Statutory and regulatory background
5 The Australian Crime Commission, which is established by s 7 of the Act, and is, by regulation, also known as the Australian Criminal Intelligence Commission (ACIC), has a range of functions. They include the collection, correlation, analysis and dissemination of criminal information and intelligence, and the ability to undertake intelligence operations or to investigate matters relating to "federally relevant criminal activity": s 7C(1)(c).
6 In carrying out these particular functions, examiners appointed under Div 3 of Pt 2 of the Act may require the production of specified information or documents, and examiners or police officers on the staff of the ACIC may obtain and execute search warrants: ss 20-22. Examiners are conferred with the power to conduct examinations for the purpose of special ACC operations and investigations: s 24A. An examiner may summon a person to appear before the examiner to give evidence before them and to produce such documents or other things as are referred to in the summons: s 28. It is an offence for a person summonsed to appear as a witness at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question that they are required to answer, or to refuse or fail to produce a document or thing which they were required by the summons to produce: s 30.
7 The power to issue an arrest warrant is contained in s 31 of the Act and is relevantly in the following terms:
31 Warrant for arrest of witness
(1) Where, upon application by an examiner, a Judge of the Federal Court or of the Supreme Court of a State or Territory sitting in chambers is satisfied by evidence on oath that there are reasonable grounds to believe:
(a) that a person who has been ordered, under section 24, to deliver a travel document to the examiner, whether or not the person has complied with the order, is nevertheless likely to leave Australia for the purpose of avoiding giving evidence before the examiner; or
(b) that a person in relation to whom a summons has been issued under subsection 28(1):
(i) has absconded or is likely to abscond; or
(ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or
(c) that a person has committed an offence under subsection 30(1) or is likely to do so;
the Judge may issue a warrant for the apprehension of the person.
….
(3) Where a person is apprehended in pursuance of a warrant under this section, he or she shall be brought, as soon as practicable, before a Judge of the Federal Court or of the Supreme Court of a State or Territory and the Judge may:
(a) admit the person to bail, with such security as the Judge thinks fit, on such conditions as he or she thinks necessary to ensure the appearance of the person as a witness before the examiner;
(b) order the continued detention of the person for the purposes of ensuring his or her appearance as such a witness; or
(c) order the release of the person.
…
8 The warrant in this case was issued on the basis of s 31(1)(c). The relevant offences in s 30 are as follows:
30 Failure of witnesses to attend and answer questions
Failure to attend
(1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further attendance, by the examiner.
9 Also relevant is s 55C(2) of the Act which is in the following terms:
55C No obligation to perform duties etc.
…
(2) To avoid doubt, neither this Act nor any other law of the Commonwealth imposes any obligation on a Judge of the Federal Court or a Judge of the Federal Circuit Court to perform a duty or function, or exercise a power, that relates to an investigation by the ACC of a matter, or to the collection, correlation, analysis or dissemination by the ACC of criminal information and intelligence, relating to a relevant criminal activity if:
(a) the relevant criminal activity is not a federally relevant criminal activity; or
(b) the imposition of the obligation is otherwise in contravention of any constitutional doctrine restricting the duties that may be conferred on Judges of a court created by the Parliament.
Factual background
10 On 25 June 2018, the second respondent, Jeffrey Philip Anderson (the Examiner) issued a summons pursuant to s 28 of the Act which required the applicant to appear before an examiner to give evidence and produce certain documents in relation to serious drug and money laundering offences. This was part of the ACIC investigation known as the Highest Risk Criminal Targets No. 2 special investigation, which had been approved by the Board of the ACIC by instrument under s 7C of the Act, by resolution on 4 September 2013 (as amended on 8 June 2016).
11 On 26 June 2018 that first summons was served on the applicant at Adelaide airport. At that time the applicant told ACIC staff that he was shortly moving with his family to Singapore to live. The applicant had flight bookings that day to Singapore. The applicant's plans to move his family were longstanding. The applicant had been under physical surveillance from at least May 2018 and on 23 and 24 May 2018 operatives observed moving vans at his former address and boxes and furniture being removed from the premises.
12 On 26 June 2018 there was a hearing before the Examiner at which time senior counsel for the applicant submitted that the summons was invalid. That submission was accepted by the Examiner and the applicant was discharged under that summons. Nonetheless proceedings were instituted in the Federal Circuit Court challenging the validity of that first summons.
13 On 28 June 2018 the Examiner issued a second summons pursuant to the same investigation which required the applicant to appear for an examination on 3 July 2018 at 10am. That summons and a second notice to produce were served on the applicant that day at his solicitor's office.
14 On 2 July 2018, in the Federal Circuit Court, counsel for the Examiner undertook that the Examiner would adjourn the examination proposed to take place on 3 July 2018 without requiring the applicant's attendance. The Examiner's undertaking was that the examination pursuant to the summons would not be conducted until the resolution of the Federal Circuit Court proceedings challenging the validity of the summons. On 2 July 2018 the applicant gave an undertaking to the Federal Circuit Court, through senior counsel, not to leave Australia until the conclusion of the proceedings challenging the validity of the summons. On that basis the ACIC did not press for the applicant to surrender his passport. On 2 July 2018 the applicant also amended the pleading in the Federal Circuit Court proceedings to include a challenge to the second summons which had been issued.
15 On 3 July 2018, the Examiner excused the applicant from attending that day and consistent with the undertaking he had given, adjourned the examination for mention on 9 July 2018.
16 The applicant's challenge to the two summonses issued by the Examiner was heard in the Federal Circuit Court on 6 July 2018. At the conclusion of the hearing the Court reserved its judgment on the application for final relief. Senior counsel for the applicant confirmed to the Federal Circuit Court that the previous undertaking that the applicant would not leave Australia until the resolution of the proceedings still applied.
17 Later that day, on 6 July 2018, the ACIC applied to the first respondent for a warrant to arrest the applicant on the basis that he was likely to abscond. The application was made on the basis that the Examiner was concerned that the applicant might act contrary to the undertaking given to the Federal Circuit Court that day not to leave Australia. The Examiner sought a condition in the warrant that it only be executed if the applicant attended an airport for the purpose of departing Australia. The first respondent refused that application for a warrant.
18 On 9 July 2018, the Examiner further adjourned the examination. On 18 July 2018 the hearing was further adjourned to 6 August 2018. It appears that the applicant was excused from attending on both occasions. On 6 August 2018 the matter was again adjourned to 21 August 2018, and the applicant was also excused from attending on that occasion.
19 On the evening of 8 August 2018, the applicant triggered an alert at Melbourne International Airport by entering the border controlled area of the airport to board a flight to Hong Kong. At the time that he triggered the alert, the decision in the Federal Circuit Court proceedings remained reserved.
20 The Examiner made a further application for the issue of an arrest warrant via two employees of the ACIC. The circumstances of the application, based on the affidavit of Judith Sharon Jefferson sworn on 9 April 2019 and read by the second, third and fourth respondents (hereafter referred to as the respondents) at the hearing, is as follows (with any errors in the original):
10. At 8.29pm on 8 August 2018 I received a text message on my phone from Ross Daniel Perkins, Team Leader, Investigations in the Adelaide Office of the ACIC. The text message said that the applicant "... is at melb airport and has triggered an alert. He's on a 1140 hr flight to Hong Kong (melb time). Are we able to get a warrant?''
10.1 I understood the text message to mean that a law enforcement system had identified that the Applicant had attended Melbourne International Airport as a passenger and that the flight he was booked on was leaving at 11.40pm (Melbourne time) or 11.10pm Adelaide time for an international destination.
10.2 I understood the request for a warrant to be a reference to whether an application for a warrant of apprehension under s 31(1) of the ACC Act could be made in the circumstances.
11. I attended to the application and warrant documentation and reviewed and settled the affidavit in support of the application. I printed and collated the materials, gathered a Bible and my stamp at approximately 9.20pm and, in the company of Mr Perkins, we drove to the Examiner's residence.
12. I attended with Mr Perkins on the Examiner at approximately 9.30pm. I presented the materials to the Examiner. He reviewed the materials and made a small hand-written amendment to his affidavit. I observed the Examiner sign the application and then took his affidavit, administering his oath. I placed the application, the collated affidavit with annexures, and the warrant instrument in an envelope and sealed the envelope. A partially redacted copy of the Examiner's affidavit is annexed hereto and marked "JSJ-2". I explain the redactions at paragraph [19] below.
