Dean. At point 6 their Honours were referring to the "peeping Tom" situation and then after referring to Lord Goddard, said:
Eavesdropping is conduct not dissimilar from that involved in "peeping Tom" activities, and if eavesdropping is a common law misdemeanour, it would be difficult to resist the conclusion that appellant's conduct was indictable at common law. In that case, however, Lord Goddard LCJ stated that "nobody can be convicted of eavesdropping", and that so far as he was aware, "no instance can be found in the books of any indictment being preferred for this offence at common law". These observations do not seem to accord with Blackstone's statement that
eavesdroppers, or such as listen under walls and windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court leet: or are indictable at the sessions, and punishable by fine and finding sureties for the good behaviour -
and then their Honours say it is unnecessary to form a conclusion on that.
Your Honours, I want to emphasise that I do not need, for the purpose of my argument on incompatibility, to go further than the nature of the rights created and the nature of the rights potentially invaded, but the right to privacy, whether protectable at law or not, is certainly one which society places a high public interest in.
Sections 49 deals with the form of the warrant. Sections 50, 51 and 52 deal with telephone warrants. Section 52 is interesting because it is the only instance where the judge has any ongoing role. A judge has no power, it would seem, to revoke a warrant even if he or she formed the view that it may have been improperly obtained; because section 52 gives an express power of revocation in very limited circumstances. That is only for telephone warrants.
The provisions I have taken your Honours to can be contrasted to sections 9 and 10 which confer the same power on the Attorney-General - a matter of some current controversy - so that the Act confers the same power on the executive arm in respect of security offences and, we say, the judiciary in respect of criminal offences.
Can I take your Honours to Part VIII which deals with the keeping of records. I should say I have now, I believe, taken your Honours to all of the provisions that deal with the role of the judge. Once the warrant is issued, that role is completed. Section 79 is apparently a protective provision which is designed to minimise the harm that the warrant may cause, or the intrusion it may result in. It provides that:
Where:
(a) a restricted record -
which is the recorded conversations -
is in the possession of an agency -
and that would be one of the Commonwealth agencies and -
(b) the chief officer is satisfied the restricted record is not likely to be required for a permitted purpose in relation to the agency;
the chief officer shall cause the restricted record to be destroyed forthwith.
Now, the permitted purpose is not the investigation of the offence which led to the issue of the warrant; it really is any criminal investigation of the prescribed offences and the effect of section 79 is that, when the chief officer has, in effect, closed the file on the matter, then there would be a statutory requirement to destroy the record of the intercepted conversations. But, again, as with the existence of the warrant, it is a right not able, in any active sense, to be enforced by the individuals concerned because that is a fortiori a circumstance where they will not know these records exist. Of course, it could be a totally different matter that the record is being retained for.
Part VIII deals with the keeping of records and again, unlike counterpart legislation elsewhere, what is not required to be kept is the information upon which the warrant was given and that is the affidavit. Surprisingly, but lawfully it would appear, the material in the present case demonstrates that it appears to be common for the police, or the DPP, to shred the affidavit that is relied upon. We say that, again, in a real and practical sense, the judge not keeping a record and in practice not requiring one, the police being not required under the Act to keep a record of the very affidavit relied upon, itself is a further indication of no expectation of a right of review and if it exists, it is, for all intents and purposes, rendered nugatory.
The records at Part VIII really deal with the warrant itself and when one comes to Part IX which is at page 72, the limited records that are kept seem to be kept really for the purpose of reporting to the Minister and the Minister reporting to Parliament on the general functioning of the Act, so that Part IX deals with that general reporting function which is, in effect, not to scrutinise the manner in which or the basis upon which warrants are issued but really to look, in effect, at the effectiveness of them and that is dealt with in section 102.
The only protective provisions in the Act are those that relate to the Ombudsmen and that is at section 82. The Ombudsman does not report or relate to any individual concerned but does have powers to inspect documents, inspect records and report to the Minister on potential breaches of the Act. I am not sure that any of the reports that have been tabled which are part of the material produce any record of what has occurred in respect of the Ombudsman. That, in effect, is the Act itself.
It is interesting to note that judges of the Federal Court when reviewing search warrants under the ADJR have been critical of justices of the peace for not maintaining written records of their decision and the material they relied upon. Notwithstanding the obvious importance of that kind of matter, and I should say that is referred to by us at page 8 in footnote 16, Justice Fox and Justice Lockhart in Tillett and Crowley v Murphy, that is page 8, footnote 15 - what the material demonstrates in the court removed book is that the judges do not maintain records nor do, it would appear, the authorities. Neither are required to and we make the point that the absence of a record and the inhibition that produces on any effective review itself has been criticised when the search warrants have had to be reviewed by judges of the Federal Court.
In summary then, the legislation makes no provision for records of the application of the affidavit or any decision that is made or reasons to be given. The second major criticism we make is that there is no provision for any reporting back to the judge in respect of the warrant; he or she has no further role after the issue of the warrant. Thirdly, there is no procedure for review provided for by anyone in the public interest such as the Attorney or any individual that may be affected, and fourthly, there is no information provided to individuals who may be affected by a warrant, albeit after the investigation is finished, for them to review the exercise of the power.
The Commonwealth has helpfully handed up a book on similar legislation in other countries and we have prepared a short summary. I think the third document we have handed up to your Honours this morning should be headed, "Interstate and Overseas Legislation" and what we have done is used the legislation in the Commonwealth's book to indicate that the four matters which we have dealt with are dealt with carefully in legislation in New Zealand, the United States, New South Wales and Tasmania particularly. Again, I will not trouble your Honours on the detail of it but it is somewhat extraordinary, given the nature of the power exercise, that there are no records maintained, no provision for the judicial officer to have control over the warrant issued - - -
DAWSON J: What does all this go to, Mr Merkel?
MR MERKEL: Your Honour, what we are saying is that the nature of the jurisdiction exercised is so foreign and alien to the exercise by a judge of the judicial power that the provisions of the Act operate to impugn the integrity of the judge exercising his executive function as a judge and they undermine the stature of the judge, we say they undermine the independence of the judiciary and the independence of the judicial power and looked at in a totality, the cumulative affect of our submissions is that the coexistence of these functions in the one person at the one time is incompatible with the judicial power.
Can I just indicate in paragraph (b) we refer to a report back to the judicial officer. The original search warrant in Entiack in 1760 was ruled illegal by Lord Camden because it did not provide for the proper inventory and the procedures then required and always required at common law for in effect the court to remain in control of its order. The provision in the present case, of course, has the judge in effect unempowered or dispossessed of any function after the issue of the warrant. That is why I took your Honours to the one case where he can revoke a warrant. It is only where a telephone intercept has been authorised and the statute is not complied with by giving the sworn information the next day.
We say that, for example, if it came to the attention of the judge that a warrant was issued on the basis of a misrepresentation, the judge is powerless to do anything under the Act in respect of it. We say that to so circumscribe a judge can only be incompatible with the judicial power and it is that sort of problem that this Act gives rise to, so that the fundamental protections one sees elsewhere are lacking and it is the same point with the absence of review or information. Under New Zealand and New South Wales and United States legislation, at a point of time when the public interest is no longer threatened, and that may be a decision which the judge may make, a person is informed that their phones or conversations have been intercepted and then are given an opportunity to ascertain whether steps would be taken in respect of their rights.
In some instances it may only be the Attorney-General in the public interest, but here there is absolutely nothing, so that the consequence of all that is to make the judges of the court not exercise a jurisdiction alien to them as judges, but one that is really quite reprehensible because it requires them to act in a way which is quite incompatible with all the accepted principles and criteria by which judicial functions are carried out.
BRENNAN CJ: What is the proposition though at the end of the day, Mr Merkel? What is the implication of this? For example, can a judge under Chapter III not accept appointment as the chairman of a turf club that might have to exercise different powers or even chairman of a committee of stewards?
MR MERKEL: Your Honour, the answer to that is no. Our submission on incompatibility really - and I will be turning to this - picks up what this Court seems to have accepted as three criteria for the conferral of non-judicial power on a judge. Each of them, - but the kind of example your Honour has given me, in a sense, may not raise the issue because the judge is accepting that appointment in a purely personal capacity and it is not an executive government appointment, the turf club, but even assuming it was, it is and would be seen by the public to be a personal appointment, a private appointment because the judge has an interest.
If it were judge of a judicial tribunal, for example, the Racing Tribunal, even that would be compatible because it may be analogous to the AAT. Its hearings are in public, parties are represented, all the procedures that the judge is used to ensuring are carried out are carried out and a judge is admirably equipped to ensure that, but if the judge were asked to act, for example, in, I suppose I cannot go better than the present case, sitting there and adjudicating on intruding on the rights of individuals as part of the investigative arm of the NCA and simultaneously sit on the court, then one runs into the incompatibility question.
We really try to identify this. If I could now go to our written submissions. At pages 1 through to 7 we have sought to set out the pronouncements of this Court and also in the United States that seek to define in effect the reference point for what we have encapsulated in the concept of incompatibility. The earliest comment that we have referred to is Chief Justice Latham. We have emphasised the particular passages - that is at page 2 - from Ex parte Lowenstein. His Honour emphasises in that underlined passage, a point that we make here, it is the inconsistency of coexistence that gives rise to the problem. I should indicate that the joint judgment in Boilermakers at page 294 point 1 adopted what his Honour said as an appropriate criterion, or adopted what his Honour said with approval.
At page 3 we refer to what was said by his Honour Chief Justice Bowen and your Honour Justice Deane in Drake's Case, the notion of something being accepted in a personal capacity. We draw an important line of distinction between the turf club example and performance of duties under this Act as an eligible judge. In other words, they are public duties and public functions. We say this case raises no question touching upon what may be permissible in a personal capacity, but even in a personal capacity, your Honours indicated that that of course should not be "antithetical to the exercise of judicial power". But it seemed a common view in the majority and minority judgments in Hilton v Wells. Your Honour Justice Deane and Mr Justice Mason, as he then was, in the middle of page 3 - and I should say the passage that is cited there is at page 82 of the report. There are a number of independent matters. The passage we have emphasised in the middle of page 3 talks of:
an unavoidable obligation to perform as a designated person, detached from the relevant court, administrative functions which are unrelated to the exercise of the jurisdiction of the court.
I will be returning to that, but we say that the provisions of section 6D and the provisions that have the effect of requiring judges to deal with applications brought before them create unavoidable obligations to perform those administrative functions which, on the submissions against us, are unrelated to the exercise of the jurisdiction of the Court. We say that principle is not observed.
Then at the bottom of page 3 of our written submissions, separate and independent from that is a functional difficulty in that the function performed in both capacities should not be inconsistent with the judicial function and responsibilities. Then at page 4 of our written outline we have referred to the majority judgment in Hilton v Wells and we say that in the first underlined passage there is the question of independence and not conflicting. And in the last three lines there is the question of not being incompatible with the status and independence, or inconsistent with the exercise of their judicial powers. Then at page 4 to 5 we have set out a full quotation of her Honour Justice Gaudron in Jones v The Commonwealth because it is quite clear from what her Honour said in Jones that her Honour was concerned that the powers under Hilton v Wells raised serious questions. We say that the Act in its changed form makes even more pertinent and more direct the problems her Honour was adverting to.
Her Honour talked of the problem in Hilton v Wells, but then at page 5 her Honour set out the question of material as to how this works in practice and that is the matter that we have tried to address in our court book. Her Honour says again in the underlined passage at page 5:
Moreover the decision takes no account of the special nature of the powers conferred by s20 of the Act, or of the manner of their exercise. The powers relate directly to the process of criminal investigation, they are exercisable by reference to information on oath as to reasonable grounds for suspicion, and are exercised ex parte and in secret. They are arguably different from powers which are exercised by reference to more precise criteria, in public and by application of the rules of natural justice.
Her Honour says they:
raise an important constitutional issue - - -
DAWSON J: Are you seeking to reargue with Hilton v Wells?
MR MERKEL: No, your Honour. We say the issue decided in Hilton v Wells, as was made clear by this Court in Jones, related to the Act as it then stood. Our submissions are directed entirely to the Act in its present form and we say that - - -
DAWSON J: What are the significant differences?
MR MERKEL: The significant differences, your Honour, we deal with in great detail but the method of appointment has changed completely.
McHUGH J: But that is against you, is it not?
MR MERKEL: No, your Honour. We say that this is a case of, in effect, falling out of the pot into the fire. To avoid the problem of having all judges qualify, they have substituted an appointment at executive whim, which is more compromising of judicial independence. This is something dealt with in the United States cases, that there is no criteria for appointment or removal or revocation. The appointment is at executive will, not for a term, it is so long as the declaration remains in force - the ministerial declaration. A judge may consent and the executive government may believe, or be seen to say, "No, your record is soft on crime, we will not appoint you." There are a variety of reasons why it is obvious that judicial appointment of judges to perform public functions should never be at executive whim and without criteria for removal or change. This Act provides not only for - - -
DAWSON J: But this is splitting hairs, is it not? The matters in relation to which you have been addressing us are matters which were also present in Hilton v Wells. The mere fact that the appointment is in a different way does not alter - - -
MR MERKEL: Well, no your Honour, because Hilton v Wells left open the question of whether the judges could, for example, decline to perform the task. I am not sure whether it was left open or not, but the structure in Hilton v Wells may be that if a police officer or a customs officer came to a Federal Court judge, the Federal Court judge may have declined to perform this task. But the situation under the new Act is quite different. The Federal Court judge gets appointed as persona -
DAWSON J: The only relevant matter of incompatibility is the matter of appointment - is that what you are saying?
MR MERKEL: No, your Honour, there are four matters which I will come to in my submissions, but the first is the compromising of the independence of the judge. That starts, your Honour, at page 9. The second is the point raised by her Honour of secret ex parte participation in the criminal investigation process. This is not just a Customs Act, a discrete area, this is the whole ambit of the criminal law which can involve, we say, questions of degree. The third, your Honour, is the incompatibility arising from the conflict between discharging judicial duties at the same time as these duties. These matters were not even considered in Hilton v Wells and -
McHUGH J: I know they are not considered but they are surely implicit in the reasoning process. They existed under the legislation and they exist under the present legislation. You have to grasp the nettle, I think.
MR MERKEL: Well, we do, your Honour, in our written submissions and the nettle is that this issue was not argued in Hilton v Wells and what was considered in Hilton v Wells, your Honour, was an isolated customs intercept activity which, on its face, would appear to be exercised in a modest form. When your Honours get taken to the statistics in the present case, this is involving the judiciary in the whole ambit of State and federal criminal law.
DAWSON J: But, even if it was a modest example, the quality of the function which the judge is required to perform is no different in Hilton v Wells from that which you are referring to here. It is only more so.
McHUGH J To use Justice Dixon's expression, they are distinctions without a difference.
MR MERKEL: Well, your Honour, if I can answer that by saying we would say we agree with that, but we say that there are distinctions between the present case and Hilton v Wells that would make the present case a truly important and appropriate vehicle for determining this issue. There was no argument in Hilton v Wells. We say it raises -
McHUGH J: This issue being?
