The Illegality Issue
72 The Crown submits that no issue of illegality has arisen on the facts of the present case.
73 With respect to this issue the applicants assert that two inferences were available on the basis of the original certificate set out at [10] above. The first inference is that there was a recording by employees of Optus. This inference is, in my opinion, open.
74 The second inference for which the applicants contend is that there was a separate and later communication by Optus employees of the information they had recorded to employees of ASIO. In my opinion, this inference is not open or, at least, no more than faintly arguable.
75 The critical terminology is that found in par 6 of the original certificate as set out in par [10] above which states, to repeat: "The information which was recorded … was periodically supplied in a process established by Optus employees to employees of the Australian Security Intelligence Organisation". The import of this statement turns on the word "process". It is not apparent that the process involved any act on the part of Optus employees. Nor does the word "recorded" indicate that what was "supplied" was the Optus illegal 'recording', if any, as distinct from passing on the same information as was 'recorded'. It was the "information" that was said to have been "supplied" not the "record", if any.
76 This analysis confirms the proposition that the communication of the information to ASIO by this "process" was as described in the terminology of par 5 of the final certificate namely that the communication was "transmitted directly to ASIO".
77 No doubt for this reason Whealy J concluded, in what he described as a "preliminary reaction" as follows:
"[97] … I accept that the first certificate is rather opaque. I suspect that there may have been a certain wariness on the part of the certifier to be overtly specific about the way intercepts are transmitted to ASIO … I do not, however, read the earlier certificate as negating the fact that the interceptions went directly through the carrier to the agency. Read in that way, the second certificate is not contradictory of the first at all."
78 As I have indicated, there is an arguable case, on the basis of the first certificate, that Optus employees listened to and recorded the intercepted communication. If that occurred it would be a contravention of s 7(1)(a) of the TIA on the basis that those employees intercepted a communication in circumstances where they were not authorised to do so by a warrant. The relevant warrant authorised only ASIO officers to conduct the interception.
79 If this did in fact occur then the recording of the interception by the Optus employees would not have the character of "lawfully intercepted information" as defined in s 6E(1) of the TIA, which provides:
"6E(1) … A reference in this Act of lawfully intercepted information is a reference to information obtained … by intercepting, otherwise than in contravention to subsection 7(1), a communication passing over a telecommunications system."
80 In the submissions made by the applicants in this respect emphasis was placed upon s 63(1)(a). The section provides:
"63(1) 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 to a proceeding
lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1)."
81 One of the provisions in the Part, to which s 63(1) is made subject, is s 74 which states:
"74(1) A person may give lawfully obtained information (other than foreign intelligence information) in evidence in an exempt proceeding."
82 The applicants' submission is that, as the ASIO employees received the information recorded by Optus, that information retained its character in the hands of the ASIO employees, and subsequently the Crown, as being information obtained in contravention of s 7(1). Accordingly, s 63(1)(b) operated to prevent that information being given in evidence in the proceedings.
83 I observe that with respect to this step in the applicants' submissions it does not matter whether the information is "lawfully obtained" or obtained in contravention of s 7(1). Section 63(b) applies to all intercepted information. The relevant issue is posed by s 74 which creates an exception for "lawfully obtained information" in an exempt proceeding, such as the present proceeding.
84 Accordingly, the crucial question on the issue of illegality is whether or not the information received by ASIO was "lawfully obtained information", as defined in s 6E(1), within s 74(1).
85 If, as Whealy J found, on a preliminary basis, the transmission of the information to ASIO was automatic, so that the listening and recording by Optus employees was not the source of the information to ASIO, then that interception did have the quality of "lawfully obtained information".
86 Pursuant to the warrant ASIO employees were authorised to conduct an intercept. If, as Whealy J found by way of a "preliminary reaction", the technical means of interception occurred in such a manner as not to require any step by Optus employees between the technical interception and the communication to ASIO employees, then there is no contravention of s 7(1) in that respect. The fact, if it be a fact, that there was a contravention by reason of the recording and/or listening to the interception by Optus employees, as may be suggested on the original certificate, does not affect the transmission to ASIO. Nor does it result in the characterisation of that transmission as something other than "lawfully obtained information".
87 Nevertheless, as his Honour made the relevant finding only on a preliminary basis, it is appropriate for this Court to consider the applicants' submissions on the alternative basis that it is at least arguable that what Optus employees recorded was what was transmitted to ASIO. On this assumption s 63(1)(a) would be engaged and the information would not be "lawfully obtained information" within s 6E(1).
88 Section 18(2) of the TIA repeats, in substance, s 25A of the TIA introduced by amendment in 1985. That section made provision for the same kind of certificate which, similarly, would constitute "conclusive evidence" of matters stated in it.
89 In Hilton v Wells (1985) 157 CLR 57 the High Court determined, by majority, that the existing legislative scheme did not prohibit the admission into evidence of information obtained by an illegal interception. The general discretion, subsequently reflected in s 138 of the Evidence Act 1995 could be invoked but there was no further restraint. (Section 137 of that Act made further provision.)