13. In the company of Mr Perkins we reached the Federal Court building at approximately 9.45pm. We were shown to the waiting area where I handed the seal envelope with the warrant documents to a Registry staff member for presentation to the Judge in Chambers.
14. At approximately 10.15pm, the Registry staff member escorted Mr Perkins and I to the Judge's conference room. The honourable Justice White entered the room with the warrant materials in hand.
15. I did not take any notes of what occurred while I applied for the warrant on the Examiner's behalf. However, my strong independent recollection of the events is that:
15.1 White J asked me where the Applicant was at that time. I said words to the effect that the information available to the ACIC was that the Applicant was airside at the departure gate at Melbourne International Airport.
15.2 Mr Perkins stated words to the effect that the Applicant had progressed through the Migration Point.
15.3 I observed Mr Perkins use his work mobile phone to retrieve a document from the ACIC's email system. I observed Mr Perkins show his phone with that document displayed on the screen to White J. I also observed the document on the screen. Mr Perkins explained in my presence that the document was a copy of the Applicant's passport and boarding pass presented at the Migration Point, which only became available to the ACIC after the Examiner made his affidavit. Prior to that point, I had not viewed the document. I know from my inspection of ACIC records that the document presented to White J by Mr Perkins was received by ACIC at 9:23pm.
15.4 Also included in the document shown to White J was an itinerary in the name of the Applicant, which was not accessible to the ACIC at the time of preparing the application. White J commented that the itinerary showed that the Applicant had a return flight booked, but that did not mean that it would be used. I indicated to White J that at the time of the making of the application and the Examiner making his affidavit, that the Examiner did not know that the Applicant had a return flight booked.
15.5 A copy of the documents that I saw Mr Perkins show to White J, containing the images of the Applicant's passport, boarding pass, and itinerary is annexed hereto and marked "JSJ-3".
15.6 Making reference to the content of the Examiner's affidavit, White J asked me if there was a copy of the transcript from the Federal Circuit Court matter in which the Applicant had given an undertaking not to leave the country until the disposal of those proceedings. I confirmed that transcript was not with us at Court that evening. I stated that I was present in the Courtroom on Friday 6 July 2018 and was present with Senior Counsel for the Applicant, Mr Michael Abbott QC, confirmed to Judge Brown that, on the instructions he had, that the Applicant's undertaking given to the Court, through counsel, on Monday 2 July 2018 was still to continue.
15.7 I stated words to the effect that to the best of my knowledge the ACIC had received no contact from the Applicant or his lawyers advising that he was intending to travel overseas. I confirmed that I had acted in the role of Counsel Assisting at a mention of the examination on Monday 6 August 2018 and that on that occasion the Examiner had adjourned the Applicant's examination until 21 August 2018.
15.8 I also stated words to the effect that as the Legal Officer with carriage of the related Federal Circuit Court proceedings, I had not received any correspondence either with the Court or the lawyers acting for the ACIC suggesting that the Applicant had sought release or had been released from his undertaking to the Federal Circuit Court.
16. While I do not now recall the exact words used, White J indicated to Mr Perkins and I that, in light of the undertaking given the Federal Circuit Court that the Applicant would not leave Australia and giving significant weigh to the apparent breach of the undertaking to a Court in attempting to travel overseas, taking into account that the purchase of a return flight did not mean that a person would necessarily use the return portion to come back to Australia and having regard to the Applicant's long standing plans to want to leave Australia, he was satisfied that there was sufficient information before him to conclude that it was likely that the Applicant would commit an offence by failing to attend before the Examiner, if allowed to travel overseas in breach of the undertaking.
17. At approximately 10.20pm, White J issued the s 31(1) ACC Act warrant.
21 Mr Ross Daniel Perkins, referred to in the above extract, is the third respondent in these proceedings.
22 The summons remains extant.
Grounds
23 It is timely to recall at the outset that it is the applicant who challenges the issue of the warrant and therefore bears the onus to make good that challenge: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 (Williams v Keelty) at [235]-[236], including any challenge alleging that the information before the issuing officer was not capable of establishing the relevant statutory preconditions to issue a warrant: Williams v Keelty at [236]; Caratti v Commissioner of the Australian Federal Police (No 2) [2016] FCA 1132 (Caratti No 2) at [166].
24 It is appropriate to first address the three grounds which challenge the basis on which the warrant was issued.
Ground (a): no reasonable grounds to believe the applicant was likely to commit an offence contrary to s 30(1)(b) of the Act
25 The applicant submitted that the first respondent's decision to issue the warrant on the basis that the applicant was likely to commit an offence against s 30(1)(b) was not a reasonable decision in all the circumstances, given the limited information before him.
26 As will be recalled, s 30 creates an offence of failing to attend where a person has been served with a summons to appear as a witness before an examiner, and addresses the scenarios which might arise: first, if the witness fails to attend as required by the summons: s 30(1)(a), and second, if the witness fails to attend thereafter (that is, from day to day unless excused or released from further attendance): s 30(1)(b).
27 In essence this ground is based on three propositions the applicant contended arise from s 30(1)(b): first, that a person cannot commit the offence contrary to s 30(1)(b) if the person has been excused by an Examiner from attending on the next date or dates appointed for the mention of the examination; second, the first respondent could not be satisfied that there were reasonable grounds to believe that a person is "likely" to commit such an offence if the only occasion on which an examination could be held is one which the applicant had been excused from attending; and third, that the first respondent could not be satisfied that the applicant was under an obligation to attend "from day to day" unless and until the Examiner notified the applicant of a resumed hearing date on which he was required to attend.
28 Underlying those propositions is the contention that unless a date has been specified on which the applicant is required to attend, the applicant is under no obligation to do so and therefore could not commit an offence against s 30(1)(b) or be likely to do so. This submission presupposes that the source of the obligation for a person to attend an examination comes from s 30.
29 That submission directs attention to the construction of s 30 and s 31 of the Act.
30 Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ. More recently it has been emphasised that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71], and [35]-[39] per Gageler J; cited by BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45; (2019) 94 ALJR 51 at [48].
31 The Full Court in Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177; (2017) 257 FCR 166 (Caratti) at [22] in relation to the construction of statutes authorising the issue of search warrants, observed:
…in construing the statutory requirements for the issue of a search warrant, the Court should be careful to give effect to the legislation by its terms, and not approach its task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers: Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at [68].
32 Those comments are equally apt to the issue of a warrant for arrest under the Act (that is, where a summons to give evidence has been issued).
33 The applicant called in aid of his submission the principle of legality, contending that s 30(1) and s 31(1) should be construed strictly. That principle must be considered in a context where, as here, the legislature has authorised a warrant be issued for the arrest of a person provided that statutory preconditions are satisfied. The legislature in doing so has struck the balance between the competing interests of individual rights and the public interest in enforcing compliance with provisions relating to the investigation of crime: see for example: State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [96] per Callinan and Crennan JJ; Hart v Commissioner of Australian Federal Police [2002] FCAFC 392; (2002) 124 FCR 384 at [68].
34 In Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [313]-[314], Gageler and Keane JJ said (citations omitted):
Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that "[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve".
See also, Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [19] per Gleeson CJ.
35 As is apparent from the summary of the Act referred to above, the arrest power in s 31 sits within the broader scheme established by the Act. As part of that scheme the legislature has provided that a judge of the Federal Court or of the Supreme Court of a State or Territory sitting in chambers may issue a warrant if satisfied by evidence on oath that there are reasonable grounds to believe one or more of a number of things specified in the provision has occurred or is likely to occur. Relevantly for this case that includes where a person who has been summonsed has absconded, is likely to abscond, is otherwise attempting to evade service of the summons or has committed an offence or is likely to commit an offence against s 30. The scheme provides for the consequence of the execution of such a warrant, with strictures being imposed. Where a person is apprehended he or she is to be brought as soon as practicable before a judge of the Federal Court or of the Supreme Court of a State or Territory at which time the judge may do one of three things: admit the person to bail, with such security as the judge thinks fit, on such conditions as the judge thinks necessary to ensure the appearance of the person as a witness before the examiner; or order the continued detention of the person for the purposes of ensuring his or her appearance as such a witness; or order the release of the person: s 31(3). That hearing is an inter partes hearing at which evidence can be adduced and submissions made. If the person is detained, within 14 days (or such period as the judge at the hearing had fixed) that person must be brought before a judge of the Federal Court or of the Supreme Court of a State or Territory, and that judge may exercise any of the powers in s 31(3): s 31(4).