MR MERKEL: The question of incompatibility in the discharge of functions under this Act with the holding of judicial office. We have a lot of points to put, your Honours, and many of them do not arise out of Hilton v Wells. Some of them were no different to Hilton v Wells but we need to say at the end of the day that, good or bad, the accumulation of them all makes this just simply incompatible and not a function to repose in the judiciary in the manner it is reposed in this Act. It may be correctable, but not in the manner in which it has been given in this Act.
BRENNAN CJ: But does not Hilton v Wells, apart from section 6D, stand in your path in the sense that the question that was there decided was that section 20 of the Act was a valid enactment of the Commonwealth? Now, that was in the context, of course, of the unamended Act. The Act has now been amended by section 6D. How do you seek to outflank Hilton v Wells except by reliance upon the amendment introduced by section 6D?
MR MERKEL: Your Honour, I suppose in a number of ways: we say, your Honour, that incompatibility is not just a question of black and white principle. It can involve questions of degree so that, just by way of example, we will - - -
BRENNAN CJ: Well, granted that that is so, is there any variation in the degree introduced by anything except section 6D?
MR MERKEL: Yes, your Honour, the scope of the legislation and its capacity to interfere with the proper performance of judicial functions is now a real issue.
BRENNAN CJ: It is not a question of a real issue. Has that capacity to interfere, as you put it, changed?
MR MERKEL: Yes, your Honour, because under Hilton v Wells the only offence for which an intercept would be issued would be the narcotics importation offence. We had no statistics, nor did the court have any and there are still, as far as we are aware, none available to show whether that happened five times a year or ten times a year, but the notion of that interfering with the discharge of functions on the court, as such, was not only not considered but may have been said to be illusory. Now, your Honour, because the judges are issuing something like over 500 intercept warrants a year, that may be of the order of 20 each, because there are some 500 or 400 prosecutions a year and because this whole activity is expanding, it would appear exponentially when one looks at the figures, the capacity to interfere with the discharge of judicial functions is real. The present case throws up that example but we endeavour to deal with them on an item-by-item basis.
There are problems, for example, of a judge in an executive capacity being under a duty enforceable under the Crimes Act not to disclose, yet in a judicial function being under a duty to disclose. The eligible judge in the present case was in that precise circumstance and the overlap of jurisdiction is not illusory because it is in the Federal Court that search warrants are reviewed; proceeds of crime proceedings would be brought; all sorts of federal executive activity could be the subject of AD(JR) review: Federal Police, National Crime Authority, serious revenue loss to the Commonwealth is all the original jurisdiction of the Federal Court in a civil - and it can come in a criminal jurisdiction. So that the extension of activity under the Act and the jurisdiction exercised by the court are now in a situation of real conflict.
McHUGH J: But these seem to be arguments for re-examining the validity of the decision. They do not seem to affect the principle of it. Take a narcotics case; if there any real difference, apart from 6D, in relation to the function of a judge today than there was when Hilton v Wells was decided? Is not your problem, in trying to outflank Hilton v Wells, that at pages 73 and 74 in the joint judgment, their Honours just swept away the argument that there was anything incompatible.
MR MERKEL: With respect, their Honours swept away incompatibility, but not an argument to that effect, because it was not argued, your Honour.
BRENNAN CJ: If they swept it away, it is an authority for the proposition that it was sweepable away.
MR MERKEL: Yes, their Honours swept it away and said that they did not regard the intercept function, as such, as incompatible with the exercise of judicial office. Her Honour, in Jones made a number of comments which we can only adopt as to why in respect of such an important issue as Chapter III and separation of powers, and it has ramifications far beyond this case - - -
DAWSON J: She seemed to think that leave to reargue Hilton v Wells would be necessary.
MR MERKEL: No, I think she said, your Honour, that it was not necessary. I could stand corrected on that.
DAWSON J: I think it is sort of midway in between.
MR MERKEL: Her Honour said in the first paragraph:
In so far as the plaintiff seeks to argue that s 20 of the Telecommunications (Interception) Act (Cth) (the Act) is invalid in that it purports to confer upon judges of the Federal Court a power, the exercise of which is incompatible with the discharge of the duties of judicial office, the plaintiff does not require the leave of the court to reargue Hilton v Wells
We say that, with respect, Hilton v Wells may well be relied upon by our opponents as persuasive authority against us, but it is in respect of a different Act, because that is precisely one of the reasons given by your Honours for not reopening the question in Hilton v Wells was that the legislation has now changed, and of course, it has changed in a very dramatic form. We say that strictly speaking, the fact is that Hilton v Wells is authority as stated by your Honours on the old Act. We do have to meet the fact that in that majority judgment three members of the Court, without argument, considered that the function was incompatible. We produce evidence; produce a different Act; and ask the Court to consider the question of incompatibility on its merits.
It is not a case where one is looking at whether there should be an operation of stare decisis in respect of the civil law - this goes to what the United States and what your Honours have been regarding as one of the threshold principles in protecting the separation of powers in a democratic society. We say it would be a sad day if those issues were accepted as operative in a way considered by a court under an Act now no longer applicable; substantially changed and without argument. I think something similar came up in Boilermakers, I should add. In argument I think Mr Eggleston, who was arguing for the applicant, was asked by the Chief Justice Sir Owen Dixon, "Why should the Court after so many years of history, some 20 or 30 years of settled learning and practice, seek to change", and the short reply was that the Court must determine what the Constitution requires and past conduct cannot affect that. We say it is too important a matter to be not examined on its merits under the present Act and in the present circumstances we have produced to the Court.
McHUGH J: You say the distinction here is that it is put against you that there is a precise authority that it is not inconsistent with - it is not incompatible with the office of a federal judge to confer on that judge as persona designata a power to issue warrants of interception.
MR MERKEL: I accept what your Honour says. It is an argument against us and we have to deal with it and persuade your Honours that that approach, if not wrong when stated, we would say - if pushed to that, we would say it was wrong, but we would say that it is wrong in respect of the present Act, but we rely very much on what your Honours said in Jones because your Honours did say that Hilton v Wells is recent but its importance as an authority in the future has been significantly reduced by amendments made in the last week to section 7 and 20.
Now, Hilton v Wells as an authority on the construction of those sections cannot stand once those sections have been totally revamped and we would say that we would rely on that passage as indicating that its importance as an authority is reduced in respect of this question, but that is a matter for this Court to consider on the basis of the argument it hears and the evidence it has before it, but we say that Hilton v Wells is helpful to our opponents but it is not in any way destructive of the points we wish to make.
GUMMOW J: Mr Merkel, could you assist me for a minute? Is there any provision in the Act as it now stands dealing with the consequences of disclosure of the material in the affidavit under section 42? I appreciate there is section 63 as to intercepted information, but the information in the application, what does the Act say about disclosure of that or is it silent?
MR MERKEL: It is silent, your Honour. It just says nothing about it. It is required to be brought into existence for the application and not required to be retained after. There are two comments though we would add to it. It is given in private so therefore is probably in the circumstances confidential. The executive officer would be obliged both under the statute and the law to use it for the purpose for which it was given and no other purpose, which is to issue the warrant, so there would probably be a civil law breach. It is the subject of public interest immunity claim, which may be saying no more than it is really confidential and therefore would be protectable under principles of public interest immunity, and the real sting, your Honour, comes from the provisions of section 70 and 79 of the Crimes Act.
Those sections make it an offence for a Commonwealth officer to -for example, 70 makes it an offence for a Commonwealth officer, of which an eligible judge would be - it is given a wide definition in the Act as anyone carrying out services for the Commonwealth - to publish or communicate information without authorisation to do so, and these are the difficult words, "which it is his duty not to disclose".
GUMMOW J: I am just considering the position of the judge who ascertains something in the course of dealing with the application in the affidavit on 42 which might then be material in later litigation on an issue of possible disqualification.
MR MERKEL: Yes.
GUMMOW J: And the making known of that circumstance in his or her purely judicial - - -
MR MERKEL: We deal with that, your Honour, and we say that that gives rise to the real problem, the conundrum that the judge in his or her executive hat is under a duty enforceable under the criminal law not to disclose; under the judicial hat is under a duty to disclose. It is only when one gets into the distinctions without differences that one can say really there may be only one hat here. But for the purposes of incompatibility, we are saying that there are two hats. The judge cannot say "I'm under a judicial duty". The law does not permit that under this legislation, because the judge is not wearing a judicial hat when he receives this information. It is a serious problem.
BRENNAN CJ: The thing is: he cannot put the judicial hat on, can he, if he is already compromised, so to speak, in relation to the performance of the executive function?
MR MERKEL: Your Honour, he cannot put the judicial hat on, and we deal with this, but that takes us into the most difficult ambit of all. It is all very well for a judge to be the judge before whom a challenge to the intercept warrant is returnable not putting a judicial hat on. But that is not the situation that arises in the real world. The real world is that these intercepts are issued in respect of a range of activities which may go far beyond anything the judge is even aware he's determining and evidence that he can even recall he has acted upon, and yet at some later point in court, as has happened in the present case, we have got no doubt that his Honour had no idea he was possibly compromising himself by entering upon and adjudicating on the very facts, very kinds of issues or matters which he had issued an intercept warrant on.
Even worse, and we say at the heart of the problem, the most fundamental duty is that of disclosure, and he is prohibited from doing so. It may well be that he is prohibited from going to the Chief Justice and explaining why he ought not to sit on the case. We say that recent learning would suggest that, contrary to what is put against us - - -
DAWSON J: He does not have to explain to the Chief Justice, does he?
MR MERKEL: Your Honour, I had in mind some of the authorities our learned friends were relying on. Not in this Court, your Honour, but in the Court of Appeal apparently there was a practice that when one - this is referred to in some of the decisions, that if a judge thought it was inappropriate to sit on a case, he would approach the Chief Justice and indicate that. But we say there is a vast distinction between personal matters or reasons for not sitting and reasons that bring you into conflict with fulfilment of the judicial duties. It is all very well to say that that is what the judge does before he knows he is taking the case, but the reality is it is more likely to occur when a judge is half-way through a case. It may happen at any time: before, during and after.
If JRL is to be given the real operative effect that we say Justice Mason, as he then was, indicated and has been acted upon since, in this area which is the Livesey/Polites area where there are questions of whether there is a real compromise - not whether the judge thinks he might be compromised, but whether as a matter of objective determination there is a reasonable apprehension - that is an issue that is not a clear-cut issue by any means and one that would be fully argued. If the judge made a wrong decision of the Federal Courts - could be subjected to mandamus, as happened in Polites where the commissioner disqualified himself and was mandamus in this Court and this Court issued a mandamus that he was required to sit because he was wrong in not sitting.
Now these are real issues, it is all very well to imagine the very circumstance that will not arise, namely that the judge is asked to sit on his own intercept warrant, that will never happen. Our case is that it is unlikely to happen, it will always happen in collateral proceedings and these warrants are issued in the very court where collateral proceedings are going to arise, both in respect of the criminal aspect and related civil litigation.
BRENNAN CJ: Now, Mr Merkel, your argument must fall, must it not, into two categories. One is that accepting Hilton v Wells there is a statutory amendment which distinguishes the old statute from the amended statute. The second is that irrespective of the result arrived at in Hilton v Wells the factual situation has now been demonstrated to have changed to such an extent that the constitutional conclusion in Hilton v Wells should be revisited. Do you not need to take us that far in order to open the doors, as it were, to a consideration of these factual matters because they do not depend on section 6D at all?
MR MERKEL: No, your Honour, section 6D is but one of four elements. Your Honour, we would say - I think what your Honour puts is correct because within the first element is what we would say the changed legal and factual circumstances require this to be considered afresh and Hilton v Wells does not assist a great deal in that respect. If we are wrong then we have to revisit Hilton v Wells but on the present Act and the present facts.
McHUGH J: I am not sure you have to go that far because the central issue in Hilton v Wells seems to have been whether or not section 20 conferred a power on the Court or on a judge. That was the issue, the real issue, so far as I can see from the argument and, therefore, what was said at pages 73 and 74 about incompatibility was not part of the ratio of the case, it was an obiter dictum and therefore it was not central to the decision, having regard to the way that the argument developed. If that is so, you do not seem to argue - you seem to accept, in this case, that this power is conferred as persona designatae but you say it reflects or impugns or interferes with the judicial function nevertheless.
MR MERKEL: Yes, your Honour. In an awkward way I have been endeavouring to say that, but not as your Honour has put it. There can be no doubt that this is not an empty or unrealistic question because this area of involvement of the judiciary in the executive arm of criminal investigation started with search warrants which were well understood and known and had a certain protectoral framework in the 18th century, but now this has extended to intercepts, it has extended to fingerprinting, it has extended to blood sampling, so that with modern technology and modern criminal investigation combining, it is involving the court in an unprecedented range of activity and we say that needs to be confronted and this case confronts it very starkly.
DAWSON J: I am not sure where that argument takes you, that the exercise of the functions as persona designata interfere with the exercise of judicial functions, therefore what? Therefore Chapter III makes invalid - - -
MR MERKEL: No, Chapter III does not permit the inroad. In other words, it starts off in this way, your Honour: Chapter III requires complete separation. Judges should not perform in any capacity non-judicial functions. The rigidity of that doctrine gave away as was identified in Lowenstein and adopted in Boilermakers. The rigidity of that function was watered down to allow judges to accept non-judicial functions but subject to the kind of matters your Honour identified in Hilton v Wells, it not comprising the stature or the independence of the judge or not being inconsistent with the performance of judicial functions.
There seems to be no quarrel in this Court that they are the criteria which are to be acted upon. The American Supreme Court puts in effect all of that under the umbrella of protecting the integrity of the judicial process or of the court. How it is put the same issue arises, but we start, in answer to your Honour, not from a point that it is permissible to have judges exercising non-judicial power, we say it is impermissible but as an inroad in a modern world and to avoid the doctrine being applied with a rigidity that it ought not to have, it is a permissible inroad that needs to be justified and it fails once it gets to the risk of challenging the integrity of the judicial power, but we say that it is an area jealously guarded.
DAWSON J: Does that mean that a judge in exercising those functions is invalidly exercising his functions as a judge at the same time?
MR MERKEL: No, your Honour, the invalidity, as I understand it, goes to the executive appointment or the executive functions.
DAWSON J: Why?
MR MERKEL: They are invalidly conferred because they impinge upon the doctorate.
DAWSON J: Perhaps the judicial functions are invalidly conferred.
MR MERKEL: Your Honour, if one put the reverse, if one had an executive officer of government appointed as a judge and was required to perform both functions simultaneously, one would have to go. It may well be that your Honour's example would apply, that the appointment - it is not primacy, it is separation of power.
DAWSON J: Perhaps both functions are invalidly performed. Is that what you suggest?
MR MERKEL: Not in the present case, no, your Honour. We are challenging the validity of the executive function. If it is invalid, then the problem of the judicial function does not arise.
DAWSON J: Chapter III operates on judges, not on executive officers.