90 In 1987, the TIA was amended to overcome the effects of Hilton v Wells. (See Grollo v Palmer (1995) 184 CLR 348 at 385-386; John Fairfax Publications v Doe (Jockey Tapes case) (1995) 37 NSWLR 81 at 85, 88.) Part VII of the TIA, which includes ss 63, 74, 75 and 76, constitutes a detailed and restrictive scheme in relation to admissibility of evidence obtained by the interception of telecommunications. The interaction of this scheme with s 137 and s 138 of the Evidence Act was not the subject of submissions on this appeal.
91 Former s 25A was re-enacted as part of that scheme in the new s 61. In 1993, s 18 was inserted in lieu of the 1987 version of s 61. Accordingly, the conclusive nature of a certificate has been a feature of the legislative scheme since 1985.
92 There may be a tension between the stringency of the regime created by Pt VII of the Act with respect to the admissibility of information obtained by illegal interception, on the one hand, and the practical impossibility of establishing such illegality in respects which are expressly and permissibly addressed in a certificate which has conclusive effect. This tension raises questions of statutory interpretation. It does not raise, in my opinion, a constitutional issue as to the limits of the powers of the Commonwealth Parliament which arise by reason of the separation of powers under Chapter III of the Constitution or by reason of the provision for trial by jury in s 80.
93 In this regard I can see no relevant distinction between s 18(2) of the TIA and s 15X of the Crimes Act 1914 (Cth) considered by the High Court in Nicholas supra. Section 15X operated with retrospective effect to restrict the application of the common law discretion to refuse to admit illegally obtained evidence. That discretion had been reaffirmed in Ridgeway v The Queen (1995) 184 CLR 19 with respect to a prosecution under s 233B of the Customs Act 1901 (Cth). Nicholas also involved a prosecution under that section.
94 Section 15X was enacted as part of a legislative scheme in response to the decision in Ridgeway. Some sections of the amending legislation decriminalised the involvement of a law enforcement officer in controlled operations for the delivery of drugs to drug dealers. Section 15X applied to controlled operations which had occurred before the commencement of the Act. It stated, relevantly:
"In determining … whether evidence that narcotic goods were imported… should be admitted, the fact that a law enforcement officer committed an offence … is to be disregarded…"
95 I have had occasion to consider Nicholas in Lodhi v R [2007] NSWCCA 360 and reiterate my observations at pars [60]-[61]:
"[60] Section 15X did not abolish the relevant discretion. It removed an element, albeit a particularly pertinent, indeed critical, element, from the process of exercising the discretion.
[61] Four of the majority judgments in Nicholas (Brennan CJ, Toohey, Gummow and Hayne JJ) emphasised that s 15X limited the discretion of the Court to exclude evidence and that the common law of evidence had often been changed by legislation. (See at [23]-[24], [25]-[26], [53], [55], [151], [161]-[162], [235]-[236], [238].)"
96 The certificate in issue in the present case, has a similar effect to that identified. It does not abolish the relevant power to exclude evidence. However, on the argument propounded by the applicants, and assuming the validity of par 5 of the final certificate, the conclusive nature of such a statement in the certificate will, in substance, mean, paraphrasing s 15X, "the fact that an Optus employee committed an offence … is to be disregarded".
97 I attach particular significance to the fact that four judges of the majority in Nicholas (Brennan CJ, Toohey, Gummow and Hayne JJ) emphasised that s 15X limited the discretion of the court to exclude evidence and that the common law of evidence had often been changed by legislation. (See at [23]-[24], [25]-[26], [53], [55], [151], [161], [162], [235]-[236], [238].)
98 Section 18(2) of the TIA is also a change to the law of evidence which directly impinges on both the common law principle with respect to the admissibility of evidence in a criminal prosecution and a stringent statutory regime. This is not a relevant difference for purposes of separation of powers or trial by jury analysis.
99 The legislative scheme for dealing with illegally obtained evidence found in the TIA, like the common law principle, involves the balancing of conflicting interests. This has always been recognised as the consideration at the heart of the discretion to exclude illegally obtained evidence. As the joint judgment of Stephen and Aicken JJ, frequently referred to, in Bunning v Cross (1978) 141 CLR 54 at 74, put it what is involved is:
" … the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval or even encouragement, being given to the unlawful conduct of those whose task it is to influence the law."
100 See also the analysis of the case law by Brennan CJ in Nicholas supra at [32]-[35].
101 Each of the four majority judgments in Nicholas emphasised that the discretion upon which s 15X impinged, involved the balancing of conflicting public policy considerations. Their Honours accepted that the alteration of the way the balance should be struck in that case did not constitute an impermissible usurpation of the judicial power (See at 35-36, 55, 159-160, 164-234.)
102 As Gummow J noted at 160:
"The legislature has now … struck a different balance between these competing interests."
103 And as Hayne J said at 238:
"In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusion on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the court, by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished."