36 The purpose of the arrest warrant in s 31 is to get that person before a judge who can make one of three decisions, designed to ensure the person's appearance before the examiner.
37 Against that background the applicant's submission was that s 31(1)(b) (which relates to absconding) and 31(1)(c) (which relates to the offence in s 30(1) of failing to attend) have different purposes and are aimed at different conduct. It was said to follow that, given that both sections must be given work to do, this supported its construction that s 31(1)(c) cannot apply unless there was an obligation on a person to appear before the examiner on an identified occasion. It was submitted if it were otherwise, that would tend to render otiose the separate basis for the issue of a warrant under s 31(1)(b)(i) (likely to abscond).
38 The applicant's submission must be rejected.
39 First, the submission is erroneously premised on the basis that unless there is a date for the examination specified, there is no obligation to attend. The summons in this case was extant; the applicant had not been released from attending the examination under the summons. There was therefore a present obligation on the applicant to appear at a future date, as required by the Examiner. While the precise date on which the applicant would be required to appear for the examination was not yet clear, the affidavit material before the first respondent made it abundantly clear that the applicant would be required to attend if the Federal Circuit Court proceeding was resolved against him and the summons was upheld. It follows that the source of the obligation to attend does not arise from s 30. Rather, it arises from the summons remaining extant, which the evidence before the first respondent established was the case.
40 Second, in that context, while it may be accepted that to issue an arrest warrant on the basis of an offence having been committed contrary to s 30(1)(b), it would have been necessary for a date to have been set requiring the applicant's attendance, the warrant in this case was not applied for or issued on that basis. Significantly, s 31(1)(c) encompasses both where a person has committed an offence under s 30(1) and where the person "is likely to do so". In this instance, the warrant was issued on the basis that the applicant was likely to fail to attend an examination. That is, as the applicant had an extant obligation to attend, the first respondent was satisfied that it was likely he would fail to attend when required to do so.
41 Third, contrary to the applicant's contention, that interpretation does not render the separate basis on which a warrant can be issued under s 31(1)(b), namely being likely to abscond, otiose. Rather, failing to attend and absconding are two different concepts. Absconding has a particular meaning; it generally implies fleeing the jurisdiction in order to avoid a legal process, in this case, attending the examination for which the applicant had been summonsed: cf: Mensink v Parbery [2018] FCAFC 101; (2018) 264 FCR 265 at [93] per Wigney J; [185] per Bromwich J; Schnabel v Lui [2002] NSWSC 1184; (2002) 56 NSWLR 119 at [10], [17]; Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 at 644. While those authorities are addressing the word in a different context, the description is none the less apposite.
42 It follows that if a person absconds, they will or will be likely to fail to attend, but the reverse is not true. If a person fails to attend it does not necessarily follow that the person has absconded. The reasoning equally applies to "likely to do so". It is not uncommon for there to be overlap between provisions. Both provisions have work to do.
43 Finally, there is no basis in the text of ss 30 or 31 or the context in which they appear, to construe the legislation in the manner contended for by the applicant. Rather, the applicant's interpretation would result in a lacuna in the legislation. For example, if an examination is adjourned to a date to be fixed, on the applicant's case, a person would not be under an obligation to attend until that date is fixed, such that if they leave the jurisdiction or there is evidence they intend to do so an arrest warrant cannot be issued unless the person absconds or is likely to abscond, with all that entails (as explained at [41] above). The same would apply, on the applicant's construction, to an examination adjourned to a specified date at which the person is excused. Consequently it follows that if a person leaves the jurisdiction, or there is otherwise evidence that they intend to do so, without the evidence to establish that the motive in doing so is to avoid attendance at the examination, the examiner would have no recourse to a warrant to ensure attendance. It also follows that the examiner has no remedy in circumstances where, while there is no suggestion of the person leaving the jurisdiction, there is evidence to enable a judge to be satisfied that there are reasonable ground to believe the person is likely to fail to attend when required. The purpose of s 31, which is directed to ensuring that where a summons has been issued to a person to appear as a witness in an examination, that summons will be complied with, would be frustrated by the applicant's construction.
44 Against that construction, it is plain that the decision of the first respondent was not an unreasonable decision on the evidence before him. The evidence before the first respondent was, inter alia, that the summons was extant, the applicant had an ongoing obligation to attend when required, the applicant had given an undertaking to the Federal Circuit Court not to leave the jurisdiction until the proceedings were resolved, the applicant was already at an interstate airport about to board a flight overseas and, in those circumstances, that the applicant intended to leave the jurisdiction in apparent breach of that undertaking.
45 While the applicant submitted that there was limited material on which the first respondent could have made the decision, apart from a submission that the first respondent could not be satisfied that the applicant was likely to fail to attend in the absence of a date being fixed to attend, the applicant did not articulate why the first respondent could not be so satisfied as to issue the warrant. Indeed, it is difficult to understand how a ground alleging that there was insufficient material before the first respondent to enable him to be satisfied of the relevant state of mind could be established, when this Court only has a redacted version of the material provided to him. The redactions are made on the basis of public interest immunity, and are not challenged by the applicant.
Ground (b): failure to comply with the requirements of full disclosure on an ex parte application, and the misleading effect of the incomplete information
46 The applicant's contention that there was no reasonable basis for the first respondent to be satisfied under s 31(1)(c) is also based on the submission that the second respondent failed to provide full disclosure to the first respondent, that this resulted in the first respondent being misled and that the warrant was accordingly issued on an erroneous basis.
47 The submission alleged the first respondent was misled primarily by not being informed of three matters: first, that the applicant had been excused from attending both on 6 August 2018 and 21 August 2018; second, the listing of the matter on 21 August 2018 was for mention only; and third, the applicant had not been told of the 21 August 2018 listing. The applicant submitted that this occurred in a context where the information given to the first respondent was that the applicant had been summonsed to attend at an examination before the Examiner on 3 July 2018, that his attendance on that date had been excused and that the summons had then been adjourned to 9 July 2018 "for mention only, pending the outcome of" the Federal Circuit Court proceedings. The first respondent, however, had not been told the applicant had been excused from attending on 9 July 2018.
48 It was contended that this constituted a failure to inform the first respondent of the true position being "that there was no extant obligation requiring the attendance of the applicant before the Examiner, but instead conveyed the impression that there was such extant obligation".
49 It was submitted that the consequence of those omissions was that the first respondent made his decision based on erroneous information; that is, on the assumption that the applicant was required to appear on 21 August 2018 for an examination, that he knew that he was required to attend and that he was not going to attend. The submission proceeds on the assumption that the first respondent was satisfied of the preconditions in s 31 on the basis of information (that the examination was adjourned until 21 August 2018) not on oath. For the reasons given below in relation to ground (e) there is no proper basis for that proposition.
50 As a preliminary observation, the applicant's submission is based on the contention that the principles in respect to disclosure when making an ex parte application apply to these circumstances, which is inconsistent with a submission made as part of his challenge to the validity of s 31. As explained below, that challenge includes a submission that the process of obtaining a warrant is incompatible with the exercise of judicial power because the principles of full disclosure do not apply.
51 In Caratti the difference between the disclosure requirements for obtaining a search warrant and those for obtaining an ex parte curial order were explained by the Full Court as follows at [32]-[33]:
For a relatively short time, a Full Court decision in Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 481; 96 ALR 629 at 637; 21 ALD 699 at 700-1 equated, by obiter dicta, a search warrant application with an ex parte curial application, giving rise to a duty of utmost good faith (uberrima fides) to disclose all material facts to the decision-maker, being a duty of the kind stated in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682. That heresy by way of false equivalence between executive and judicial processes was firmly displaced by a subsequent Full Court decision in Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 555-6, 566D-E; 124 ALR 225 (Lego). The only judge who sat on both appeals, Hill J, observed that the existence of an obligation to make full disclosure was not the subject of any argument in the appeal in Karina Fisheries, nor was it essential for the decision: see Lego at FCR 564F.