MR MERKEL: The invalidity, your Honour, goes to the source by which the power is conferred. If it impinges on the judicial function, the impingement is invalid, and the judicial function is retained.
TOOHEY J: But the judicial function is not under attack, here.
MR MERKEL: Sorry, your Honour?
TOOHEY J: The judicial function is not under attack.
MR MERKEL: No, no.
McHUGH J: Well, where does that leave Justice Heerey when he sat on the Full Court? If the issue of this warrant was incompatible with the judicial function, what effect does that have on the judge sitting on the Full Court in these matters?
MR MERKEL: If it were suggested that there was a reasonable apprehension of bias by him doing that, then that would be subjected to the usual principles of waiver or appeal or whatever.
McHUGH J: Yes, but leave aside bias. You seem to be arguing that this conferral of this warrant jurisdiction is, itself, incompatible with the judicial function.
MR MERKEL: It leads to incompatibility, your Honour. What actually occurs still has to be determined ultimately within the category that we are concerned with. If it is exercise of judicial power, one has to deal with that according to the principles that govern judicial power and one can only appeal or seek to review a decision by a judge in those circumstances and that would be governed by apprehension of bias. But we go back to the anterior problem. The executive power ought not to be conferred if it has that capacity to interfere.
DAWSON J: It ought not. But, are you saying the legislation is beyond power?
MR MERKEL: Yes, your Honour, yes.
DAWSON J: How is it beyond power? It would be beyond power to appoint a judge in a position where functions he was asked to perform were incompatible with the judicial function and that would be because Chapter III does not confer the power to appoint a judge in those circumstances. But, that is not this situation. Chapter III contains the power to appoint judges and it is a circumscribed power.
MR MERKEL: As members of a court.
DAWSON J: Yes. Well, now the executive power is something different. There is no circumscribing of that.
MR MERKEL: No, your Honour. The executive power is something different and because it is different it is separate and under the doctrine we say, simply, that executive power can only be conferred upon judges in the event that it does not compromise their judicial function. That is a constitutional doctrine accepted in Australia and in the United States; accepted by your Honours in Hilton v Wells. The question - - -
GUMMOW G: Do you not have to impose some restraint of some sort in the relevant power of section 51? Is that not what you are coming to?
MR MERKEL: No, your Honour. That is the very last line, if all else fails, but the first line is section 51 is subject to the Constitution and the Constitution itself enshrines the separation of powers doctrine, so that the power under section 51 cannot defeat the doctrine itself. But if for some reason - and our last position in our argument is this - we were right on the substantive complaints about this being an unreasonable conferral of power, for example unreviewability, but wrong on our incompatibility, we would still say it fails under section 51 as not reasonably and appropriately adapted to the telecommunications power, but we put our primary argument on the basis of incompatibility. But there is that potential for difference.
We would say that we have set out the authorities in the first part of our submissions which seem, we say, to put the principles that we are stating as well established, that the legislation itself would be invalid if offending the criteria set out by members of this Court. Page 6 of our written submissions we refer to the American doctrine and the first reference is in Richardson , Chief Justice Cardozo, and his Honour put it very simply in the underlined passage:
The prohibitions of the Constitution are not to be evaded through the form of accepting as an individual what the judge must reject. At least, that is so when what is done is official and not personal in its quality and incidents.
And we draw an important distinction between what is done in one's role in a public capacity as against a personal capacity.
BRENNAN CJ: But that goes far further than anything that has been said in this country. That would exclude a judge sitting on the Administrative Appeals Tribunal, the Trade Practices Tribunal, and so forth.
MR MERKEL: No, your Honour. I think his Honour would accept that there are functions which a judge can accept provided they are not incompatible. In In re: Richardson his Honour was considering the appointment of a judge, in effect, as a roving Royal Commission into the investigation of whether a criminal offence had been committed and his Honour in that hat became a true inquisitor - not a Royal Commission as we would understand it, but actually working with the investigative arm with the District Attorney. In effect, it was like an extended District Attorney function and that did not coexist with the judicial function. So the totality of that judge's activities - and I should add, his Honour said they were not perceived by the public to be non-judicial activities, he was judged throughout. His Honour was really saying in that way, if it is incompatible to accept that function as a judge, that is the "must reject", then you cannot accept it as an individual. We say this is such a case.
McHUGH J: What about Justice Jackson prosecuting at Nuremburg while he remained a member of the United States Supreme Court? Was his appointment as prosecutor at Nuremburg inconsistent with his appointment as a judge?
MR MERKEL: I would rather your Honour gave me a gentler example such as prosecuting in Washington. Obviously the Nuremburg extension may have had a different connotation, both in perception and reality. But if your Honour said to me "prosecuting in Washington", the answer would be much easier. In effect, that is exactly what Judge Cardozo was talking about, that the judge had moved from judge to prosecutor and that was unacceptable to be done at executive command and it was unacceptable for a judge to allow the perception of the judiciary to be employed in that role; very much the kind of sentiment that we say underlies what we are putting in the present case.
The second decision is a recent decision of the United States Supreme Court which touches upon these issues in a much gentler way. It is Mistretta v United States where their Honours, again in the underlined passages, adopt a principle very similar to that which we are putting of compatibility. At the top of page 7, the overriding principle of their Honours is whether the "particular extrajudicial assignment undermines the integrity of the Judicial Branch". There is no doubt that opinions differ. The Circuit Court of Appeals dealing with Mistretta, which was an appointment by the President of members of the judiciary to a judicial sentencing commission in the judicial branch, the Circuit Court of Appeals said it was unconstitutional, the Supreme Court said it was not.
McHUGH J: What about the legislation in this country that authorised Sir Owen Dixon to be minister in Washington and Sir John Latham to be ambassador to Japan. Was that legislation invalid? I mean, there they were members of the executive.
MR MERKEL: The answer is no, your Honour, because they were not doing both at the same time. But if he was ambassador to China and also Chief Justice of the High Court, one can see the problems that could arise.
McHUGH J: What about when Sir Owen Dixon was chairman of the shipping board during the war?
MR MERKEL: The reality is, your Honour, that one gets into problems in different circumstances, but if, for example, this Court was charged with ultimate responsibility of taxation and a judge of the Court was involved in a branch of the Taxation Office or Commissioner of Taxation, one gets the most obvious example. A further one gets removed from the business of the Court, the less obvious the examples become. But this case does not really have to raise those issues, because certain assignments accepted in a personal capacity really stand, again, apart. If his Honour was appointed as an ambassador or heading a statutory corporation, it was not as Chief Justice or as a Judge; it was as an individual. That is why the cases distinguish between what one may do in a personal capacity and what one does in an official capacity. We are only concerned with the latter.
Secondly, the problem of coexistence is central to the issue we are confronting. We have had Federal Court judges heading ASIO and the National Crime Authority. Many would debate, but we do not have to do so now, whether that itself ought not to occur. But we do not have to worry about that because, if the head of the NCA then decided to sit on the Federal Court, simultaneously we would have the problem that arises in the present case. That is not done, and in this sense this legislation is unique because it requires both commingling and coexistence in a way that we say offends the doctrine.
We can live with most of those examples with little discomfort but without having to accept them, your Honour. We think that maybe the doctrine really starts to lose its force when it becomes muted by convenience or gives way to convenience such as in the present case. I should say, your Honour, on that point at footnote 13 there is an article which discusses all of the matters your Honours put to me, The Wig or the Sword, and really deals directly with this issue and does give all the examples such as Sir Owen Dixon and numerous others of judges having two appointments. I will not take your Honours to it but it really is a discussion of the whole of the problem.
There is a typographical error there. It is not blight of the Australian judges,it was plight of the Australian judges.
BRENNAN CJ: Mr Merkel, you wish to avoid the situation of the National Crime Authority and so forth but you have to ultimately be able to postulate some criterion for determining what it is that it incompatible with the performance of judicial office and which is on that account prohibited to the legislature conformably with Chapter III and that which is not.
MR MERKEL: Yes, your Honour, we say our - - -
BRENNAN CJ: Well, you cannot really avoid this by saying we will eliminate the consent provisions or the judge provisions from section 6D but let the Governor-General appoint only judges.
MR MERKEL: No, your Honour, there are four aspects which we deal with separately, your Honour. The first is the compromise to independence, the second is the secret ex-parte participation in the criminal investigation process, the third, your Honour, is the conflict of the kind I have raised between discharging the judicial function and the executive function, and the last, your Honour, is that there is not separation which is a requirement. The de jure separation is illusory and the de facto separation is non-existent. We say that separately, but more importantly cumulatively, those factors result in incompatibility.
TOOHEY J: That is not really brought out by the declaratory relief that you seek, is it? You look at page 20, volume 1, you are seeking a declaration that:
provisions of the Act providing for the vesting of non-judicial investigative powers:-
(i) in a Court.....are unconstitutional.
In a sense you accept that non-judicial investigative powers can be conferred on a court under the Constitution given the sort of, what you would describe as, safeguards.
MR MERKEL: Sorry, your Honour, it was my omission. I had a note which I overlooked, but it was to refer your Honours to page 57, which is the question - the way in which this matter got here was that there was a case stated by Justice Jenkinson for the Full Federal Court which was removed into the High Court and the question on the case stated - the case removed I hope deals with what your Honour raised with me.
TOOHEY J: Yes, I appreciate that, but the declaratory relief sought before the case was stated really is in terms rather more broadly than you are now contending for.
MR MERKEL: We would say, your Honour, that it is - - -
TOOHEY J: By that I mean that you seem to accept that non-judicial investigative powers may be conferred on a court given certain safeguards such as open hearing, representation and the like.
MR MERKEL: No, your Honour. The furtherest we would go in our concession is that intercept powers may be conferred on judges but not at the same time as they are functioning or discharging judicial office and I gave the NCA example as one where there is - and I only say may, I do not say it is. We do not have to concern ourselves with that, but the problems of section 6D, 6H and Divisions 3 and 4 of Part VI is that the very qualification that entitles them to be eligible judges is that they are judges of the Federal Court and the 31 judges who are eligible judges are all discharging judicial functions.
We could say that it may well be, using the NCA example, that the government could set up a - call it a judicial intercept commission which is headed by a judge and it was assisted by lawyers and it was an agency through which intercepts occur and there were proper processes for it but the judge was not sitting simultaneously on the court. It is the unnecessary compromising of the integrity of the court which gives rise to all of the problems. All of our submissions on this Act would not apply to that situation, although others may say it compromises the integrity of the judicial office to be involved in those activities, but that may depend upon the kind of protections to the discharge of the function. We say it is the cumulative effect, not just one point.
BRENNAN CJ: Mr Merkel, one of the factors upon which you seem to be relying is the question of fact, is it not: the extent to which the judges of the Federal Court are involved in the issuing of warrants, and the extent to which the issuing of the warrants may therefore affect the availability to exercise their judicial functions?
MR MERKEL: It is the capacity of that, yes, your Honour.
BRENNAN CJ: Do I understand your criterion to be no more closely woven than this, that the conferring of the power contained in this Act upon the judges of the Federal Court who are eligible judges is inconsistent with the due performance of their judicial duties?
MR MERKEL: It is inconsistent with the simultaneous power, or coexistence of the power, to perform their judicial duties, but your Honour - - -
BRENNAN CJ: What I am trying to get at is what is the criterion which you are articulating and which nonetheless requires a consideration of a question of fact in order to apply it?
MR MERKEL: I think, your Honour, the way in which we put it is that we rely on the facts that we have placed before the Court to - - -
BRENNAN CJ: I appreciate what you are relying on, but we need to see if it is possible to articulate a principle. Do you propose to articulate a principle or do you propose to use some general word and say, "These four circumstances that we rely on here bring us within that general word"; of embarrassment or inconsistency or however you put it.
MR MERKEL: Your Honour, the underlying facts demonstrate that the nature of the activity has the harmful capacity, or carries the unacceptable risk. Because, when the legislation is enacted, one does not know how it will work; it cannot be valid or invalid just because of the manner in which it works. One has to look at the risks it creates. We look at it to show that the risks it creates are real and not illusory.
BRENNAN CJ: I am listening to see if I can hear some notion of principle coming through.
MR MERKEL: I think, your Honour, the best way I can state the principle is it seemed to us that there are three different aspects: inconsistency relates to function; there is stature which relates to public perception, and there is independence which relates to separation and perceived separation. Now, they are different matters. What your Honours put to me relates purely to the question of the functional approach. On the functional approach, your Honour, we look at the nature and extent of the criminal activity and the nature and extent of the court's activity and say there is inconsistency in the two coexisting simultaneously.
When we look at independence, we look at the Act and we look at the reality, a different set of facts and show that the appointment and its termination and lack of conditions of service - I think I can do no better than cite your Honour in the article, I think, on Courts, Law and Democracy when your Honour said the twin pillars for the separation of powers for the judiciary are independence and conditions of office. Adopting that criterion, we say there is no independence and no conditions of office and that arises from the Act and as a matter of fact. We look at the facts discreetly to establish that.
Then, we go to the stature which, again, is a different question but draws on the same facts and the stature demonstrates that involvement in this process, in this way, on these terms with these lack of protections can only undermine the stature and public perception of the judiciary when the facts are truly known. Now, they are the three yardsticks, if I can put it as that, which this Court has given us in Hilton v Wells and in Boilermakers and in Lowenstein. They seem to be consistent with the yardsticks in the United States under the heading of "Undermining the integrity of the court". Any more precise than that, your Honour, one is, in effect, trying to develop into A doctrine that which has to be decided on more general principle, because the circumstances where this issue arises is so various that it is very difficult to try and state a rule that might be too wide and then catch what no one intended to catch. That is the answer that we would seek to give your Honour.
Going to page 8, we have set out, and I will not take your Honours to it because I have already taken your Honours to the sections, the essential elements of the Act. Could I go ahead to paragraph 10 at page 9, which - I should say, your Honour, I have not taken your Honour to the manner in which appointment occurs. It is at pages 47 and 49 of the court book, but the Chief Justice offers to each new incoming judge the opportunity to consent. That consent is conveyed to the Attorney-General. The Attorney-General accepts it or rejects it without criteria and there is no criteria for revocation and as a result there are 30 out of 35 eligible judges on the court in 1994.
Paragraph 10 raises a more delicate matter at page 9. Your Honours will see at pages 45 to 47 of the appeal book there is a reference in paragraph 26 to the judges who have been appointed and the process I have just described to your Honours starts at page 46 through to 48 and paragraph 26 refers to a confidential exhibit. Could I hand up a copy of that to your Honours. I should indicate to your Honours that the confidential exhibit and the fact that it must remain confidential itself indicates the undermining of the process. This is a confidential exhibit because the requirement has been that the judges who are eligible judges not be identified and that the exhibit as to the break up between registries of the judges in so far as it could disclose the identity of judges from smaller registries was required to be itself a confidential exhibit.
TOOHEY J: Do we really need this document?
MR MERKEL: Your Honour, I suppose its existence is one of the problems, that so secret is not only the activity but the very identity of the persons who carry out the activity is not to be disclosed. We will take your Honours to passages, particularly in Canada, about the unique importance of a judge performing a role or being known and seen to perform a role in public.
