NOTE: For the purposes of the above table "CA" refers to the Customs Act and "TIA" refers to the TI Act.
As can be seen from the table, on 5 July 1994, Federal Agent MacKellar applied to Jenkinson J for, and obtained, the issue of the First Home TI warrant, Home LD warrant, Personal LD warrant, Mobile TI warrant, and the one and only Chambers LD warrant; on 30 September 1994, Federal Agent Sharp applied to Sweeney J for, and obtained, the issue of the Second Home TI warrant, Home LD warrant, Personal LD warrant and Mobile TI warrant; and on 24 November 1994, Federal Agent Phillips applied to Ryan J for, and obtained, the issue of the Third Home TI warrant, Home LD warrant, Personal LD warrant and Mobile TI warrant. The issue of each warrant involved two decisions: the decision of the Federal Agent to apply for it and the decision of the Issuer to issue it. Accordingly, the applicant seeks review of 26 decisions in respect of 13 warrants.
He seeks review of the decisions to apply for, and the decisions to issue, the LD warrants under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") and the accrued jurisdiction of this Court. However, by reason of the definition of the expression "decision to which this Act applies" in s 3 of the ADJR Act and par (d) in Schedule 1 to that Act, the ADJR Act does not apply to the decisions to apply for, and the decisions to issue, the TI warrants. Review of those decisions is sought under s 39B of the Judiciary Act and the accrued jurisdiction of the Court alone.
The three Issuers entered appearances but have not played any part in the proceeding.
BACKGROUND FACTS
The following is an agreed statement of facts which was before the Court:
"1. The Applicant is and was at all material times a Barrister in active practice, practising from rooms situated at Room 9, Level 3, Four Courts Building, 180 William Street, Melbourne.
2. The First, Second and Third Respondents are Federal Police Officers who made applications to the Fifth, Sixth, and Seventh Respondents respectively for listening device and telephone intercept warrants, for the purpose of investigating allegations into alleged heroin importation and/or trafficking by the Applicant. The Fourth Respondent is generally in charge of the activities of the Australian Federal Police and is responsible for the activities of the First, Second and Third Respondents.
3. On the 5th July, 1994 the First Respondent applied to the Fifth Respondent for several listening device warrants pursuant to the provisions of the Customs Act. The First Respondent applied for, and the Fifth Respondent issued, a warrant to install a listening device at room 9, level 3, 180 William Street, Melbourne ('the first chambers listening device warrant'), at the Applicant's home at unit 1, 8 Basil Street, East Malvern ('the first home listening device warrant') and to install a listening device anywhere in Australia that the Applicant was likely to be ('the first personal listening device warrant'). Simultaneously, the First Respondent applied to the Fifth Respondent for warrants pursuant to the Telecommunications Interception Act to intercept communications passing over the Applicant's mobile telephone 018 530 292 ('the first mobile intercept warrant'), and to intercept communications from the telephone at the Applicant's home, being 03 9571 3991 ('the first home intercept warrant').
4. On the 30th September, 1994 the Second Respondent applied for, and obtained from the Sixth Respondent, similar warrants, save that no specific warrant was applied for in respect of the Applicant's professional chambers. The Sixth Respondent issued the second home listening device warrant, the second personal listening device warrant, the second mobile intercept warrant, and the second home intercept warrant.
5. On the 24th November, 1994 the Third Respondent applied to the Seventh Respondent for warrants similar to those previously granted, save that no specific warrant was applied for in respect of the Applicant's professional chambers. The Seventh Respondent issued the third home listening device warrant, the third personal listening device warrant, the third mobile intercept warrant and the third home intercept warrant.
6. Under the (now disputed) authority of these warrants, the First, Second and Third Respondents and other officers of the Australian Federal Police monitored conversations conducted by the Applicant. Such monitoring consisted of listening to and recording all conversations detected by the various listening device and intercept mechanisms.