As decided in Lego, where there has been an omission of relevant material by a person seeking the issue of a search warrant, the test is whether the material that was before the decision-maker was sufficient to meet the statutory conditions for the grant of the search warrant. George v Rockett involved such a finding as to the insufficiency of material before the issuing officer, turning on the particular and unusual circumstances in that case. As with other administrative decisions, however, the issue of a search warrant may also be rendered invalid where fraud or misrepresentation has induced the grant of the warrant, such that the warrant would not have issued but for the misstatement: Lego at FCR 555-6, 569A. It was considered by Hill J, in a separate judgment, that an actionable deficiency may also be established by want of good faith, but inadvertent omission will not suffice unless sufficiently material: Lego at FCR 570F…
52 The reasoning in the decision of Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542 (Lego) underlying the discussion in Caratti, has been applied to an application for an arrest warrant: Attorney-General for the State of Queensland v Francis [2008] QCA 243; (2008) 250 ALR 555 (Attorney-General for the State of Queensland v Francis) at [56]-[58], [106]-[107].
53 However, as explained above, the evidence before the first respondent was, inter alia, that the summons was extant, and the applicant had an ongoing obligation to attend when required. The evidence established that in effect the examination had been deferred until after the resolution of the Federal Circuit Court proceedings. In that context the applicant was leaving Australia in breach of an undertaking he had given the Federal Circuit Court. The flaw with the applicant's submission is that it proceeds on the erroneous proposition that absent an identified date requiring the applicant to attend there is no extant obligation to attend. For the reasons given above that is incorrect.
54 For those reasons, the applicant's submission that had the first respondent been informed that the applicant was excused from attending on future occasions when the examination was to be called on the first respondent would not have been satisfied there were reasonable grounds to believe the applicant was likely to commit an offence against s 30(1)(b); or there is a realistic prospect that the first respondent would not have been so satisfied as to issue the warrant, cannot be accepted.
55 This ground is not established.
Ground (e): the first respondent took into account evidence that was not given on oath and was not "satisfied by evidence on oath"
56 Simply put, the applicant submitted that the first respondent did not act only on the evidence on oath in the affidavits before him, but took into account the information which was provided to him in response to questions asked by him which was not on oath. That information is outlined above at [20]. It follows, so the applicant contended, that the state of satisfaction reached by the first respondent was not the state of satisfaction required by s 31(1) of the Act; it was a state of satisfaction reached on a combination of evidence given on oath and evidence given to him otherwise than on oath. It also followed that in considering evidence given otherwise than on oath, the first respondent had regard to a legally irrelevant consideration in the exercise of the s 31(1) power. It was submitted that as the lawful issue of a warrant under s 31(1) was conditional on the first respondent forming the particular state of mind referred to in that section, and as he did not do so, the power in s 31(1) was not validly exercised and the warrant is invalid.
57 There are several flaws with the applicant's submission.
58 First, the submission proceeds on the assumption that the issuing judge cannot have information before him or her, or take into account information which is not on oath. That is to misunderstand the concept of being satisfied by evidence on oath. It does not prohibit the decision maker from having before them evidence otherwise than on oath. However, while it is permissible, in certain circumstances, for the issuing judge to have other such information, that does not relieve the judge of the necessity to be satisfied of the statutory precondition only by evidence on oath.
59 In George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (George v Rockett) at 113-114 the High Court said in relation to satisfaction by evidence on oath:
The requirement that a sworn complaint must ground the issue of a search warrant carries the implication that the grounds for the issue of the warrant cannot be made to appear to the issuing justice from statements made by an applicant otherwise than by complaint on oath. In Feather v. Rogers [(1909) 9 SR (NSW) at 196], Simpson A.C.J. said in reference to a requirement that the facts be shown "on oath before a Justice": "The statements made before the information was sworn were apparently not made on oath. They were therefore immaterial." That is not to say that a justice before whom a complaint is sworn should abstain from questioning the complainant if the justice wishes to obtain some confirmation of what appears in the complaint. The requirement is that the sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in s. 679. If that requirement is not satisfied, the information otherwise conveyed to the issuing justice is immaterial but, if that requirement is satisfied, the justice may seek confirmation by inquiry of the complainant.
60 The terms of s 31 in relation to the state of satisfaction required are relevantly the same as the statutory provision considered in George v Rockett. It follows that it is not impermissible for the first respondent to have regard to information that is not on oath provided that the decision is based on the information on oath. It is not to the point to contend, as the applicant did, that the first respondent was clearly seeking further information, for the obvious, and only, reason to take it into account in deciding whether to issue the warrant. Nor does it assist the applicant to simply contend that the first respondent formed the state of satisfaction based partly on material that was not on oath, and that was not capable of enlivening the power to issue a warrant under s 31 of the Act. Significantly, the applicant did not address George v Rockett, or the relevant aspect of the respondents' submission in relation thereto. There was no submission that the observations recited at [59] above did not apply to s 31 of the Act. Rather, the applicant's submission simply proceeded on a basis inconsistent with the observations in George v Rockett.
61 Second, a consideration of the questions asked by the first respondent in this case reflects that, with one exception, they were simply directed at confirming the information before him on oath.
62 The information in answer to questions confirmed matters deposed to in the affidavit: that the applicant was airside at Melbourne International Airport and was booked on an international flight; that the undertaking given by the applicant to the Federal Circuit Court on 2 July 2018 and 6 July 2018 was still in effect; that the ACIC had not received any notification that the applicant was intending to travel overseas; that the applicant had a booking on a Cathay Pacific flight; and that the summons was still extant.
63 The one exception was the information that the applicant had a return ticket booked. However, contrary to the applicant's contention, that information was favourable to the applicant. The applicant's submission that the return ticket was somehow viewed by the first respondent as a cunning ruse by the applicant to conceal that he was not going to return, and was therefore being used against him, is not borne out by any of the material before this Court. Rather, at its highest, the relevant aspect of the affidavit of Ms Jefferson extracted above at [20], deposes to the first respondent making the observation that having a return ticket does not necessarily mean that the person will use it. It could not have been information used by the first respondent to be satisfied of the statutory precondition.
64 Third, the applicant's submission also proceeds on the assumption that the first respondent took into account the information in an impermissible way in reaching his conclusion as to the state of satisfaction required under s 31.
65 As a starting point, the face of the warrant records that the first respondent issued the warrant on the basis of his "satisfaction by evidence on oath that there are reasonable grounds to believe that [the applicant] in relation to whom a summons has been issued…is likely to commit an offence against section 30(1)(b) of the Act".
66 The applicant's submission that little weight should be given to the recital in the warrant itself because it was not prepared by the first respondent and "was 'pre-fabricated' by those applying for the warrant, in terms that simply reflected the language of the statute" has no foundation. That is to suggest that the first respondent, despite the seriousness of the task he was undertaking, and the fact he issued the warrant, somehow paid little heed to its contents, or the requirement as to his satisfaction of the statutory precondition in s 31 of the Act.
67 The applicant has not established that there is any basis to go behind that statement. That is particularly so given the nature of the information which was not on oath, as described above. It is also clear, even on the limited information on oath before the Court, that there was ample basis to be satisfied of the statutory precondition in s 31.
68 The applicant has not established this ground.
Grounds (c) and (d): section 31 of the Act is invalid
69 The applicant contended that s 31 of the Act is constitutionally invalid (notices having been duly issued under s 78B of the Judiciary Act 1903 (Cth)) or, in the alternative, that s 55C(2)(b) cannot save s 31 from invalidity if it impermissibly confers a non-judicial function on federal judges (grounds (c) and (d) respectively). None of the Attorneys-General intervened.
70 In summary, the applicant accepted that the established persona designata doctrine recognises that there are some non-judicial functions that may be conferred on members of the judiciary, acting in their personal capacities, without offending the separation of judicial power. However, the applicant contended that the two conditions identified by the High Court in Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 (Grollo v Palmer) at 364-365 which must be satisfied before a power is validly conferred on a judge as persona designata, are not satisfied in the case of s 31 of the Act.
71 The Constitution embodies a strict separation of the judicial power from the legislative and executive powers, such that no non-judicial function, power or duty may be conferred on a federal court: R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254.
72 In Grollo v Palmer, Brennan CJ, Deane, Dawson and Toohey JJ stated at 364-365:
The conditions thus expressed on the power to confer non-judicial functions on judges as designated persons are twofold: first, no non-judicial function that is not incidental to a judicial function can be conferred without the judge's consent; and, second, no function can be conferred that is incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power ("the incompatibility condition").