BRENNAN CJ: What is removed here is a stated case. Do we go beyond that?
MR MERKEL: No, your Honour, but the stated case, your Honour, is that not only is the activity secret but the persons engaging in it is also to be kept secret.
BRENNAN CJ: Do you need anything from this document apart, at the most, from the figures in the last line?
MR MERKEL: Your Honour, there is, without breaching the confidence - it shows your Honour the extent to which civil litigation in a registry will be required to be determined by an eligible judge from the same registry; duty matters and urgent applications. In other words, this is not a court where there may be one or two eligible judges and 30 or 40 judges performing judicial functions. This shows the extent to which there is an overlap in registries and to that extent it is relevant.
It is part of the material we rely upon, your Honour, and we say it does give some important indications of how the problem is a real one. I only draw your Honours' attention to it. I will not take it any further than that. We would say that the point we make in paragraph 10 is that the very identity of the judges being kept secret is a unique circumstance. This is not a national security matter. We say that circumstance in itself gives rise to some apprehension.
BRENNAN CJ: Mr Merkel, with a view possibly to returning this document, would it be possible for you, without breaching the requirement of confidentiality, to refer orally to a situation in, say, one registry, by that I mean one place where judges are resident, and to describe without numbers the situation in that registry?
MR MERKEL: Would your Honour just excuse me for a moment?
BRENNAN CJ: Mr Merkel, this is something which perhaps you might care to discuss with those on the other side of the Bar table and in the mean time we can return these documents to ensure that the confidentiality is maintained. Or perhaps if some other method of making your point without breaching confidentiality can be achieved by arrangement at the Bar table, that can be followed.
MR MERKEL: Yes, your Honour. We have set out in pages 8 and 9 the court removed book references to the different matters, the absence of criteria, the shredding that has occurred of documents and so forth. Could I go now to the first head of incompatibility which is independence, which we deal with at paragraph 11 at page 9.
We refer to the passages in the Court book which identify that there are no criteria under the Act or in fact for appointment or revocation. One of the points of concern in the sentencing commission in Mistretta was the power of the President to remove members but that was permissible because it was for cause. This Act under section 6D puts the question of appointment, revocation, term of appointment under a declaration entirely in the ministerial discretion because the appointment is only for so long as there is a consent and a declaration in force. The declaration could be for six months, it could be for a year, it could be for the term of office or it could be, no doubt, on some conditions.
We would say that that has the result of subjecting the judiciary to the process that the legislation in Hilton v Wells was wishing to avoid, namely, not to pick and choose between judges. But in overcoming a constitutional difficulty, they have created an even greater problem because the transformation, we say, is truly one of distinctions without differences.
They have inserted a consent, that means the appointment can only be voluntary, but that does not change the nature of the function and we deal with this at paragraph 13, that in overcoming the decision of the minority in Hilton v Wells which was the imposition of the duty of acceptance by offering a consent as a precondition to appointment it does not deal with the central problem of duty of performance and we say that the very issue raised by your Honour Justice Deane and the Chief Justice his Honour Justice Mason as he then was in Hilton v Wells was this problem of the requirement by the executive to perform executive functions and that was considered by your Honours at page 84 in Hilton v Wells [1985] HCA 16; 157 CLR 57. There are two passages we would rely upon. At the bottom of page 84 your Honours commented, the very last line:
Section 20 is not so expressed as to permit a judge to decline to deal with an application made to him. The section is expressed in the manner appropriate to the exercise of jurisdiction or power by a judge as such. It proceeds on the basis that if an application is made to a judge he will deal with it and, subject to any general discretion which may be thought to inhere in the word "may", if satisfied of the requisite matters, proceed to exercise the power which he is given.
The Act that your Honours were considering was much simpler. Now, of course, that is more clear and what your Honours raised at page 82, point 8, is the question that we say now arises under this Act.
Indeed, it may be arguable that, conformably with the underlying concept of the separation of powers, it is beyond the power of the Parliament to attach to the holding of judicial office as a member of a Ch. III court an unavoidable obligation to perform as a designated person, detached from the relevant court, administrative functions which are unrelated to the exercise of the jurisdiction of that court.
And we say that is precisely what has occurred in the present case. Every time a police officer arises before an eligible judge subject to availability and convenience the judge under this statute is required to deal with the application. He has consented to this appointment, an application is made and he is required to deal with it. He has a discretion to refuse it but only on the grounds under the Act. We say that constitutes a situation where at the beck and call of police officers who are authorised agencies, the judge is required to perform his administrative task. We say that is precisely the problem your Honours had raised there.
Now, your Honours adverted to this in Love's Case at page 322 and it was suggested in Jones at page 499 that the majority took a different view of the obligation under section 7 and section 20 that there may have been a discretion not to perform under the old Act. We would have some difficulty whether that was decided by the majority but it does not matter because under the present Act what your Honour Justice Deane and Justice Mason described at the bottom of page 84 and over on page 85 is now explicit in this Act and if one went to a registry where there was an eligible judge and the judge said I decline to perform my task under the Act because I find this particular offence distasteful or whatever, he could be subjected to mandamus to perform the task and hear the application.
So we say that this is exactly the kind of problem which these sorts of provisions create and we make the point in paragraph 13 that it is the same problem that is considered by Chief Justice Cardozo in Re Richardson, that the duty of performance of the non-judicial functions was required by the appointment. So, we say that the problem of independence is compromised in those two ways and we make the point in the second-last sentence at paragraph 13, that there is little distinction in principle to the threat to judicial independence by an executive free to impose the duty of acceptance as against being free to appoint and revoke at will, or we would add, require administrative functions to be discharged at the beck and call of the representatives of the federal and State authorised agencies.
BRENNAN CJ: Mr Merkel, you have been interrupted a little this morning, but how much longer would you expect your submissions to take?
MR MERKEL: I would hope, your Honour, that I would be able to be finished in approximately an hour.
BRENNAN CJ: Do you know how long Mr Castan will be?
MR MERKEL: We thought that our submissions would probably take the day, your Honour.
BRENNAN CJ: We will adjourn now until 2.15.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
BRENNAN CJ: Yes, Mr Merkel.
MR MERKEL: Your Honours, we have had some discussions between us concerning the confidential exhibit. The position is as set out at page 47 of the court book and what had occurred is that the court had regarded the identity of the judges as confidential and when approached for the information that would go into the court book was not prepared to give information as to the identity of the individual judges but was prepared to give the details in the confidential exhibit of the judges at each of the registries and that that was to be on a confidential basis. The confidence was to protect the identity of the individuals concerned. With the agreement of my learned friend, Dr Griffith, we are content to withdraw the exhibit on the basis that the Court accept that at some of the registries all of the judges are eligible judges and at the other registries most of the judges are eligible judges, and on that basis we are content to withdraw the confidential exhibit from the court book.
BRENNAN CJ: Yes, thank you.
MR MERKEL: One other matter, if I could just briefly deal with it. The identity of the Commissioner of Police has changes since the commencement of the proceedings and with the consent of my learned friend, Mr Weinberg, could we have leave of the Court to substitute Michael John Palmer as the first respondent or the present first respondent, and could the proceedings be amended accordingly. I understand my learned friend appears for Mr Palmer as the present Commissioner.
BRENNAN CJ: That is so, is it not, Mr Weinberg?
MR WEINBERG: Yes, it is, your Honour.
BRENNAN CJ: Yes, very well.
MR MERKEL: Could we go now to page 10, paragraph 14, of our submissions which deal with indeed the very problem with which we have been concerned since lunchtime: the total secrecy shrouding the judicial involvement in the criminal investigation process. It was certainly a matter which was obviously of concern to her Honour in Jones' Case. The problem, of course, could not be reinforced more by the difficulty of the question of identity of judges and the, we would say, high public interest that if judges are to perform extrajudicial activities that it should go almost without saying that that should be public, the identity of the activity, and the fact that they are doing it should be public and here we have the converse of that situation.
DAWSON J: Why?
MR MERKEL: Because, your Honour, judges performing those activities as public duty activities, not in a private capacity but as a public activity. To ensure that the confidence and integrity of the judicial power in the court is maintained, it is important that what they do as judges and - - -
DAWSON J: They are not doing it as judges, that is...... You see you keep coming at this. You really are trying to say that they are not persona designata.
MR MERKEL: Your Honour, my learned friend, Mr Castan, will be putting that as the next leg, that to be an eligible judge you must be a judge of the court. The next step is that you have to consent and be appointed by the ministerial declaration. To the public there can be no distinction, even if we accept, as we do for the purposes of this leg of our argument, that there is a constitutional difference, but in the public perception there is no difference and we say that if the judges are carrying out secret investigative activities in this way without it even being known that they are doing it and with their identity being concealed in this way, it can only undermine public confidence in the court because this is the very antithesis of the judicial activity and discharge of the judicial function.
DAWSON J: They are not performing a judicial activity, that is the point. I mean, you have this difficulty.
MR MERKEL: The whole doctrine of incompatibility is premised upon the fact that the judge is performing a non-judicial activity.
DAWSON J: What you are really saying is that the persona designata concept is so artificial as to really be meaningless to most people.
MR MERKEL: And in that way, your Honour, it is very important. We do say that, your Honour, but I do not want to impinge upon the next leg of our argument but if confidence in the courts is to be maintained, it is as important that the confidence is in what the courts appear to the public to be doing as much as what they are doing and one cannot escape the fact that the designation of persona cannot overcome the problem of apparent perceptions, or the perceptions of the public, justifiable as to what the courts are doing. But can I go to really the heart of what we are saying and your Honour the Chief Justice, in your Honour's article on Limits on the Use of Judges, commented upon the utility of having judges perform non-judicial functions provided they were consistent with the manner in which judges performed their judicial functions.
What we say at page 10 is designed to demonstrate that there could be nothing more inconsistent with the judicial function and its performance than these activities. Can I take your Honours to what Mr Justice Dickson said in Attorney-General of Nova Scotia v MacIntyre (1982) 132 DLR (3d) at 385. We say that adopting very much what your Honour the Chief Justice said in Limits on the Use of Judges, the extent to which judges are required to depart from the functions regarded as elementary to judicial activities in performing their public executive duties is an important element in this question of incompatibility. The secrecy of judicial activity was considered by Mr Justice Dickson at page 399.
This case concerned an application for a declaration by a journalist that he was entitled to inspect search warrant records and informations used to obtain them and sought a declaration that he was entitled to do so and was successful in the Court of Appeal and upheld by the Supreme Court. The issue was the importance of judicial activity being an open court and being subjected to public scrutiny and, of course, the search warrant issue had exactly the same public interest immunity and criminal investigative elements that we have for intercepts. His Honour started at page 399 at the bottom of the page:
American Courts have recognized a general right to inspect and copy public records and documents, including judicial records and documents. Such common law right has been recognized, for example, in Courts of the District of Columbia.
Then his Honour sets out the passages which I will not read to your Honour and then the principle of open courts and public access was said to be based on the rationale eloquently expressed by Bentham. This is at point 8 at page 400:
In the darkness of secrecy, sinister interest, and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the judge himself while trying under trial.
Then his Honour continues:
The concern for accountability is not diminished by the fact that the search warrants might be issued by a Justice in camera. On the contrary, this fact increases the policy argument in favour of accessibility. Initial secrecy surrounding the issuance of warrants may lead to abuse, and publicity is a strong deterrent to potential malversation. In short, what should be sought is maximum accountability and accessibility but not to the extent of harming the innocent or of impairing the efficiency of the search warrant as a weapon in society's never-ending fight against crime.
Then his Honour continues at page 403 where his Honour reiterates at point 2:
At every stage the rule should be one of public accessibility and concomitant judicial accountability; all with a view to ensuring there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidence seized is dealt with according to law. A decision by the Crown not to prosecute, notwithstanding the finding of evidence appearing to establish the commission of a crime may, in some circumstances, raise issues of public importance.
In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent.
Now, of course, nothing could be more flagrant in breach of those principles than the present case. Not only after the search is over and the intercept finished is there no accessibility or accountability but the protection of the innocent is the one feature of this legislation which is unachievable because they never know. Now, it may be very well for the executive branch to engage in those activities in the interest of criminal investigation, but to involve the judicial branch is to involve it in the antithesis of judicial activity. And we say that that is precisely what occurs in the present case.
The fact that the exercise of power creates new statutory rights and obligations and may infringe existing rights, whether lawful or no more than human rights, only makes more important the underlying principle that is breached. These powers are exercised in breach of the rules of natural justice because there can be no right to be heard or no notification before or after at any time. In secret, not only as to the fact that they occur but as to the identity of the persons exercising the power, with no process available under the Act and section 75(v) of the Constitution effectively neutered. And it is only for those who are prosecuted that there is ever an opportunity to know that what has occurred, has occurred and even they have to go through the tribulations of what the Court has seen in the present case to get access to the material but for the innocent that his Honour was concerned about, they never know. That is the first breach of the wall of judicial propriety and activity that we say occurs.
The second is just as serious and that is dealt with at paragraph 15. The Fourth Amendment in the US Constitution which requires cause for searches and in the American jurisprudence is required a determination by a neutral and independent tribunal to authorise searches, stems from Lord Camden in Entick in the 18th century. The common law warrant was returnable before the court at which it issued. It was subject to the supervision of the court; the court could revoke it. The court was charged with supervising the effect of its order. That is how it found its life in the Fourth Amendment and the current American intercept legislation empowers the judge to give notice to the person intercepted at an appropriate time.
McHUGH J: But why cannot a Federal judge revoke a warrant in a case such as the present?
MR MERKEL: No power to do so under the Act, your Honour. He is functus officio.
McHUGH J: What about section 33(4) of the Acts Interpretation Act? You have a power to issue an instrument; you have a power to revoke or rescind it.
MR MERKEL: Well, your Honour, the express - well, two factors, your Honour. I took your Honour to the revocation power in the Act so that there is a revocation.
McHUGH J: But that is mandatory, is it not? Section 51, was it not?
MR MERKEL: Section 52, your Honour. "May", your Honour. Section 52 says "may", and "shall", if he does so, then take the steps, but it is not mandatory. So, we say that, again - the real point is that the judge is functus officio once he has issued the warrant under this Act. There is no further task for him and that is the starting point, your Honour. Of course, the reality then is how on earth would he ever know because no information is before him; the warrant never gets returned to him and no report is ever made. So that not only as a matter of construction would we say there is no revocation power because the judge is functus officio, but as a matter of practical reality, there is no circumstance that could ever lead the judge to find out or ascertain grounds which would result in the warrant being revoked. And, indeed, one could ask in an executive capacity what ground he could revoke it. If there was material nondisclosure, he has been satisfied, it is a judicial act that only could set it aside. It is for the other branch of government to then - he, in his hat on the other branch. But under the Crimes Act is prohibited from even raising the issue with anyone that could take that step. So, we say - - -
McHUGH J: The section I had in mind was subsection (3), not subsection (4) of section 33 which says:
Where an Act confers a power to make, grant or issue any instrument.....the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
MR MERKEL: I accept that, your Honour, but that would be subject to two doctrines. One is functus officio. It seems to have an assumption of a continuing statutory function, of which there is none here. Two, the contrary intention. Were we not looking at trying to make it easier for the achievement of justice but we were looking at this as a question of interpretation, the legislature has turned its mind to the question of revocation and specified one limited instance where it is available. Even if I was wrong on those two points, one would then confront the third, which is: on what ground could the judge revoke it? He is not given an unfettered discretion to grant an instrument or revoke it.