104 Furthermore, as Brennan CJ put it at [38]:
"In striking a balance between the factors relevant to the Ridgeway discretion, subject to the conditions prescribed by the Div 3 of Pt 1AB, the Parliament expresses where the balance of public interests lies. The declaration of the balance of public interest devolves on the court when the Parliament is silent, but once the Parliament has spoken, it is the voice of the Parliament that declares where the balance of the public interest lies."
105 Similarly in the present case, s 18(2) involves a conflict of public interests of the same kind identified by the High Court in Nicholas and which was found not to involve any usurpation of the judicial power.
106 As I have indicated above, the origin of s 18(2) was in s 25A of the TIA, which, when it was introduced, was the subject of the following explanation by the then Attorney General:
"Initially, material obtained by interception was used for criminal intelligence purposes. However, as it is admissible as evidence in criminal proceedings, there are cases where it is appropriate and necessary to put the material into evidence. Strict proof of actions taken by Telecom employees would require those employees to give evidence in court. Telecom management had been advised that employees are unwilling to give such evidence because public identification of their involvement in narcotics interception would cause fear for their own safety, that of their families and that of their fellow workers.
Telecommunications interception is of great assistance to the Australian Federal Police in the prevention and detection of drug offences. It would be contrary to the public interest for the lawful interception of telecommunications to be reduced or prejudiced. In this Bill, the Government proposes that evidence of acts performed by Telecom employees to enable the execution of an interception warrant to be given by a certificate signed by the Managing Director of Telecom. Such a certificate would be conclusive proof of the matters contained therein. The matters which will be contained in the certificate are formal matters of evidence only and do not go to any issue before the court.
The Government recognises that there is an objection to a prosecutor seeking to establish, by certificate or averment, an element of the prosecution case going to the conduct of the accused. However, proof that a warrant was executed strictly in compliance with its terms is a purely formal matter." (Hansard, House of Representatives, 9 May 1985, p 1980.)
107 Section 18(2) involves a balancing of public interests, by weighing the public interest to ensure that employees of telecommunications corporations act in support of the process of law enforcement, on the one hand, against the public interest in the exclusion of unlawfully obtained evidence. The latter public interest is expressly recognised by the legislative scheme adopted in the TIA.
108 In my opinion, the fact that s 18(2) appears in the same legislation that creates the scheme restricting admissibility makes the conclusion even clearer than was the case in Nicholas. Where the challenged provision appears in the same legislative scheme then the principle of statutory interpretation that the act must be read as a whole and effect given to all parts of it, is such that it cannot be said that the rights or expectations created by the legislative scheme with respect to the exclusion of illegally obtained intercept evidence has constitutional protection.
109 The degree of modification of (I do not use the word interference with) the judicial process constituted by the limitation enacted in s 15X of the Crimes Act 1914 (Cth), which was upheld in Nicholas, is directly analogous, in my opinion, to s 18(2) of the TIA. With respect to controlled operations that occurred prior to the enactment of s 15X, that section provided, as noted, that the illegality "is to be disregarded".
110 In the regime which the TIA creates for the admissibility of evidence obtained by interception, both lawful and unlawful, s 18(2) has a similar consequence by ensuring that the conclusive nature of the certificate prevents the Court, as a practical matter, from determining the contrary in the case of factual matters properly within the statutory power to certify. In this regard, it is pertinent to note that the power extends only to "acts or things done … to enable a warrant to be executed". This is a significant restraint, the bounds of which were not explored before Whealy J or in this Court.
111 The Court must give full effect to the entire statutory regime created by the TIA, both with respect to the significant restrictions on the ability to tender the product of unlawful interceptions and on the practical difficulty that a s 18(2) certificate places in the way of agitating the issue. This raises issues of statutory interpretation, not constitutional validity.
112 The applicants further contend that s 18(2) impermissibly interferes with the concept of trial by jury by removing from the judge his or her role in determining what evidence is properly receivable by the jury.
113 O'Connor J referred, in a frequently cited passage from Huddart Parker v Moorehead, supra at 375, to the proposition that one of the essential features of a trial by jury is that such trial occur "under the guidance of a judge". I will set out the passage below.
114 Aspects of the role of the judge in a jury trial may constitute, in some respects, one of the essential characteristics of such a trial. Nevertheless identification of the circumstances in which a judge is able to reject evidence on the ground of illegality is a matter which by its very nature is capable of modification by statute. It is, relevantly, a statute that creates the illegality. Modifying that effect does not impinge on one of the essential characteristics of trial by jury or upon one of the predominant characteristics of the exercise of judicial power.
115 The judgments in Nicholas do, in my opinion, establish that the creation of a statutory regime which determines what constitutes relevant illegality and which restricts the ability to establish such illegality, does not interfere with the separation of powers. By parity of reasoning, such a regime does not impinge upon any essential characteristic of the constitutional conception of trial by jury. In each case the effect of the statute is to expand, not to restrict, the range of relevant facts before the tribunal of fact. In this critical respect there is a difference between the illegality issue and the chain of evidence issue.