73 There was no issue between the parties that the conferral of the function in s 31 on a judge of the Federal Court is a persona designata conferral, and that the function conferred is an administrative one. The issue therefore is focussed on whether s 31 satisfies the two conditions identified in Grollo v Palmer.
74 In that context, before addressing the two conditions it is helpful to consider the development of the law leading to the identification of those conditions and their application thereafter, as this informs the content of the conditions.
75 The history of the conferral of non-judicial power on a judge as persona designata is summarised in the judgment of French CJ and Kiefel J in Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 (Wainohu) at [32]-[43]. As described "[t]he term 'persona designata' means '[a] person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character": Wainohu at [34].
76 For present purposes it is appropriate to commence with a consideration of Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 (Hilton v Wells) where the High Court considered warrants issued under the Telecommunications (Interception) Act 1979 (Cth) (Interception Act), in particular s 20 which empowered, inter alia, a judge of the Federal Court, to issue a warrant if satisfied of certain preconditions. The question before the Court was whether that Act purported to confer non-judicial power on the Federal Court. The Court, by majority (Gibbs CJ, Wilson and Dawson JJ, contra Mason and Deane JJ) held that s 20 conferred a non-judicial power on judges individually as designated persons, and not on the Federal Court. Thus the Court concluded that s 20 was valid.
77 The majority in Hilton v Wells concluded at 72-73:
It clearly appears from these authorities that where a power, judicial or non-judicial, is conferred by statute upon a court or a judge, it is not necessarily conferred on the court or the judge as such - the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it. Even if it were to be assumed that the fact that the power conferred by s.20 is conferred on "a Judge" gives rise to a prima facie presumption that it is conferred on the judge as such, and that he will determine it as a member of the court to which he belongs, we consider that there are sufficient indications in the statute to rebut that presumption. In the first place it is clear that if the judge is a member of the Supreme Court of a State, or of the Supreme Court of the Northern Territory, the power is not conferred on the Supreme Court of the State or Territory, but upon the judge as a designated person. Unless the Governor-General has made arrangements with the Governor of the State or the Administrator of the Northern Territory, no judge of the Supreme Court of the State or Territory will be invested with power by s.20, and if those arrangements are made they will not necessarily be applicable to all of the judges of the Supreme Court of the State, and cannot be applicable to all the judges of the Supreme Court of the Northern Territory. Since when s.20 refers to "a Judge" it in some cases refers to a judge as a designated person, it is unlikely that the Parliament intended in other cases to refer to the judge as such and to confer power on the court. Secondly, the nature of the power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in his capacity as a judge or as a designated person. If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person. Thirdly, none of the provisions of the Federal Court of Australia Act 1976 (Cth), as amended, or of the rules thereunder is rendered applicable to the exercise of power under s. 20. By s. 19(1) of that Act the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament and s. 20 of the Telecommunications (Interception) Act does not express an intention to invest the court with jurisdiction. Under s. 20 the judge makes no order and nothing that he does is enforced under the Federal Court of Australia Act. He grants a warrant, the effect of which depends entirely upon the Telecommunications (Interception) Act.
78 Mason and Deane JJ concluded that validly conferring non-judicial functions on a federal judge was confined to cases where there was a clear expression of legislative intention that the functions were to be exercised by a judge "in his personal capacity, detached from the court of which he is a member": at 82. In doing so, Mason and Deane JJ considered the features of the legislation which included that s 20 was not "expressed as to permit a judge to decline to deal with an application made to him" and that the function was "imposed upon a judge of the Federal Court as an unavoidable concomitant of his judicial office": at 85.
79 Shortly thereafter, in Jones v Commonwealth of Australia (1987) 71 ALR 497; (1987) 61 ALJR 348 the High Court was asked to, but refused leave to reconsider Hilton v Wells, with the Court (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ; contra Gaudron J in respect to the conclusion) summarising that decision as follows (71 ALR at 499; 61 ALJR at 349):
The minority considered that s 20 imposed an obligation on a judge to perform the function, that of dealing with an application for the issue of a warrant, thereby raising consequences having importance for the exercise of judicial power. On the other hand the majority proceeded on the view that s 20 did not impose an obligation on a judge to perform the function, whether he consented to do so or not. Accordingly, the decision on s 20, like the decision on s 7, was essentially a matter of statutory interpretation. And as s 20, like s 7, has been substantially amended, the authority of Hilton v Wells on s 20 in future litigation is necessarily confined.
For these reasons we have concluded that the court should not reconsider the correctness of the decision in Hilton v Wells in the present case.
80 It is clear from that passage that amendments had already been made to the Interception Act. No doubt conscious of those concerns expressed by Mason and Deane JJ the Interception Act was again amended, with that amended version then being the subject of challenge in Grollo v Palmer. The High Court, by majority (Brennan CJ, Deane, Dawson and Toohey JJ), concluded that the relevant provision was valid.
81 The plurality in Grollo v Palmer observed that the legislation had now made it abundantly clear that the power was being exercised persona designata, stating at 362:
As the Parliament in enacting the 1987 Amendment sought to overcome some of the objections raised by the minority to the interpretation of the Act expressed by the majority in Hilton v Wells, Parliament's intention is now too clear to mistake. The power is conferred on each eligible judge as a designated person, "detached from the court of which he (or she) is a member".
82 The plurality in Grollo v Palmer also referred, inter alia, to the reasoning of Mason and Deane JJ in Hilton v Wells as follows at 364:
Accepting this approach, Mason and Deane JJ imposed two qualifications on any exception to the principle that the judiciary should not be charged with the exercise of non-judicial power when the exercise of the power is not reasonably incidental to the fulfilment of judicial duties…:
"In the United States, as in Australia, it has been recognized that non-judicial functions may be entrusted to judges personally and not in their capacity as judicial officers, but, it seems, on the footing that a duty of acceptance cannot be imposed: [referring to In re Richardson (1928) 160 NE 655 at 659]. This recognition is no doubt subject to the general qualification that what is entrusted to a judge in his individual capacity is not inconsistent with the essence of the judicial function and the proper performance by the judiciary of its responsibilities for the exercise of judicial power."
83 As referred to above, the plurality in Grollo v Palmer identified two conditions which were derived from Hilton v Wells, to validly confer a non-judicial function on a Federal Court judge, being the consent and incompatibility conditions.
84 In discussing the consent condition, as is apparent from the passage cited above, the concern it addresses is that the acceptance of a non-judicial function cannot be imposed by the legislature on a judge. It is directed to the issue of a function being one that is persona designata, and not one imposed on the court. The reference to consent in the first condition identified in Grollo v Palmer must be understood in that context.
85 As to the incompatibility condition, the plurality in Grollo v Palmer observed at 365:
The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. So much is implied from the separation of powers mandated by Chs I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power.
86 Grollo v Palmer was applied in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 (Wilson) where the High Court considered whether an appointment of a judge of the Federal Court to make a report pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was constitutionally compatible with the holding of office as a judge appointed under Ch III of the Constitution. The Court concluded that s 10(1) did not authorise the nomination of judges appointed under Ch III of the Constitution because the function of reporting to the Minister was not compatible with the holding of the office as a judge. Much of the decision addressed the incompatibility condition referred to in Grollo v Palmer. The majority stated at 16-17:
Bearing in mind that public confidence in the independence of the judiciary is achieved by a separation of the judges from the persons exercising the political functions of government, no functions can be conferred on a Ch III judge that would breach that separation. The separation that is relevant here is separation in the performing of the particular non-judicial function; the principle does not touch personal relationships or relationships outside the area of governmental activity between judges and those who perform legislative or executive functions. Those relationships are matters for judicial sensitivity but not of constitutional significance. Constitutional incompatibility has the effect of limiting legislative and executive power. Where it has that effect, it is discovered on the face of the statute, or on the face of those measures taken pursuant to a statute, that purports or purport to confer a non-judicial function on a Ch III judge. That is not to say that constitutional incompatibility is a matter of mere form. The operation of the statute or of the measures taken pursuant to it is ascertained by looking to the circumstances in which the purported function might be performed. Where a non-judicial power is purportedly conferred, constitutional incompatibility is ascertained by reference to the function that has to be performed to exercise the power.
The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter "any non-judicial instruction, advice or wish"). If an affirmative answer does not appear, it is clear that the separation has been breached. The breach is not capable of repair by the Ch III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function. If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds - that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Ch III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.