McHUGH J: Except 51 is dealing with telephone applications and it is a special case.
MR MERKEL: I appreciate that, your Honour, but one would still have to confront on what basis could revocation occur if there were power. It would be a very circumscribed basis, your Honour. I think revocation is also dealt with at sections 56 and 57. But whether I be right or wrong on the construction point, the circumstances for revocation are so circumscribed as to be virtually in utile, but the contrast I am drawing, your Honour, is not with whether there is a possibility of revocation but the fact that if this power is to be conferred on a judge consistent with integrity of the office of the judge, the judge should have a function after its issue to ensure there was propriety in its issue and execution.
It is that that was the common law fundamental in respect of search warrants that found its way into the fourth amendment, found its way into New South Wales, New Zealand and American legislation. One goes to English legislation where the power is conferred on the Secretary of State, and even there there is power for a person to seek to quash the warrant and get access to it.
So that if one has to compare the way in which this power is exercised in other countries, a concern, without separation of powers problems other than the United States for propriety of the function, is demonstrated in the protections offered by the Act. None exists in this country where we are concerned about the integrity of separation of powers and judicial office. So we say that again it is, in paragraph 15, reviewability of the decision after it is made. It is the necessary check and balance against abuse of power or misuse of power by the applicants.
We do not suggest judges would misuse their power, but one only needs to go to what has happened in the present case, which is the next point at paragraph 16. The third breach is that all ex parte applications before judges attach the duty on the applicant to place before the judge all the facts which the absent party would presumably have brought forward in defence. Mr Justice Isaacs in Thomas Edison v Bullock said when that is breached the order must almost invariably fail. The current state of authority in respect of disclosure in respect for search warrants as set out in footnote 20 is that there is probably no duty of disclosure, Lego Australia, which is a Full Court decision, but it would be extraordinary if agencies seeking these warrants attached to themselves the duty of bringing everything that presumably would have been brought in defence.
It is not their task and the statute does not require it, but a judge requires it and he requires it because whenever an ex parte order is made it is in breach of the rules of natural justice and the court must be satisfied that its processes are not being misused and therefore it requires that obligation to be discharged, but yet when the judge puts on an executive hat, that fundamental principle has no application because the statute does not provide it and if it did he would have no armoury with which to enforce it because his function is at an end once he has discharged his obligations in respect of the warrant.
We then go at paragraph 17 to demonstrate that section 44 on its face looks innocuous enough. It is that the judge can require further material, but put in place as part of an executive criminal investigation process, what it really means and operates as is the judge indicating that, "I need further material, further inquiries, further information and then I will say my jurisdiction may be exercised." To that extent it involves an active participation in the investigative process. It is something more than a mere screen in exercising a statutory power.
What we go on to say at the top of page 12 is that it was all very well when the intrusion into the area of the conduct of crime in the nation was national security and even drug importation but the expansion under the 1987 Act is demonstrated by the statistics in volume 2 at page 232. There is an annual report - I should indicate to your Honours that the 1994 annual report, we are told, is due to be tabled this week and we would seek leave of the Court to be able to file it with the Court when it is available. This is the 1993 report. Can I just indicate to your Honours at page 234 the authorities who can apply for warrants for that year are set out.
The statistics that we have set out at page 12 are at page 244 and at page 12 we indicate the enormous growth in applications. We do not have figures for the Hilton v Wells period but it has jumped under the new Act from 246 granted to 527 in five years. There is an extraordinary success rate and we say, again without in any way suggesting that the integrity of the judges or indeed of the applicant authorities is impugned, the fact of the matter is the criteria in sections 45 and 46 admit of opposing argument and how many warrants would have been issued or how many conditions may have built in were their argument by an anarchist or were their reviewability or were decisions ones that had to be recorded. So that, what we say is that again it shows that in a real and substantial way the absence of a hearing or consideration in an opposed way, the absence of reviewability, the absence of public scrutiny, draws one into the concerns of Mr Justice Dickson in MacIntyre.
We set out - I should just take your Honour through the report - at page 257 the arrests based on information obtained is set out: 488 in 1991; 558 in 1992; 420 in 1993. Convictions, at page 260, for the current year: 434. And the break up of the figures - I think prosecutions are at page 259: some 538. That just demonstrates how far reaching the activities underlying the warrants are, how extensive they are and how extensive the involvement in the judiciary in respect of those matters has become. Some 20 warrants per judge per year without records. Voluminous information filed with judges. Judges cannot be expected to remember the names of witnesses or persons against whom they are required to draw adverse inferences and must by obtaining the required degree of satisfaction in sections 45 and 46.
The capacity to disqualify themselves without reference to the parties and without reason is severely undermined by that process. If they go to the DPP in Victoria and New South Wales and ask, "Can I have a look at the information to see whether I am compromised?", they may be told it has been shredded. Under the Act there is no provision for them to be able to simultaneously perform both functions.
So one sees that is how the investigation process produces involvement. But, of course, it is worse than that. The judge knows of his involvement in the issue of the warrant but when one looks at the extending definitions and investigations that flow from it - - -
BRENNAN CJ: You have told us that this morning.
MR MERKEL: I am sorry, your Honour. The reality is I was just going to add a slightly different point that the judge does not know when he comes to a matter that it may have been initiated by his warrant, and the widening jurisdiction in the civil area, of course, eliminates him from being able to know those matters.
We have set out at page 12 an article of Telford Taylor published in the United States in 1969 where the author examines - and we have set out extracts - the problem of extension. This is at page 80 of the analogy with a search warrant to an intercept, and draws the distinctions about why one may be subject, such as intercept for judicial activity, or appropriate, but the intercept is not, makes essentially three points. One is that the warrant is to seize existing goods in respect of an existing offence. The intercept is surveillance in respect of conduct yet to take place. The second is that the warrant being returnable before a Court or under supervision of the Court is able to give rise to a case or controversy, a justiciable issue; the listening warrant is not - probably would not, the scrutinee would never know. He also makes the point at page 15 in the last 7 lines:
But in issuing surveillance orders, the courts are called upon to find that X will probably do or say something incriminating, and that the only way that conduct can be observed is by clandestine surveillance of a trespassory nature. Such issues are not, in my opinion, appropriate for judicial disposition, especially since the decision whether or not to subject them to review in an adversary proceeding is entirely up to the prosecuting authorities".
He then concludes:
that the non-adversary, non-justiciable nature of surveillance renders it unsuitable as a judicial function.
"The "case-controversy" requirements of adverse parties, for example, reflects the fact that courts are not investigative agencies, and are not equipped to prove disputed factual problems under their own steam...
What proper business is it of a judge, and what experience or facilities does he have that will enable him to decide whether or not surveillance of a particular type is warranted in a particular case? Even if the judge is a former law enforcement officer, as many are, he will be unable to probe the matter in the way that opposing lawyers would. The investigative issues do not lie within traditional judicial expertise; they are intrinsically police problems, and should be handled by the executive branch".
He then concludes with - - -
BRENNAN CJ: Do we really need to have you read us passages - - -
MR MERKEL: No, your Honour. I was going to conclude on that segment by reference to your Honour's article - your Honour has written two articles on the "Limits On The Use Of Judges" (1978) 9 Fed. Law Review 1. Not sins of the past revisiting your Honour, but wisdom of the past with a very present applicable situation. It is obvious in this article your Honour was concerned about the potential conflict between the coexistence of the administrative power and the judicial power. I only wanted to refer the Court to two passages, one was at page 10 and the other was at page 14. At page 10 in the top paragraph, your Honour said:
Confidence in the judiciary may not be weakened where it can be demonstrated that there is a special need for departure from the usual procedures of an open court and from the usual natural justice safeguards. National security may provide such a special need. The risk of sapped confidence does arise when the function to be performed may lawfully be performed without those procedures and safeguards - but that is really saying that judges ought not be asked to undertake tasks where they are not ordinarily bound to act judicially.
And we would say that may be one principle which we could adopt in answer to what your Honour put to me before lunch. The other passage is at page 14 where your Honour said in the first paragraph:
The risk of loss of confidence in the judiciary is proportionate to the disparity between the functions proposed for performance by the judge and the functions traditionally performed by the courts. The risk is greatest when the proposed function would ordinarily involve advisings to the executive on the exercise of executive power, the adoption of procedures inconsistent with the rules of natural justice, and the enunciation and application of new rules which ought properly be enunciated by the legislature or by the executive. The risk is not substantial merely because judicial advice without adversary litigation is sought, or because the judiciary is asked to develop new rules to solve problems of a kind which the legislature or the executive wish the judiciary to solve, provided they are problems which may be solved by the acquisition of the necessary knowledge and the exercise of an impartial judgment.
Where the function proposed is significantly different from the traditional function, the risk can be justified, but can only be justified, by the urgency of the community's need to use the judge's skills. A very special kind of national interest, and perhaps the unique fitness of a particular judge, must there be prayed in aid.
BRENNAN CJ: But this is speaking of desiderata rather than constitutional power, is it not?
MR MERKEL: I thought it did stem from Boilermakers and the separation of powers principle, which your Honour referred to at page 5, and the extent to which the separation could occur without impinging on public confidence in the judiciary. The point that we make is that whilst we would say that convenience or need is relevant, it could never be determinative. But in the present case the issue is, is the coexistence in the same person of both powers, does it satisfy any of your Honour's principles? And we say it satisfies none. What your Honour said there can be satisfied by acceptance that the judicial expertise has a role but there is no need for it to coexist with the discharge of judicial functions, there is no need for it to be so circumscribed as this power is circumscribed. We say that what has occurred in the present case very much offends those principles, and we would also draw in aid what your Honour said in the Courts, Democracy and the Law article on the need for protection of these principles as matters of substance and not to give way to executive or other convenience.
So that is what we say is the second category of principle offended. The third relates to a matter that I have already discussed briefly before your Honours and that is the conflict between discharge of judicial duties and executive functions. It is put at two levels. We deal with this at page 16. In paragraph 20 we deal with the anomalous circumstance of if there be a review, it must be in the Federal Court by an eligible judge of an eligible judge, bar I suppose 5, where it may not occur, but one of the difficulties is that the public perception and confidence is not assisted by the fact that both have executive functions or are likely to have executive functions and bringing to bear in effect knowledge of undisclosed practices and experiences and, indeed, Justice Gaudron in Jones talked of the problem of review in the same court as the judges who granted the orders were discharging their judicial functions.
We say that is the first problem, but the major problem is the one of the dual role where the executive duty of non-disclosure is in direct conflict with the judicial duty of disclosure. We set that out at page 17 at paragraph 21. We say that - and I think I answered this matter to your Honour Justice Gummow this morning, but there seem to be three levels at which the information is prohibited from being disclosed. We have set out those out in the three paragraphs to paragraph 21. Section 70 and 79 of the Crimes Act do bear examination because, as I indicated and as our footnote at 35 mentions, the judge is a Commonwealth officer as defined in section 3 and, subject to limited exceptions, those sections operate to prohibit disclosure of information which an officer is under duty not to disclose.
At 22 we talk about the two aspects of the rule against bias, real or apprehended, and often they get confused into one and, indeed, our learned friends' submissions do that. There are two legs to the question. The first is the duty of disclosure to the parties. That is the primary protection for enabling the principle to be complied with and, indeed, in Najjar v Haines President Kirby identified the breach of that duty as capable itself to giving rise to a reasonable apprehension of bias. The second is the judicial duty to sit here and determine cases unless disqualified by bias and that was the point made by Justice Mason in J.R.L.
If nothing else, what his Honour's judgment in J.R.L. and the Full Court judgment in Polites demonstrate is that where we are dealing not with a personal problem but the question of judicial involvement with a matter either as an executive or a judge there is a substantial issue to be determined by the court as to whether that can give rise to a reasonable apprehension of bias. It is far removed from the matter about where a judge has a pecuniary interest or a personal interest or a personal association with someone which may be handled in a very different way.
On the question of reasonable apprehension of bias because of prior involvement in the context of Livesey, J.R.L. and Polites, particularly Polities at page 88, it is clear that there is a substantial issue for the court to determine, not whether the judge should disqualify himself but a decision as to whether he is under a duty to sit or not to sit and that is a duty which of its very nature should only be discharged after disclosure to the parties and hearing their submissions on the matter, otherwise the duty to sit is rendered nugatory. The duty we say that his Honour was talking about was not a duty that just arises when a judge walks on to the bench for the first time; it is a duty underlying the functioning of the courts as institutions.
We say that the problems given to judges by this Act present an irresolvable conundrum. The judicial hat requires disclosure, the executive hat requires non-disclosure and the two, in a real and meaningful sense, will clash as they did in this case. We have set out in paragraph 23 the extended areas of jurisdiction of the Federal Court that show that on no view can these matters be said to be illusory or peripheral or marginal.
GUMMOW J: Is it right to say that the conflict arose in this case? I was looking at paragraph 43 of Mr Weinberg's submissions. It rather suggested that your side may have no objection.
MR MERKEL: No, your Honour. That is not accurate - not complete, I should say, your Honour. Justice Heerey sat in three matters: two prior to the disclosure in the hand-up brief and the third after the disclosure. What is set out in paragraph 33 relates to the appearance after the disclosure and it is accurate to say that there was no objection to his sitting on that day as a member of that Full Court and I will not trouble the Court with the circumstances but on the two earlier occasions - I will take your Honours to the references - there was no disclosure and his Honour sat. I do not wish to say that his Honour breached a duty in sitting. Our point is a more fundamental one. On any view, whether his Honour was under a duty to sit or not, his Honour was under a duty to disclose before sitting and that was a duty that he was not able to fulfil or discharge because his executive hat prevented him from doing so.
That really is the essential problem. So, when our learned friends put in their submissions that judges can decide not to sit, we say that has two vices. One is, in this area of prior involvement, the judge is as much under a duty to sit and whether or not he or she should not sit should be determined after hearing the submissions of the parties because these areas are not clear cut by any means. The second is that a judge is under a duty of disclosure to enable that first duty to be fulfilled and discharged and for the reasons I have indicated neither can be fulfilled. But the worst problem is that neither the parties nor the judge may know that there is a conflict unless the judge's good memory in the second, third week or month of the trial gives rise to the problem. There it is not sufficient to say one day he just walks off the Bench and says, "I am retiring from the case".
So that we say that there are a number of problems which we seek to outline at paragraph 23. One of the problems: as litigants have no knowledge and are not put on inquiry, therefore there is a special burden added to the judge because he cannot assume that they may know of facts or circumstances. The burden is entirely upon him. The second is the eligible judge has no record, no decision or reasons and therefore is himself or herself severely impeded in making any disclosure or even a proper decision on the disqualification, and in Polites this Court said it is a matter of objective determination whether there is a reasonable apprehension of bias in such circumstances. That is at page 88.
Then, of course, the final burden is the impediment caused by the lack of any association that may arise between the matters found in the warrant and the reasons the judge may have issued the warrant, yet his association as far as a litigant and public perception is concerned is that he authorised the warrant. Therefore, if the material found on the warrant leads to, for example, a tax charge rather than a narcotics charge, that judge could be sitting on an application dealing with those matters without even knowing that the material was obtained under his warrant.
We say that that only gives rise to why there should be a real concern about this, both pre-trial, during trial and as much after trial. That capacity to undermine the integrity of the process strikes at the heart of public confidence in the judicial process. It is that that is put under the knife by this legislation. It was avoidable but none of the protections given to the judge are there: no protection in respect of disclosure, control, reporting back, reviewability or anything else.
The references to the present case - and this may answer the matters your Honour Justice Gummow put to me - are dealt with at page 24. I think I have said these matters to your Honours and I will not repeat them, but the eligible judge - I think we have put in consent and contested applications, the first order was third party discovery. The order does not express whether it is consent or not. I cannot answer that at the moment, so I just ask your Honours to note that may not be correct in respect of the third party discovery.
But the contested application which my learned friend, Mr Weinberg, said in his submissions involved only a matter of law your Honours will find in fact required the judge to personally supervise and inspect the AFP investigation records concerning this tax fraud to make a decision on whether legal professional privilege could be upheld. I think the reasons for judgment are at page 286. His Honour at page 286 sets out the alleged tax fraud which was the matter that led to the issue of the intercept warrant. Then on the question of inspection at page 297 - at page 296 his Honour refers to AFP running sheets and it was an "investigation into the Grollos/drafting of Information and search warrants", which presumably would be almost the same material relied upon for the intercept warrant because it was in respect of the same breach of the Crimes Act.
Then over the page his Honour says, "I have inspected the running sheets themselves", and then makes a decision on legal professional privilege. But we are not here to indicate to the Court that his Honour breached a duty. My learned friend, Mr Weinberg, was counsel I think before his Honour on that day and as counsel acting in the matter. The problem is that it produces irresolvable conflicts for all concerned about disclosure. The recent case in the Northern Territory involving a judge of the Family Court led the Full Court of the Family Court to say there was an obligation on the part of counsel and the judge to disclose the private circumstances that led to that matter.
We say that this Court need not enunciate principles. That must be done on a case by case basis, but whatever principle is enunciated, the one that we say most brings into discredit the judicial process is that contended for by our opponents, that judges will just know when not to sit and not sit and not tell anyone why, whether before, during or after a case. We say that is the most unsatisfactory of all worlds and is unnecessary.
Could I next, and finally, raise a matter dealt with in the United States. If I ask your Honours to note that at the bottom of page 19 there is a reference to Mistretta, could I ask your Honours to cross out the reference to page 381 and note page 407 and I apologise for this, but the actual quote is from the wrong case anyway. Could I ask your Honours to note that the quotation for footnote 38 is In the matter of the President's Commission on Organized Crime [1986] USCA3 202; 783 F 2d 370 at page 381, but the same matter is dealt with in Mistretta. Can I just briefly explain to your Honours the problem that was dealt with in each of those cases because it is directly relevant to the present case.
Judicial members were appointed to the President's Commission on Organized Crime and it was a matter of concern as to whether that compromised those persons as members of the judiciary and two American courts concluded both ways. I am not sure whether they were performing both functions simultaneously but one of the points made in the quote is that participation in that commission - it was not the sentencing commission - but participation in the commission may brand the judges pro prosecution. And what the court said is that, well, if that occurred in a particular case because there was a real connection, then that would be addressed by a motion for recusal. What the court said in Mistretta is that if a judge on the sentencing commission - this is not the quote - was somehow compromised by acting in a particular matter, then that, likewise could be addressed by recusal.
So that one of the ways for overcoming the problem in the United States is that if there was a conflict, and the parties were in a situation where they would be to be aware of it and disclosure could occur, then the judge could present the matters and the parties could address the question of disqualification. Of course, that stands in quite considerable contrast to the situation we have in the present case.
The fourth category of incompatibility we deal with at page 20, which is under the heading of Separation. This touches upon the matter my learned friend, Mr Castan, will be addressing, but is also - - -
BRENNAN CJ: Are those figures on paragraph 26 confidential?
MR MERKEL: No, your Honour, I think they appear in the case stated. The confidentiality only attached to figures that would identify the particular judges. I think your Honour in "Courts, Democracy and the Law" emphasised the importance of confidence being maintained in the courts by the public perception of their role. The separation of powers, of course, must be understood in that context, so there must be both de jure and de facto separation. The problem we say in the present case is that the de jure separation is illusory. When one looks at the act the eligible judge receives no public designation. In fact his identity as an eligible judge is concealed or confidential. No assistance, no staff, no remuneration, no facilities and no procedure is provided for which could distinguish or differentiate between the judge's dual roles. So that other than to the constitutional lawyer well versed in the persona designata doctrine, the separation as a matter of law in the Act is non-existent.
Then one comes to the factual aspects. His or her salary is the judicial salary, so the public duty is paid for by the judicial salary. The assistance, staff and procedures, the facts show that if they are a duty judge or a registry does have a role to get the business to the judge in an orderly way. They are those of the Federal Court. A personal performance of the function is in all respects indistinguishable from the performance of the function of judge. It is done in and out of court hours, just as a judge's functions are done. And then finally, the invitation on appointment. We have set out two passages at page 21, one from your Honour Justice Deane and Justice Mason in Hilton v Wells which we accept was made in a slightly different context. But we say both those passages in Hilton v Wells, and also that of Judge Cardozo, indicates that if what has occurred is said to ultimately produce separation, or satisfy separation, and there is no answer to the elaborate charade or, as what his Honour Judge Cardozo concludes at the top of page 22, "He has been the judge throughout", then one has got to ask, "Has not the separation of powers doctrine been severely compromised by the process that has been followed here?"
It is extraordinary that the solution was so easily achieved. If the federal judiciary has something special to offer, if intercept is, as it clearly is, so important in the fight against crime, if the activities are as extensive as they now have proved to be, it was open to set up a judicial commission, but not coexist the functions simultaneously, and all of these problems that we are worried about, concerned about, could have been overcome.
Whether that is permissible for argument on another day, but the American cases would suggest that that does not compromise because it does not produce coexistence. It could have expert members, it could have expert prosecutors, and we would say if it had the kinds of procedures that New South Wales, New Zealand or the United States have, public confidence would be improved not, we say, running any of the risks that we are concerned with in the present case. We say that this separation problem gives rise to very fundamental issues of principle which are breached in the present case.
The final matter I wanted to do, and I will do it very briefly if I might, is just take your Honours to one or two of the American cases where this issue has been confronted - in not the same circumstances. Could I first go to Re Richardson 160 NE 655? Could I introduce the discussion by saying that the American Fourth Amendment history, which required an independent determination for search warrants and has carried it through to surveillance, does not really then confront the problem that we have here because built in to the American statutory procedures are protections of the kind that are lacking here, and because the powers were opposed in the judicial branch, the question of this as an executive or investigative function has not had to be dealt with. Re Richardson is very close to it, because in Re Richardson Judge Cardozo had to consider a direction to a justice to determine whether a shire president, I think it was, had been guilty of misconduct or criminal conduct. His Honour was very concerned about the closeness of the prosecutorial world. His Honour talks of that in the second-half of the first column at page 658, and I do not say that this applies to the Federal Court judge, but given the role under section 44, there is much to be said for what his Honour says in the second-half of the last paragraph:
If he were the district attorney of the country, he would do no more and no less. What he learns is not committed to a record available to all the world. It is locked within his breast to be withheld or disclosed as his discretion shall determine.
Our eligible judge does not have that:
No doubt he is to act impartially, neither presenting from malice nor concealing from favor. One might say the same of any prosecutor. The outstanding fact remains that his conclusion is to be announced upon a case developed by himself. Centuries of common-law tradition warn us with echoing impressiveness that this is not a judge's work. We should be sorry to weaken that tradition by any judgment of this court.
Our criticism in a different context produces, in this case, the same conclusion. His Honour discusses the separation of powers principle at 659, first column, last clear paragraph, where his Honour says:
We reach the final stage in the course of respondent's argument. Granting that functions nonjudicial may not be cast upon a judge so as to impose a duty of acceptance, the privilege, we are told, is his to assume the performance of the duty, not in his capacity of judge, but in his private or individual capacity as if named as a commissioner. The action of the circuit judges who refused to hold themselves bound by the act of Congress of 1792 is cited as a precedent. Some of the judges, declining to serve in the capacity of judges, "agreed to construe the power as conferred on them individually as commissioners,"
Then his Honour goes at the bottom of page 661, first column, last paragraph. His Honour says:
The statute annexes or seeks to annex to the office of a judge, not a temporary power to be exhausted by a single act (as in the case of the Washington relics), but a continuing power to be exercised whenever occasion shall arise. As often as the Governor commands, the judge is to obey. As often as the need arises, the call is to be met. He is to be a standing commissioner whose function is to serve when summoned. In such circumstances, the public trust does not cease to be continuing and permanent because the judge may be willing to fulfill it on one occasion and unwilling on another.
And then in the middle of the second column on the next page where his Honour says:
The policy at the root of the constitutional prohibition reinforces this conclusion. The policy is to conserve the time of the judges for the performance of their work as judges, and to save them from the entanglements, at times the partisan suspicions, so often the result of other and conflicting duties. Some of these possibilities find significant illustration in the very cases before us now.
And then finally in conclusion at page 662 in the first column, first paragraph his Honour says:
We hold that the respondent is disqualified, while retaining the office of judge, to act as the delegate of the Governor under one name or another. The prohibitions of the Constitution are not to be evaded through the form of accepting as an individual what the judge must reject. At least, that is so when what is done is official and not personal in its quality and incidents. In this instance neither Legislature nor Executive nor judge had thought of evasion.
And then at point 8 in the same column:
Above all, the respondent himself had no thought to accept the designation in any new capacity.
If one looks at the present court book, indeed the regulations, the judge signs the warrant as a judge. The regulations have him in that capacity. From first to last he is assumed to act as judge and nothing else. He made his return in affidavits as a justice, he issued his notices and subpoenas with recitals that describe him as a justice and then his Honour in the next page goes through the activities and says he was a judge throughout.
The next case I would like briefly to take your Honours to is the recent decision of the Supreme Court in Mistretta v United States [1989] USSC 9; 488 US 361. I should indicate that this case does have some analogies with the present case. What occurred is that sentencing guidelines became essential because federal sentencing was disproportionate for different places for the same offences, so the President set up a commission within the judicial branch comprised of judges and others, judges appointed by the President - he could only remove them for cause; I have taken your Honours to that - to in effect formulate policy which would operate as federal sentencing guidelines to be observed by the courts but the courts having a discretion not to follow them, to try and get some uniformity of sentencing. There was no question of any conduct in secret or participating in any investigatory process.
It was interesting, in a different decision I will take your Honours to shortly, the Court of Appeals 11th Circuit held that the legislation was invalid; their Honours dealing with it in a different context but same legislation held it was valid. At page 368 the appointment question is considered by the court, somewhat different but bears some analogy to the present case. It:
is established "as an independent commission in the judicial branch -
and then further down:
"At least three of the members shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States." Ibid. No more than four members of the Commission shall be members of the same political party.
Then at the bottom, removal:
"only for neglect of duty or malfeasance in office or for other good cause shown."
BRENNAN CJ: Mr Merkel, having regard to the time, perhaps you might take us to the salient points in this judgment.
MR MERKEL: Yes, your Honour. The passages I would seek to refer your Honours to - can I just indicate I will not read passages to your Honours. At page 380 the court discusses separation of powers. At 390 the principle is stated in the second paragraph at page 390 in the light of this precedent. Could I also ask your Honours to note at 397 the court discusses composition of the commission and the conclusion at 403 to 4, the bottom of 403 their Honours says:
In sum, Ferreira -
which was referred to in Hilton v Wells -
suggests that Congress may authorize a federal judge, in an individual capacity, to perform an executive function without violating the separation of powers.
Then their Honours go on to say in the middle of page 404:
the Constitution, at least as a per se matter, does not forbid judges to wear two hats; it merely forbids them to wear both hats at the same time.
Which is at the heart of our complaint here:
This is not to suggest, of course, that every kind of extrajudicial service under every circumstance necessarily accords with the Constitution. That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch.
Then at 405 and 406 to 407 their Honours indicate that the integrity is not compromised and particularly the power of recusal enables the avoidance of embarrassment. Justice Scalia dissented. His Honour was concerned with the problem of delegation, but the point that his Honour made at 426 we say is apt to be applied to the present case. His Honour said that the majority decision in support of delegation in effect of the legislature to the judicial arm to make sentencing policy which was a legislative function, but we say the same problems arise in the present case of transference of the executive function to the judges. His Honour said:
Today's decision follows the regrettable tendency of our recent separation-of-powers jurisprudence to treat the Constitution as though it were no more than a generalized prescription that the functions of the Branches should not be commingled too much - how much is too much to be determined, case-by-case, by this Court. The Constitution is not that.
Then in the last paragraph his Honour says at 427:
I think the Court errs, in other words, not so much because it mistakes the degree of commingling, but because it fails to recognize that this case is not about commingling, but about the creation of a new Branch altogether, a sort of junior-varsity Congress.
His Honour then concludes in three lines that may come back to haunt:
And in the long run the improvisation of a constitutional structure on the basis of currently perceived utility will be disastrous.
We say that the present problem of saying "Look how good this is doing" is really putting utility above constitutional principle.
I will not trouble your Honours with the other references. Can I just indicate to your Honours that a different view was taken of the Sentencing Commission by the 11th Circuit Court of Appeals in the President's Commission on Organized Crime v Scaduto [1985] USCA11 786; 763 F 2d 1191 in our authorities. We would say that the statements of principle are very helpful to the present case, even though the Supreme Court came to a different result. I am sorry, I have given the wrong reference to your Honours. I apologise for that.
The case which dealt with the same commission was Gubiensio-Ortiz v Kanahele 857 F 2d 1245. It is not on our list of authorities but we have handed up copies to your Honours. We particularly rely upon what is said at 1261 through to 1263, but it finds the Sentencing Commission unconstitutional but the statements of principle are very supportive of our submissions, notwithstanding the Supreme Court took a different view. The two commissions on organised crime cases come to different views but state the same principles and other cases referred to in our authorities, Abbott v Nutt, Local 170 and Application of Nelson, are all statements of principle by the American courts which would say there is a substantial jurisprudential basis for the submissions that we are putting to your Honours.