87 The applicant placed significant reliance on Wainohu where the High Court considered the validity of an eligible judge, acting persona designata, making declarations pursuant to the Crimes (Criminal Organisations Control) Act 2009 (NSW). The Court concluded that this Act was invalid because it exempted eligible judges from any duty to give reasons in relation to making or revoking a declaration, which rendered the Act incompatible with the Supreme Court's institutional capacity. We consider this decision in more detail below.
88 Since Grollo v Palmer, and relevant to this case, s 4AAA of the Crimes Act 1914 (Cth) (Crimes Act) was enacted in 2001, and amended in 2005 to include Federal Court judges. It is relevantly in the following terms:
4AAA Commonwealth laws conferring non-judicial functions and powers on officers
Application
(1) This section sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on one or more of the following persons:
(aa) a Judge of the Federal Court of Australia;
(ab) a Judge of the Federal Circuit Court of Australia;
(a) a State or Territory judge;
(b) a magistrate;
…
Functions and powers conferred personally
(2) The function or power is conferred on the person only in a personal capacity and not, in the case of a Judge of the Federal Court of Australia, Judge of the Federal Circuit Court of Australia, State or Territory judge or magistrate, as a court or a member of a court.
Function or power need not be accepted
(3) The person need not accept the function or power conferred.
89 This section makes clear that if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on a judge of the Federal Court, the function or power is conferred on the person only in a personal capacity: s 4AAA(2), and that the person need not accept the function or power conferred: s 4AAA(3).
90 Section 4AAA was considered by the High Court in O'Donoghue v Ireland [2008] HCA 14; (2008) 234 CLR 599 which addressed whether s 19 of the Extradition Act 1988 (Cth) validly conferred power on State magistrates to conduct administrative proceedings to determine eligibility for extradition. The Court (Gleeson CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ, contra Kirby J) concluded that s 19 validly conferred power on State magistrates, as under s 4AAA of the Crimes Act the magistrates were not obliged to accept the performance of the functions under the relevant Act. In relation to s 4AAA(3), which provides that the person need not accept the function or power conferred, the plurality said that "[i]t should be held that acceptance, rather than 'non-acceptance', may be inferred from a course of conduct, in particular by exercise of the power or function in question": at [65], which was what had occurred in that case. The Court observed that s 4AAA was enacted against a historical background that included the involvement of State magistrates in extradition proceedings: at [23] per Gleeson CJ; [71] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
91 In that context, we note that the ability of the ACIC to conduct examinations is longstanding, as they were conducted by the ACIC's predecessor body, the National Crime Authority, (although previously known as hearings rather than examinations), prior to the enactment of s 4AAA, as is the power in s 31 to issue an arrest warrant. We also note that s 19 of the Extradition Act does not refer to consent or acceptance by the magistrate, and nor does it provide any mechanism for such consent.
Consent
92 The applicant's submission is that the first condition in Grollo v Palmer is not met because the power in s 31 of the Act is conferred on every judge of the Federal Court irrespective of whether he or she has consented to such conferral. He submitted that the requirement of consent to the performance of non-judicial functions is not concerned with whether a judge is subjected to a legal duty to exercise the function or power conferred. Rather, it is a threshold requirement stemming from a recognition that the separation of judicial power precludes the conferral of non-judicial functions and powers upon a judge of a Ch III Court by reason of his or her holding that office. The applicant contended that it is not to the point that a particular judge might potentially decline to exercise those powers that have been conferred, and that nothing in the reasoning in Hilton v Wells, Grollo v Palmer, Wilson or Wainohu suggests that the consent condition is applicable only to duties, as opposed to functions or powers.
93 The applicant submitted that in any case, s 31 does impose duties on judges. Referring to the terms of s 31, the applicant contended that the conferral of power clearly implies a duty on the judge to consider and decide an application made by an examiner. The applicant submitted that s 4AAA of the Crimes Act does not satisfy the consent condition. While accepting that s 4AAA(3) was enacted with the intention that it should serve to satisfy the consent requirement identified in Grollo v Palmer, the difficulty, according to the applicant's submission, is that s 31(1) of the Act confers a function on a judge by force of legislation, and by reason of his or her being a judge of the Federal Court. The applicant further submitted that neither s 4AAA nor s 31 provides for any mechanism by which a judge may decline to accept a non-judicial function, and that there was no opportunity for the judge to decline to accept the function when it was conferred. The applicant sought to distinguish O'Donoghue v Ireland on the basis that the issue in that case was that the Commonwealth could not impose a duty on a State magistrate to perform a function under Commonwealth legislation, and it did not relate to the Grollo v Palmer consent requirement.
94 The respondents submitted that the consent condition is directed to guarding against conscription; a judge cannot be conscripted to perform a non-judicial function. The respondents relied on s 4AAA submitting that it applies to s 31, the result of which is that the judge must consent to the function being conferred.
95 The respondents' submission must be accepted.
96 A consideration of s 31, together with s 4AAA of the Crimes Act reflects that the s 31(1) power can only be exercised with the consent of the relevant judge.
97 The consent condition in Grollo v Palmer arose in the context of the High Court addressing the question of whether particular legislation imposed a function on the judge of a court acting persona designata or on the court itself. As is apparent from the authorities referred to above, the concern which it addressed was that if the legislation imposed an obligation to perform a function on the judge (where the legislation does not permit the judge to decline it), that supports the conclusion that the function is imposed on the court and not on the judge acting persona designata. A judge cannot be compelled to perform a non-judicial function.
98 When it is appreciated that the consent condition addresses the proposition that the legislation cannot impose an obligation on a judge to perform a non-judicial function (that is, they have no choice about accepting that function), it becomes clear that the relevant question is whether the effect of this legislation is to impose such an obligation. That is, the issue is whether the judge has a choice, such that the judge must agree or is obliged to exercise the non-judicial function in s 31 of the Act. If a judge is obliged or has a duty to perform the function because of their position as a judge, the function is one imposed on the Court.
99 It is uncontroversial that a non-judicial function can be vested in a judge in a personal capacity. In that context the applicant accepted that the function in s 31 is imposed on a judge acting persona designata, and not on the Court. That is a proper concession given that a consideration of s 31(1) in its context, which relevantly includes s 4AAA of the Crimes Act which makes that abundantly clear. Therefore, the applicant is not suggesting that s 31 is invalid because it imposes a function on the Court.
100 Given that, the applicant's submission proceeds on a basis which applies the description of the condition given in Grollo v Palmer, removed from the surrounding discussion of the condition and the context in which it arose.
101 It is accepted by the parties that s 31 confers the function, and from that the applicant contended it has been conferred by the legislation without a judge's consent. The applicant dismisses s 4AAA as being relevant and sufficient consent primarily based on the proposition that there must be some legislative mechanism by which the acceptance is made before the conferral, without which the provision will be invalid. The argument is a temporal one. That submission is incorrect. It is to alter the condition imposed in Grollo v Palmer, properly understood.
102 Contrary to the applicant's contention, while the function may be conferred in s 31, a judge does not assume the responsibility to perform the function on appointment as a judge: cf: Hilton v Wells at 85 per Mason and Deane JJ. A judge "need not accept the function or power conferred": s 4AAA(3) of the Crimes Act.
103 It may be accepted that the legislation considered in Grollo v Palmer was more specific in that the function was imposed on an "eligible judge". However, it does not follow that a similar legislative approach is necessary in order to satisfy the consent condition. Rather, as the High Court in Grollo v Palmer explained, the amendments to the provision there under consideration, enacted since Hilton v Wells, made it abundantly clear that the function was imposed persona designata. Neither Grollo v Palmer, nor any other authority, suggests that type of mechanism was necessary. Nor was any authority pointed to which suggested that the particular provision must necessarily contain a mechanism by which the judge accepts or consents to the function.
104 As noted above, in O'Donoghue v Ireland the High Court observed in respect to s 4AAA(3) that acceptance may be inferred from a course of conduct, in particular by the exercise of the power or function in question. While the applicant's submission that O'Donoghue v Ireland involved a contention in relation to the Commonwealth imposing a duty on a State magistrate is correct, that is not a relevantly distinguishing feature. It does not affect the significance of the Court's interpretation of s 4AAA, nor render those conclusions any less applicable. Rather, the Court was required to determine whether a duty was imposed on a State magistrate by Commonwealth legislation, for if it did the conferral of the function was beyond power. For its conclusion it relied on s 4AAA of the Crimes Act (in the manner explained above), that magistrates were not obliged to accept the function or power conferred.