So the conclusion that we arrive at in respect of those matters is that - and we say it is important to see this case as touching upon the issue at three levels. We say that the incompatibility in respect of the eligible judges' judicial power, the Federal Court's judicial power and the Commonwealth judicial power, as it is to be protected under Chapter III. In our last submission at page 23 we make the point I foreshadowed earlier. If compatibility and unreasonableness in the sense of proportionality did not weigh up equally in the same scale and that, for example, the Court formed views on incompatibility which meant that because the judge was to perform executive functions compatibility and our criticisms - sorry, I have not put that correctly. Notwithstanding our criticisms and their validity, it did not result in incompatibility, we say one need only look at the legislation in other countries to see how unreasonable a disproportionate and how inappropriate the legislative balance is in respect of the exercise of this power.
And we say that it offends the section 51 proportionality principle to confer an in-secret power to affect the rights of individuals without review, without record and without recourse. And we would say that the legislation would fail, or the parts of it which we rely upon and refer at page 57 of the cause removed book fail on that ground independently. So, they are the submissions that we would put on the question of incompatibility, if the Court pleases.
BRENNAN CJ: Thank you, Mr Merkel. Yes, Mr Castan?
MR CASTAN: If the Court please. One of the matters that may have come to the Court's attention in the perusal of the United States authorities that my learned friend has taken the Court through is the absence of any reference to the notion of persona designata in the United States approach to this problem. It is interesting that there seems not to have been an approach which has sought to either use that terminology or use a principle of statutory interpretation that looks to that kind of mode of determination of these issues and interestingly, also, as I will come to and as are set out in the submissions at pages 24 and onwards. equally in Canada, relatively recently, certainly by the 1970s, the view had been formed and the Canadian Supreme Court had come to the view that the notion of persona designata was unhelpful and in substance could be scrapped. It had had a vigorous history in Canada, being used not so much in the separation of powers area, but having been developed by judges in a complicated way that ultimately the Supreme Court of Canada said was of no real benefit and no real use whatsoever.
What we would respectfully invite this Court to do is to do what the Canadian Supreme Court did in - I have just lost the reference, your Honours. I will come to the cases, but what the Canadian Supreme Court has done and to, in effect, treat the notion as not helpful at all. The reason why it is not helpful and the reason why it is particularly unhelpful is that it tends to lead the courts, we would respectfully submit, in the wrong direction in the sense that what it does is to lead the court towards a question of pure statutory interpretation as providing the answer to what is ultimately, as we would respectfully submit, a question of constitutional function and operation.
DAWSON J: Are you inviting us to overrule Hilton?
MR CASTAN: Ultimately, yes, your Honour, if it be so necessary, though - I could deal with that immediately by saying we would say that Hilton v Wells is not authority for anything except what it decided in respect to the Act prior to amendment and I say that and the Court should so regard it because in Jones that is exactly what the Court said it was and refused to reopen in Jones saying it is only authority under that Act and since the Act is now being amended we will not reopen now in the application then made in Jones, because that is all it is.
DAWSON J: But the decision did involve the application of persona designata principle, did it not?
MR CASTAN: It did that and to the extent that it - - -
DAWSON J: It is a separate part of the law.
MR CASTAN: Yes.
DAWSON J: You are inviting us to say it is not part of the law any longer.
MR CASTAN: I am sorry, your Honour.
DAWSON J: You are inviting us to say it is not part of the law or this part - this aspect of the law, anyway.
MR CASTAN: Yes, to that extent. If it be the position that the correct view to be taken of Hilton v Wells is that it retains persona designata as part of the law then, yes, we do invite the Court to - - -
DAWSON J: You cannot have a conditional invitation. You are either invite us to do so or not.
MR CASTAN: We respectfully say that the case is not authority for that because this Court said that it did not need to reopen it in Jones because it was merely authority on a limited construction of the Act.
DAWSON J: But it is authority for the application of the persona designata doctrine, is it not? And you are telling us, are you not, as I understand you, that we should not apply that doctrine any longer?
MR CASTAN: Yes, that is why I say your Honour - we put it two ways: We say, first of all it is of limited authority and authority to that extent, but if it be so, as your Honour has put it to me that it is, then we - - -
DAWSON J: It is so, is it not?
MR CASTAN: It is a case in which that doctrine was applied, yes, your Honour.
DAWSON J: So it is authority for its application.
MR CASTAN: In our respectful submission, it is no more than an example of the application of that doctrine.
McHUGH J: But as a matter of decision, did it not hold there was no breach of Chapter III because these powers were invested in the judges as persona designata.
MR CASTAN: It certainly decided that, but what was happening there was the Court was engaging in a process of construction and entered into what we would respectfully say is the - and we would invite the Court to approach the matter on the basis that one does not obtain the answer to constitutional questions merely by, or only by statutory interpretation. In other words, it is a circular exercise and to the extent what I am putting does involve overruling the case.
DAWSON J: Do you apply for leave?
MR CASTAN: I do apply for leave, your Honour. I apply for leave. Our first submission is that it is not necessary but on the view it is necessary, we apply for leave, and we indicate that for the purpose of this argument we seek to ask the Court to adopt a much broader proposition.
BRENNAN CJ: Then, you may proceed to deliver your argument but the Court will consider the question of leave after we have heard from the respondents.
MR CASTAN: Yes. If the Court pleases. What we say is involved in approaching the matter as applying the doctrine as a doctrine of persona designata is an exercise in statutory interpretation as a means of providing the answer to the constitutional question. In our respectful submission, that is a circular or question-begging mode of going about the exercise. The exercise is one rather, we would submit, the proper exercise should be to determine the question of constitutional validity by reference to the basic doctrines of separation of powers, and the basic questions of whether or not functions that are inappropriate functions have been vested in the courts in a way that are inconsistent with the doctrine of separation of powers. The vesting of an administrative function in the courts, or the vesting of a non-judicial function in a judge, or the vesting of a judicial function of some kind in a non-judicial body are not, so to speak, a priori determinations.
Accepting that there can be some such examples of the kind my learned friend just touched on and the American cases have touched on to say examples of the appointments of judges to tribunals; to various kinds of tasks - the question is not determined as to whether that is an appropriate function for them to perform, or whether there is a constitutional problem by then engaging in a process of pure statutory construction. To do that, in our respectful submission, is to, in effect, abdicate the role of determining the question of constitutional validity, and in effect, hand it over to Parliament by saying to Parliament it is a matter for Parliament to devise the way in which they can characterise the people as being falling within this notion of persona and then having done that, say that is constitutionally valid. In our respectful submission, that is unhelpful and inappropriate and will not do.
It is clear that, of course, some elements of this argument, in a sense, overlap with what has been said earlier and I think your Honour Justice Dawson put that to my learned friend. And it is true that one ultimately may come back to some questions in terms of constitutional validity, one will come back to a question of compatibility or consistency or whether or not there has been in substance a breach of the fundamental principles of separation of powers, rather than an imposition on the courts' function that is an inappropriate one. But that is, we would respectfully submit, the proper approach to the matter. It is the approach that appears to have been consistently applied in the American cases and, in our respectful submission, is one which should be now adopted here.
We have set out in our submissions general propositions that embody the substance of what I have just said. It is not necessary to go through in great detail all of the references that we embodied and all the argument we embodied in our submissions because much of them seek to apply to this particular argument many of the points that have already been made by my learned friend in arguing the incompatibility issue, so I do not intend to repeat all those. Can I take your Honours to page 24 of the written submissions on behalf of the applicant where your Honours will see the basic propositions set out that are put on this topic on that page and what follows thereafter is argument in support of it.
The way the proposition is put is that independently of the issue of incompatibility the separation of powers also requires that judicial and executive power not be reposed or coexist at the same time in the one person. That is putting the general proposition at its most absolute and then, as it is considered, the concept of persona has been accepted as a permissible inroad upon the constitutional doctrine provided by the principle of separation of powers. That inroad should be accepted only for a limited purpose to the extent to which there is a true person appointed to an identified role for which a person who is a judge is suitable in his or her personal capacity.
In a sense, what we are seeking to isolate here is the problem that was identified by your Honour Justice Deane together with Justice Mason, as he was, in Hilton v Wells at page 82, point 8 of the decision in 157 CLR. I think my learned friend, Mr Merkel, referred to this passage towards the foot of page 82 where the question was raised without being answered in that dissenting judgment. At page 82 in the last paragraph after reference to Tasmanian Breweries and the discussion by Hamilton in The Federalist, your Honours posed this question:
Indeed, it may be arguable that, conformably with the underlying concept of the separation of powers, it is beyond the power of the Parliament to attach to the holding of judicial office as a member of a Ch. III court an unavoidable obligation to perform as a designated person, detached from the relevant court, administrative functions which are unrelated to the exercise of the jurisdiction of that court. However, these are questions which have not been argued in the present case and it is unnecessary for us to deal with them.
And in substance we do seek to deal with them now. We say that given that there could be a person - and using persona designata we would respectfully submit is of no assistance, but given that there could be a person who can accept some function and assuming that it is a compatible function, then to so designate all members of all Federal Courts, as this legislation does, is to turn the concept into a device and that is the way in which we put the matter in proposition two and we respectfully submit that such an outcome is not avoided by the Chief Justice of the Federal Court conveying the Attorney-General's invitation to all members of the genus of Federal Court judges to perform the relevant function and we say that is the classic example and still is the classic example, despite the amendments since Hilton v Wells, of the use of a mere formality to defeat the substance of the protection which is afforded by the doctrine and we point out what has been already discussed in detail: there are 30 out of 35 members, which is in the material, and we would respectfully submit that in those sorts of circumstances it is unrealistic to talk of any of them or all of them as persona designata.
In substance what has happened is that they have become - if one needs to use the Latin genus designatae, they are a class that have been designated and they are a class of judges and given that, that is an inappropriate way of conferring a non-judicial power, the basis upon which this argument proceeds, and we stress we contend for this purpose not a question merely of construction, we would respectfully submit, as we put at the end of proposition three, it is not in the hands of the legislature to do it in this way no matter what its intention may be. Then in paragraph 4 we have set out some of the perhaps well-known general statements and more recent statements which underlie the doctrine of a separation of powers arising from Boilermakers.
McHUGH J: You seek to divide these two arguments up in your Part II and Part III, but I am not sure that it can be done, can it? This argument that you are now on involves a conclusion that these powers are conferred on the members of the court as judges.
MR CASTAN: Yes.
McHUGH J: Then you say but what has been conferred on them is a non-judicial power.
MR CASTAN: For the purpose of Part II, yes, your Honour.
McHUGH J: Well, I know, but maybe it is not.
MR CASTAN: Well, that is right, maybe it is not and one needs to then look at that separately, and that is an alternative or different argument. If I could, with respect, I would seek to come to that - - -
McHUGH J: Yes, I know. I am not sure you can divide it up. I think that your view of one is influenced by your view of the other.
MR CASTAN: Well, of course, and if one takes the view that the function is of a particular kind, that may affect whether or not it is validly conferred on a court, of course. But, we would respectfully submit that if one proceeds on the basis of what has been the assumed basis - we look at it differently and present an alternative view, which I will come to shortly. But if one proceeds on what seems to be the perceived basis in relation to these warrants and if one assumes, as has been assumed - certainly assumed in Hilton v Wells - that it was an executive or an administrative function, then conferring it on these judges in this way, it does not help to call them persona designata; it is an executive function and it is given, in substance, to judges who are offered it in this way.
McHUGH J: Issue of search warrants is always regarded as an exercise in judicial power, is it not?
MR CASTAN: Well, there is certainly a long history to that effect. There have been decisions of this Court which suggest that it is of an executive nature. Certainly in Love's case, this Court has said - - -
McHUGH J: Well, yes, but apart from Love.
MR CASTAN: But, if it be - the analysis, when we come to this in later argument, which I was going to put as an alternative, but if pressed to leap to that alternative view by your Honour, then, of course, what one finds is that the judicial function, if it be that, has been conferred improperly on the court. They are the court, but they are deprived for the reasons my learned friend has expounded at length. They are deprived of all of the proper protections and proper functions of a court. It is conferred on the judges and then the judges are told, "Don't behave like judges and you can't do the things that judges properly can do", so it still falls. It is the worst of all possible worlds if it is a judicial function because the judges are given the job and then constrained from doing their job judicially.
DAWSON J: It may be that it can be a judicial function, but the way in which it is organised in this particular legislation shows that it is not. I mean, surely it does not always have to be a judicial function; it depends on what the function is really. I mean, what you are saying is, well when you look at this Act and the way in which these powers have to be exercised, that demonstrates it is not a judicial function, do you not, because it is not done in the way in which judges do things?
MR CASTAN: No, the way in which the doctrine has developed and particularly in Boilermakers and cases such as Davison is to, in effect, characterise functions, some of which are clearly legislative, some clearly executive and some clearly judicial and then some are capable of being conferred on one or other branch of government and there are cases dealing with instances such as bankruptcy and there is of course Quinn's Case dealing with patents registration or striking off disallowance of a patent registration. There are a variety of cases - - -
DAWSON J: Precisely, and I thought that Mr Merkel's argument was, well you look at this and you say this is not a judicial function here under this legislation and that is its fault. Do you say that?
MR CASTAN: Yes, we say our primary argument is that it is not and it is conferred on a court and it cannot be conferred on a court. That is our primary argument. We have an alternative argument that his Honour Justice McHugh asked me about which is that perhaps it is properly to be characterised as judicial and if it is judicial in the sense that it falls within one of those categories of cases that are not optional, if I can call them that, or as Professor Lane calls it, innominate - he characterises the inbetween character as innominate, a terminology that seems to have not been used elsewhere - if it is in that category, then it has that flexible character and it will take its character from the body in which it is vested, but if it is not of that character, if the correct historical analysis demonstrates that it is truly judicial and not capable of being conferred other than properly on a court and not properly capable of being exercised otherwise than in accordance with Chapter III, and that is what I think was perhaps being put to me by Justice McHugh, and if it be in that category, then the legislation fails in any event because then, if it is properly to be determined as judicial, it has been conferred on judges who are prevented from behaving like judges, to put it in a summary way.
That is really how we put it. We say that it is executive and conferred on judges and for all the reasons that have been expounded earlier not properly so. We say that one cannot escape all of that by calling it persona designata, using what is variously termed and I take your Honours - and I do not have to go through them all. I think your Honours either are familiar with or had them referred to by my learned friend, Mr Merkel, but on page 25 we refer to the various passages his Honour Justice Dixon - in paragraph 5 referred to "distinctions without differences". "Fine distinctions which some may regard as unsatisfactory" was the view of the majority in Hilton v Wells.
Then the minority - we have set out the reference:
the metaphysical notion of a Judge acting in his character or capacity as a Judge, at large, so to speak, detached from the court of which he is a member, cannot be supported as a matter of legal theory
and their Honours in the minority went on
One may ask: what is the point of our insisting, in conformity with the dictates of the Boilermakers Case, that non-judicial functions shall not be given to a Chapter III court, if it is legitimate for Parliament to adopt the expedient of entrusting those functions to judges personally in lieu of pursuing the proscribed alternative of giving the functions to the Court to which the judges belong?
And that embodies, in substance, the point we make about the constitutional significance of this as having to be tested by reference to constitutional criteria, not by reference to what we might term, in effect, legislative devices.
There is an American authority very much to the same effect which we have put towards the foot of the page:
"To argue that we may separate a judge as the individual servant of the State from a judge sitting as a judicial officer is too specious to stand the constitutional test imposed in this State for more than a hundred years."
That is from Local 170 v Gadola. I would add to those references his Honour Mr Justice Dixon at page 97 in Mayer. Without taking your Honours to it, there is a passage at page 97 where his Honour speaks of - this is not, in our submission, as typed up:
The more metaphysical parts of the judgments -
referring to earlier judgments in the courts -
are difficult to follow and import unreal distinctions.
So there are numerous references to this notion of the artificiality, the distinctions without differences, metaphysical notions. In our respectful submission, it is appropriate for this Court to dispose of those metaphysical notions and those distinctions without differences and to look to the substance of the constitutional tests that are reflected in the passage in the dissenting judgment that appears about two-thirds down page 25 of our submissions in the dissenting judgment from Hilton v Wells and that that would reflect the appropriate test to adopt.
BRENNAN CJ: I understand the proposition that you want to abandon the doctrine of persona designata, but it seemed in your paragraph 1 that you wanted to save it for some limited purpose.
MR CASTAN: No, all we say is that dropping the doctrine does not carry with it the notion that one cannot appoint persons to specific functions. Perhaps it is not well expressed. We do not say that dropping the doctrine means that a judge can never become the President of the Administrative Appeals Tribunal or the Land Rights Commissioner or - - -
BRENNAN CJ: Do you mean that the doctrine of persona designata should be dropped and you are then relegated to the inquiry as to whether the performance of a particular function by a judge is consistent with the retention and exercise of judicial office?
MR CASTAN: Yes. I hesitate slightly only to this extent, that the way your Honour has posed it, retention with judicial office perhaps does not fully express the notion that I was endeavouring to put. It is rather consistent with the Chapter III judicial functions being exercised by courts.
BRENNAN CJ: I said retention and exercise of judicial office.
MR CASTAN: And exercise of judicial office pursuant to Chapter III; in effect consistent with the appropriate application of the doctrine's separation of powers.
BRENNAN CJ: Your argument then meshes in with Mr Merkel's in the sense that what you say is drop persona designata and adopt the Merkel approach.
MR CASTAN: Yes, if your Honour presses me that far, but - - -
BRENNAN CJ: Is that the argument that comes from your side of the Bar table, is what I am trying to find out?
MR CASTAN: In substance, yes. What we say is that one drops the notion of persona designata and looks to the operation of Chapter III, and in substance, the way in which one would test that is to see whether judges can appropriately carry out the functions which are vested in them, and there will be some situations in which it is appropriate and others in which it is manifestly not. But, in substance, one comes back to what we would term "the constitutional test".
What we have argued is in terms of compatibility on our first leg; but in substance what we are putting is that persona designata does not help one in resolving the appropriateness - if I can use that term - or the operation of the Chapter III doctrine, the separation of powers doctrine. If one is to carry through the principles of the Boilermakers Case, it does not mean that judges can never carry out any other function. but it does mean that in doing so they are limited constitutionally.
GUMMOW J: Historically, where would this come from, Mr Castan? One remembers that Lord Mansfield was an active member of Cabinet, I think.
MR CASTAN: Yes. Historically, if one looks to the - - -
GUMMOW J: I can see there is a historical route for section 44(iv) of the Constitution with offices of profit with the legislators vis-a-vis the executive. But the judges were segregated out much later, I think, and more definitely, and that is why we are here in a way.
MR CASTAN: Of course, and if one looks to history in the ultimate English, the history of English law, one does not easily find the doctrine of separation of powers. It has emerged, of course, in the American context and emerged in the Australian context. In the English framework one does not find those sorts of divisions and, of course, in the absence of a written Constitution, different sorts of considerations have developed.
GUMMOW J: I found it expressly in that New York Constitution that Justice Cardozo was speaking about in Richardson that Mr Merkel took us to.
MR CASTAN: Yes.
GUMMOW J: The point is made in the later US federal decisions that there is no such express provision in the federal Constitution in the United States.
MR CASTAN: No, but it is treated as fundamental certainly in the context of Australian constitutional law and I would respectfully submit we do not need to go behind that unless we are in a situation in which Boilermakers is to be totally revisited. It suffices for our purposes here to take Boilermakers as a sufficient starting point. The argument there was put very much on the basis that there were fundamental principles at stake. The concluding sentence of the argument as reported of Mr Eggleston as he was is an enthusiastic invitation to the High Court to restate the principles as absolutely essential to the framework of Australian constitutional law, which the Court did, and I would respectfully submit it is not necessary to go behind that point and in so far as this Court takes Boilermakers still as setting the criterion for the operation of the doctrines of interpretation of the Constitution, in our respectful submission, it provides a framework within which one can determine these sorts of questions concerning the - - -
GUMMOW J: I understand how you say it provides the framework, but one has to know precisely what the proposition is that is immediately relevant here that is derived from that framework, which one is anxious to know whether you accept what the Chief Justice put or whether you modify it slightly and, if so, how?
MR CASTAN: We accept it and we express it in the way in which it is expressed in paragraph 6 of our written submissions, which does not use the terminology of persona, but simply states there may be some non-judicial function which it is appropriate for a particular federal judge to undertake in a personal capacity in appropriate and limited circumstances. Asking what those will be, or asking what the principle is, has about it the same difficulty that a question that his Honour the Chief Justice put to my learned friend, about the principle because the principle does not necessarily emerge, although one can speak about the operation of judges undertaking tasks that are appropriate for judges and are of the kind that are conducted in a way in which does not cause any embarrassment to the functioning of the Chapter III power. Beyond that it is difficult to go.
DEANE J: That proposition assumes persona designata, unless you are putting an argument that goes much further than I had understood. I mean, would you press 6 or accept 6 if instead of a particular federal judge you said "a Federal Court"? In other words, the better approach to submit is to accept the possibility that there may be some non-ancillary executive function conferred upon a Federal Court consistently with the doctrine of separation of powers.
MR CASTAN: If by non-ancillary your Honour means not ancillary to judicial power, no.
DEANE J: Well then, the reason why you come to your proposition in 6 is that you have accepted persona designata, but you are simply denying that satisfaction of it is a criterion of validity.
MR CASTAN: What we are really putting is that the use of the terminology and the examination of the statute to decide whether the legislature was seeking to do this or that is not a useful way of determining the answer to this kind of question. That is really - - -
DEANE J: What I am querying is your apparent wholesale jettisoning of persona designata and suggesting to you that it is a critical test at the threshold. If you survive the test and go into persona designata territory then you come into the area of Mr Merkel's argument, but if you do not survive the test and you are dealing with non-ancillary executive functions, invalidity automatically follows.
MR CASTAN: The difficulty with formulating it in that way is that that assumes that there is some element that goes to constitute this notion of persona designata and, in our respectful submission, it is unhelpful because one finishes up simply doing what has occurred in the various cases to date, and that is to undertake some bare process of statutory interpretation.
DEANE J: But if you say that non-ancillary executive power cannot be conferred on a court, or a Chapter III court, but that in some circumstances non-ancillary executive power can be conferred on a judge in his individual capacity, you have now the persona designata test and there is just no escape from it.
MR CASTAN: We have sought to move away from the language because the way in which the language has been used has tended to shift the Court, if I may say so with respect, towards what I have termed this bare process of statutory interpretation and, in our respectful submission, that is an inappropriate way of undertaking the matter. We have preserved in paragraph 6, as your Honour will see, the reference to undertaking in a personal capacity so that it may be that we are merely debating the use of language here, your Honour, but certainly we would respectfully submit that the proposition as we put it does not deny the possibility of there being functions vested in a judge in his personal capacity.
That may be a possibility and it may be necessary to decide whether that has occurred, but the ultimate test of the question will not be whether the legislature intended to do that or the legislature did not intend to do that. In our respectful submission, what has occurred in the cases is this tendency to look at the matter as a pure matter of statutory interpretation which tends to avoid what we would call the substantive question, which is the Chapter III separation of powers question, and that is why - - -
BRENNAN CJ: Does your question go any further than this, to say that the persona designata criterion is a necessary but not necessarily sufficient test to determine the validity of a purported exercise of non-ancillary executive power?
MR CASTAN: Yes, I would accede to that, though we have sought to put the matter on the basis that it would be better to proceed by not expressing it as a persona designata test at all. But, leaving aside the verbal formulations, in substance, I would accede to that as put by your Honour. It would lead to a situation where, in substance, what we are putting, that is to say, one can vest some functions in judges in a personal capacity. But, having done so, that will not provide the answer to whether or not that is a proper vesting or whether or not there has been a breach of proper constitutional principle.
DEANE J: So, we substitute judges in a personal capacity for persona designata, which is what I thought it meant.
MR CASTAN: Well, it may be that we are making too much of the language but, in substance, what we seek to say is that the way - or, perhaps, I will put it another way: the way in which the test has been used in the past has led to a distortion, or led to a misapplication, we would respectfully put, of principle. It is necessary to reformulate the principle and that does not involve, as we put it, the denial that there can be some personal functions that are vested. But it does not provide an answer to say that something has been vested in a personal capacity and that is really what we put in that sentence in paragraph 6. Perhaps this has not been put as felicitously as it might, but that is what we are endeavouring to put in paragraph 6. It can still occur, but it will not provide an answer.
BRENNAN CJ: I think we have understood that, because you are in agreement with Justice Deane's proposition.
MR CASTAN: Yes, I think that is so. I have hesitated perhaps because of the complexity of notions that have grown up around the use of the terminology. We have given some references to some articles in paragraph 6 which discuss some of the inherent problems associated with what some writers have called the excessive use of judges or the excessive use of the doctrine as a means of justifying the use of judges in various functions, and we would commend those to your Honours. We then seek in paragraph 7 simply to say well, what has occurred here, and this has been examined in detail, is to confer on all persons whose qualification is that of being a judge, a particular function, in substance, and that is exactly creating the distinction without a difference that is referred to in those cases. We would go so far as to say it does amount to the transparent endeavour to undermine the doctrine in Boilermakers.
Now, we do give reference the top of page 26 to a most useful discussion in Re Herman v Deputy Attorney-General for Canada (1978) 91 DLR (3d) 3 - - -
GUMMOW J: That all turned on the question of whether there was an appeal or not, did it not?
MR CASTAN: Yes, and what had happened in Canada is that on questions of appeal and questions of characterisation and all sorts of procedural issues, they had become, if I may say so with respect, somewhat bogged down in the notion of persona designata and there is a degree of impatience in the judgment of Chief Justice Laskin and the judgment of Justice Dickson in that case, with the way in which the doctrine had grown up and,in effect, they said, look we can scrap the entire doctrine.
GUMMOW J: The distinction was it was administrative review with persona designata, if not, appeal.
MR CASTAN: Yes, that is correct, your Honour.
GUMMOW J: In that case if appeal, it would have to go through the Ontario structure, I suppose; if administrative review, it would go to the Federal Court.
MR CASTAN: Yes, that is correct but there is an examination and that is analogous to some of the earlier Australian cases dealing with the question of whether there is an appeal from a judge in chambers, which are discussed in Mayer and subsequently - - -
GUMMOW J: And really with the treatment of federal judges as 75(v) officers as well.
MR CASTAN: Yes, those sorts of questions arise but, in our respectful submission, there has grown up a notion that the matter is determinative of constitutional questions by the exercise of, in effect, a discretion in the Parliament to choose which way Chapter III courts will function and, in our respectful submission, they cannot and should not be permitted to do that and that has occurred here.
I am reminded there is one other reference that we have not given in the materials and which I would also provide to the Court dealing with a similar kind of approach in the American authorities that has not yet been provided to your Honours. It is the case of US v Smith (1988) 686 F.Supp 847 in the United States District Court in Colorado and at page 855 after discussing the judicial branch it said:
When we are dealing, as here, with the conduct of individuals holding offices within the three branches of government, severance of the individual from the position he held may be possible in some circumstances with a member of the legislative or the executive. With a member of the judiciary, however, the distinction is conceptually facile -
is the phrase used by the court. And we point out in paragraph 8 that the proper principle which we would respectfully submit should be adopted is that expounded in the minority judgment in Hilton v Wells and expressed at the top of page 27 of our submission. "there are compelling reasons why the court should strictly maintain and apply established principle by insisting upon a clear expression of legislative intention before holding that functions entrusted to a judge of a Federal Court are exercisable by him personally".
One would add to that that one then applies to that the test of whether or not there has been an interference with the appropriate principles of separation of powers. In reliance upon the specific matters we then draw attention to in paragraph 9, going over to pages 27 to 29 are set out there and they are, I think, all matters to which attention has been drawn in the course of my learned friend Mr Merkel's submission.
They are, of course, the use of the term "eligible judge", that only a judge can be appointed at the consent as the, in effect, artificial element. The numbers are set out at the foot of page 27 and that has been dealt with, and as we put at the foot of page 27 on the fourth last line, the practical operation of the Act is to create a "genus" of persons who have this function conferred on them, rather than an identified individual. And from 9.4 through till 9.12, a number of matters are referred to which I would commend to your Honours. I do not think I need to take your Honours through all of these. There is one I would take your Honours to. At page 61, which I am not sure have been drawn to your Honours' attention, page 61 of the cause removed book, which is to actually see the way in which the warrant was signed in the present case.
I would draw your Honours' attention to the foot of page 61, the signature, the typed word and the stamp, all of which - and at page 65, I would draw your Honours' attention to the form under the regulation, Schedule 1, and at the foot of the page one sees that that formula that was used by the judge is the formula that is required by the regulations. At the foot of page 65, there appears "dated" and the word "judge" and that is repeated. That is the telegram form; 67, I think is the telephone form which is the same. I have given your Honours the wrong reference. I see that it is - - -
BRENNAN CJ: Have you finished this portion of your argument, then?
MR CASTAN: Perhaps there is just one other point I would seek to make before concluding this portion and that is the point that is at 9, point 10 and that is that reference to immunity which my learned friend, Mr Merkel, drew attention to in section 6D(4). We would say it is an immunity that would not usually be conferred on mere persona designata. We refer to the request of the judges; we say such a request can only be made in their capacity as judges; we contrast the position of the Attorney-General under section 9 and the Director-General under section 10 who also can authorise warrants but who do not have such protection and we say this tends to emphasise the position. The rest I do not think we need to take your Honours to at this stage, your Honours having had much of it already expounded.
BRENNAN CJ: What is your estimate of time, now, Mr Castan?
MR CASTAN: I would say no more than half an hour and probably less, your Honour. I was going to deal fairly quickly with the last part.
BRENNAN CJ: Yes. Mr Weinberg, how long do you think?
MR WEINBERG: We think about an hour or a little over an hour, your Honour.
BRENNAN CJ: Yes. Mr Solicitor?
MR GRIFFITH: Less than an hour, your Honour.
BRENNAN CJ: The Court will adjourn until 9.45 am tomorrow morning.
AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 31 MAY 1995
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