105 In any event, the terms of s 4AAA make it clear that it applies to s 31 of the Act as it is a law of the Commonwealth "relating to criminal matters", being a law in aid of an examination for the purposes of an ACC special operation/investigation which must concern "federally relevant criminal activity": s 24A(1), with s 7C(2) and (3) of the Act. That being so, a judge on whom a function is conferred in a personal capacity, in this instance s 31 of the Act "need not accept the function or power conferred": s 4AAA(3). It follows that a judge has a choice as to whether to accept the function; the s 31(1) power can only be exercised with the consent of the relevant judge.
106 The applicant's submission that it is necessary that there be a mechanism for acceptance is substantially based on the propositions that without such a mechanism the judge would not know how to decline the conferral of the power and that there was no way to determine whether the judge was aware of the ability to do so. In support of that submission the applicant posed a number of questions to illustrate the difficulties which he said arose as a consequence. It was further contended that, without such a mechanism, the judge may feel, at a practical level some pressure to accept the function or conferral in the circumstances in which s 31 applications are made. We note that the internal procedure described as implemented in Grollo v Palmer at 357 was not contained within the legislation. No information was placed before this Court regarding any internal procedure, nor was it necessary or appropriate to do so. Nonetheless there is no reason to suppose there is not some current procedure in place. Regardless, such considerations are irrelevant and tend to distract from the issue to be decided; whether s 31 is valid. It is valid if, as here, the function is imposed persona designata, and the incompatibility condition is satisfied. The applicant's submission that to be valid the legislative provision must contain a mechanism for acceptance of the function cannot be accepted.
Incompatibility
107 The applicant contended that the function of issuing arrest warrants in s 31 of the Act is incompatible with the exercise of the judicial power of the Commonwealth. He contended that the examination process conducted by an examiner under s 28 of the Act is a purely executive process and consequently warrants issued under s 31 are for the arrest and detention in custody of persons for purposes associated with purely executive functions. In addition the applicant pointed to a number of features of s 31 which he submitted closely linked the function with that of the role of a judge of the Court. In that respect the applicant relied on the requirement in s 31(1) that refers to the judge "sitting in chambers," to found a submission that "this is calculated to identify the exercise of power with the officer's status as a judge, and, importantly, closely to link the exercise of power with membership of the Court of which the judge is a member", relying on comments of Mason and Deane JJ, in dissent in Hilton v Wells at 83-84. The applicant also relied on the fact that the material presented to the first respondent (sitting in chambers) included material that is, by reason of public interest immunity, restricted to the executive only, and precluded from being produced in the present proceedings. Other features relied on in support of the conclusion of incompatibility included: that a hearing is held ex parte (inconsistent with open justice with the affected person unaware of it, and therefore not entitled to adduce evidence or challenge the issue of the warrant); that a judge receiving an application is under a duty to determine it (or in the alternative, at least under a practical compulsion to do so); the affected person is denied procedural fairness in circumstances where the judge will necessarily make adverse findings against the person; the issue of the warrant exposes the person to continuing detention and restraint of liberty; and there is no requirement to give reasons.
108 The applicant submitted that the function is different to that considered in Grollo v Palmer and Hilton v Wells which did not offend the incompatibility principle as they were closely analogous to the well-established function, historically exercised only by justices and judges, of issuing warrants to enter, search and seize in aid of investigations.
109 In making that latter submission, the applicant did not engage with the legislative provisions considered in Grollo v Palmer and more particularly, with the circumstances in which the function of issuing a warrant to intercept telecommunication services is to be exercised, which the High Court considered did not breach the incompatibility condition.
110 Accepting that each case turns on the legislation under consideration, instructively the features relied on in Grollo v Palmer were that the judge could not reveal the information provided on the application, the application was ex parte, the issue of the warrant and the identity of the judge is never disclosed, the existence of the warrant may go undetected (unlike, ordinarily, a search warrant), no records are kept which would prevent judicial review and no reasons are given. Despite the legislation provision having those features, the Court in Grollo v Palmer concluded that the provisions were valid.
111 The features relied upon by the applicant in relation to the conduct of the s 31 application to support the contention of incompatibility existed also in the conduct of an application under the provisions considered in Grollo v Palmer. For example, that an application for a s 31 arrest warrant is held ex parte (with all that entails) is reflective of an inherent feature of the issue of such a warrant. It comes with the very nature of the power to arrest a person: Grech v Featherstone (1991) 33 FCR 63 at 67; Attorney-General for the State of Queensland v Francis at [61], [99]. It is also a necessarily inherent feature in the issue of a search warrant and a telephone interception warrant. However, the issue of an interception warrant is, because of the nature of the warrant, more clandestine than the issue of a search warrant and, more significantly, a warrant for arrest under s 31. The existence of the arrest warrant is known, at least on execution, as is the identity of the judge who issued it. The arrested person is brought before a judge of the Federal Court or of the Supreme Court of a State or Territory as soon as practicable and can make an application to be released, including giving evidence which refutes the factual basis on which the warrant was issued. This is to be contrasted to an interception warrant where its existence will remain unknown to the affected person unless evidence obtained as a result of the warrant is relied on in a criminal trial, at which stage the only likely recourse is to challenge the admissibility of the evidence.
112 While the reference to "sitting in chambers" in s 31, which is relied on by the applicant, is not in the provision considered in Grollo v Palmer, as the majority observed, a common procedure for obtaining an interception warrant was that the application was made in chambers: Grollo v Palmer at 357. If anything, the reference to sitting in chambers reinforces that the judge is acting persona designata, rather than as a member of the court exercising judicial power, as well as requiring that the power be exercised in a place free of executive interference.
113 As noted above, in Wilson the majority posed a number of questions to be considered when assessing constitutional incompatibility. If those questions are addressed to s 31 of the Act, the answer to the first question, whether the function is an integral part of or closely connected with the executive, is "yes". This was accepted by the respondents. In respect to the second question, whether the function is required to be performed independently of any instruction, advice or wish of the legislature or executive, a judge exercising the function in s 31 is independent in the relevant sense. The judge acts independently of any advice, instruction or wish from the executive. An application for a warrant is made and the judge acts independently in determining whether the conditions are satisfied such as to grant the application. In respect to the third question, whether the function in s 31 is exercised on political grounds, the answer is that it is a function which must be performed judicially. A judge exercising the power under s 31 acts in an impartial and independent manner. We appreciate that acting judicially ordinarily involves a procedure that gives the interested party a chance to be heard. However, as recognised by the majority, an obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office: Wilson at 17. In relation to s 31, while the application is ex parte, as described above, the Act provides a procedure for the person to be brought before a judge of the Federal Court or of the Supreme Court of a State or Territory as soon as practicable, at which time the person has an opportunity to be heard, and could, inter alia, be released or the issue of the warrant could be challenged.
114 The applicant's dismissal of the respondents' submission addressing the questions posed in Wilson on the basis that it had not suggested that s 31 bore the features of the legislation in that case, is misplaced. Those questions posed by the majority were plainly not confined to the legislation there under consideration. Nor, contrary to the applicant's contention, is addressing those questions determining the validity of legislation by comparing it with features of legislation in other cases. Rather, the questions focus attention on examining the statutory provision in question and any measures that flow therefrom for the purpose of determining the issue of incompatibility.
115 Much then of the applicant's submission rests on the historical role of judges in issuing search warrants, as a point of distinction with a s 31 warrant. To that end, particular reliance was placed on the observations of Gaudron J in Wilson at 26 (citations omitted):
…there may be functions (for example, the issuing of warrants such as those considered in Hilton v Wells and in Grollo) which do not satisfy these criteria but which, historically, have been vested in judges in their capacity as individuals and which, on that account, can be performed without risk to public confidence. However, history cannot justify the conferral of new functions on judges in their capacity as individuals if their performance would diminish public confidence in the particular judges concerned or in the judiciary generally.
116 The plurality in Wainohu agreed with that statement: Wainohu at [94]. It focusses appropriate attention on the importance of the incompatibility condition.
117 However, the circumstances in Wainohu are readily distinguishable from the provisions in this case. As can be seen from the consideration of the case above, the reason that the absence of a requirement to give reasons in Wainohu resulted in the incompatibility condition being infringed was because the decision of the judge acting persona designata (which was a declaration that an organisation was a declared organisation) enlivened the jurisdiction of the Supreme Court to make a control order. That decision, which was a condition precedent to making the control order, was therefore considered to be closely linked to the exercise of jurisdiction by the Supreme Court. The Court considered that the application to a judge for a declaration in relation to an organisation "will ordinarily require that there be placed before [the judge acting persona designata] an extensive array of 'information' and 'submissions', none of which need be admissible in a court of law": Wainohu at [36]. None of those features exist with the provision here under consideration.
118 From an historical perspective, a telecommunications interception warrant considered in Grollo v Palmer carries with it features which are beyond those typically associated with traditional search warrants. While both types of warrant involve the obtaining of evidence, the ability to intercept telecommunications is a more recent means by which to do so. From a practical viewpoint, as referred to above, the existence of an interception warrant is unknown, which is in contrast to a search warrant for premises (with limited exceptions) and therefore unlike search warrants, judicial review proceedings challenging its issue cannot ordinarily, or at least practically, be instituted. Moreover, an interception warrant can be in force for some time and capture communications not related to the basis on which the warrant was obtained, and capture words spoken by all persons who use the telecommunications service, not simply the person targeted by the warrant.
119 When the plurality in Grollo v Palmer considered the features of the interception warrant argued by the applicant to be incompatible, they did so in the context of the nature of the warrant.
120 For example, it was because of the necessity of such warrants in combating serious crime and their intrusive and clandestine nature that called for a person independent of the relevant agency to authorise the warrant. The function required an impartial assessment by an authority accustomed to a dispassionate assessment of the evidence and sensitive to the issues which surround the protection of privacy. In that context the plurality in Grollo v Palmer concluded at 367:
…In other words, the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. It is an eligible judge's function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.
In other countries the same view has been taken of the desirability, if not the necessity, for judicial issuing of a warrant to authorise secret surveillance of suspects in criminal cases…
121 Accepting that the s 31 warrant is in the context of a person having been summonsed to give evidence to the ACIC, similar considerations apply.
122 It is appropriate to recall that the issue to be determined is not the desirability of a judge being involved in the issue of a s 31 warrant, but rather the validity of the legislation: Grollo v Palmer at 368; Wainohu at [21] per French CJ and Kiefel J.
123 The ACIC can conduct an examination of a person under s 24A provided certain preconditions, as described above, are met. The ACIC, and other like organisations, have been given by the legislature the power to perform such examinations to further particular serious criminal investigations. Such investigative methods exist, and have for some time (see for example: Law Enforcement Integrity Commissioner Act 2006 (Cth), s 99; Crime Commission Act 2012 (NSW), s 36; Law Enforcement Conduct Commission Act 2016 (NSW), s 71). There are secrecy provisions in the Act to ensure the fact and content of the examination in s 31 is unknown, to protect the person questioned and the investigation. In that context, the function of issuing a warrant for the arrest of a person is in the hands of a judge acting persona designata, to decide independently of the ACIC whether such a warrant should issue. The function, though an administrative one, is performed judicially. Given the professional experience of a judge, he or she is well qualified to do so.
124 That s 31 is an arrest warrant as opposed to a search warrant or interception warrant, does not, properly considered, render the reasoning in Grollo v Palmer inapplicable.
125 It is necessary to address two further submissions raised by the applicant, which are said to be features not present in Grollo v Palmer.
126 First, the applicant relied on International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 (International Finance) where the High Court by majority held that s 10 of the Criminal Assets Recovery Act 1990 (NSW) was invalid as it engaged the Supreme Court in activity which was repugnant in a fundamental degree to the judicial process as it is understood and conducted in Australia. The reasoning of the judges varied in reaching that conclusion, with the applicant placing particular reliance on the judgment of Gummow and Bell JJ. In particular, the importance of full disclosure in ex parte hearings as described in [97]:
The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity.
127 However, the legislation considered in International Finance is relevantly distinguishable from s 31. Most obviously, International Finance was not a case concerning a judge acting persona designata, but rather, involved legislation which permitted a law enforcement authority to seek from the Supreme Court, without notice to the affected person, an order preventing any dealing with specified interests in property of any person. The legislation provided that the Court must make the order if the precondition is satisfied. That order could only be overturned if the affected person made an application to the Court for an exclusion order. The Court was purportedly compelled to make the order specified by the executive. That is in stark contrast to s 31 which confers on a judge acting persona designata a discretionary power, which is exercised by the judge acting independently. On arrest the person is brought before a judge of the Federal Court or of the Supreme Court of a State or Territory and can apply, inter alia, to be released.
128 International Finance was relied on by the applicant to show the importance of full disclosure on an ex parte application to the judicial process, in the context that such does not occur in the s 31 setting. As a preliminary observation, as noted above, this submission is inconsistent with the applicant's submission in ground (b) that the second respondent failed to comply with the requirements of full disclosure in providing information to the first respondent, as it is premised on the proposition that such disclosure is required. However, the position in respect to disclosure in relation to s 31 is no different to that relating to search warrants, as explained above. If there had been an omission of relevant material by a person seeking the issue of a search warrant, the test is whether the material that was before the decision-maker was sufficient to meet the statutory conditions for the grant of the search warrant: Caratti at [32], [33]; Lego at 555-556.
129 Second, the applicant submitted that in performing the s 31 function a judge is "brought into the folds of the executive" because that judge may have material which is the subject of public interest immunity, which would not be disclosable. In making the submission the applicant accepts that it is true that an otherwise open inter partes curial process will not be incompatible merely because the court may in defined circumstances consider certain limited material that is not disclosed, citing Gypsy Jokers Motorcycle Club v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [36]. Indeed, applications for material not to be disclosed on the basis of public interest immunity are not uncommonly decided by a judge having been provided with affidavit material in support of the claim which itself is not disclosed to the affected party: Parkin v O'Sullivan [2009] FCA 1096; (2009) 260 ALR 503 at [24]; Meneses v Directed Electronic OE Pty Ltd [2019] FCAFC 190; (2019) 373 ALR 624 at [37]. That a judge has such material does not result in that judge being "brought into the fold of the executive". In any event, such material may form part of the basis of an application for a telephone interception warrant, or any other type of search warrant. Common to the issue of those warrants is that the affidavit material provided to the issuing officer in support of the relevant application is not, as a matter of course, disclosed to the affected person: see the discussion in SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609; Chen v Commissioner of the Australian Federal Police [2017] FCA 1558 at [3]-[8]. Challenges to those types of warrants are necessarily limited: Caratti at [31]-[34]; Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 at 130-131 per Gummow J.
130 That said, it is important to recall that the focus when determining the issue of incompatibility is examining the statute in question. Each case must turn on a consideration of the relevant legislation.
131 The function of issuing an arrest warrant under s 31 is not incompatible either with the first respondent's performance of his judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. While there is no bright line defining the limits on the appointments of judges to non-judicial functions, guidance as to the limits is provided by the decisions which address the imposition of such functions in respect to other provisions. For the reasons described above, properly considered, the considerations that arise in relation to the function of issuing a s 31 warrant are not dissimilar to those in relation to other warrants. Moreover, in circumstances where the issue of a summons to give evidence or produce documents under compulsion is valid, it is desirable that the issue of a warrant for arrest in the circumstances of s 31 (which generally relate to the failure or the potential to fail to comply with the summons), is undertaken by a person independent of the agency issuing the summons. A judge's experience ideally places him or her to make such decisions in the manner required.
132 Ground (c) is not established. The provision is valid.
133 Ground (d) which was said to be an alternative argument, while unclear from the review ground, appears to contend that if s 31 impermissibly confers a non-judicial function on federal judges, s 55C cannot save the provision from invalidity. There was no real development of the ground save to contend that s 55C does not overcome the issues in Grollo v Palmer. This ground is premised on the basis that but for s 55C(2)(b), s 31 would be invalid because it impermissibly confers a non-judicial function on federal judges. That is incorrect. As is apparent from the reasons above, s 31(1) is not incompatible with the issuing officer holding office as a Federal Court judge.
Conclusion
134 The applicant has failed to establish any of the grounds for review. Accordingly the amended originating application must be dismissed, with costs.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wigney, Bromwich and Abraham.