7. On the 11th January, 1995 the Applicant and others were arrested, the Applicant being charged with two charges of being knowingly concerned in the importation of a prohibited import, namely heroin, two charges of possession of a prohibited import, namely heroin, and trafficking a drug of dependence, namely heroin. Committal proceedings have been conducted and the Applicant has been committed for trial on these charges. The trial has not yet commenced.
8. A trial date of 3 March 1997 was fixed for the trial, but that date was vacated on account of these proceedings. A trial date of 1 September 1997 has now been fixed as the date of trial. The Applicant is to stand trial with his two co-accused, being his wife and a former client. A copy of the Indictment/Presentment is annexed hereto and marked 'A'. [the annexure is not included in these Reasons for Judgment.]
9. Each LD warrant issued under [Customs Act], s219B(5) referred to the Applicant as a 'barrister at law': [...] Each TI warrant also referred to the Applicant as a 'barrister at law': [...] The chambers LD warrant referred to premises known in the State's legal profession to be barristers' chambers [...]. Each other LD warrant named the Applicant as the person in respect of whom the application was made:[...].
10. When each of the first, second and third respondents made application for the TI and LD warrants on behalf of the Australian Federal Police, he put before the relevant Judge an affidavit which had been sworn by him. The affidavit of the first respondent included a paragraph which read:-
Enquires [sic] reveal that Christopher John Carmody is a barrister at law practising from Room 9, 3rd Floor, Four Courts Building, 180 William Street, Melbourne. Examination of the building directory has Christopher John Carmody as the sole occupant of Room 9.
The affidavits of the second and third respondents included a paragraph which read:-
Enquiries reveal that Christopher John Carmody is a barrister at law practising from Room 9, Level 3, Four Courts Building, 180 William Street, Melbourne.
No other material relevant to the matters set out in paragraphs 1 and 1A [the relevant parts of these paragraphs are set out below] of the Amended Statement of Claim was placed before the fifth, sixth or seventh respondents by any of the first, second and third respondents.
11. At the time of making application to the fifth respondent for the TI and LD warrants, the first respondent saw the fifth respondent take out a book or printed register and, in the course of so doing, the fifth respondent indicated that the book or printed register related to the professional practice of the applicant. The fifth respondent then requested the first respondent and the other AFP officer who accompanied him to mark on the relevant log sheets any conversations which were subsequently recorded by a listening device in the applicant's chambers and which might be the subject of legal professional privilege.
12. Neither the second nor third respondents recollect having any conversation with the sixth and seventh respondents regarding the matters referred to in paragraph 1 and 1A of the Amended Statement of Claim.
13. Each of the fifth, sixth and seventh respondents issued the warrants pursuant to the [Customs Act] and the [TI Act] in the knowledge that the applicant was at the time:-
(a) in practice as a barrister; and
(b) the occupant of professional chambers at Room 9, Level 3, Four Courts Building, 180 William Street, Melbourne.
14. Conversations overheard and recorded purportedly pursuant to (at least) the first chambers listening device warrant, the second personal listening device warrant, the third personal listening device warrant and each of the mobile and home intercept warrants included material which was or bore the semblance of communications which were the subject of legal professional privilege. The respondents contend that the communications do not attract the operation of the doctrine of legal professional privilege as they were communications made for the purpose and/or as part of the processes of the crimes in respect of which the applicant has been charged.
15. The prescribed form for LD and TI warrants, as well as s219B(5) and (7) of the [Customs Act] and s49(2) of the [TI Act] permit an issuing Judge to attach conditions upon the issue of a warrant. In the case of the warrants issued by the fifth respondent on 5 July 1994 and the sixth respondent on 30 September 1994, the provision for 'conditions and restrictions' was crossed out and initialled by the issuing Judge. In the case of the warrants issued on 24 November 1994, the seventh respondent wrote in the word 'nil' directly under the provisions for 'conditions or restrictions'."
On 5 September 1996, Merkel J gave decisions on two motions in the proceeding: a motion by the AFP respondents for an order that the proceeding be dismissed or temporarily stayed; and a motion by the applicant seeking discovery and leave to administer interrogatories. In his reasons for judgment, Merkel J summarised the nature of the applicant's case as it appeared from an amended application filed on 8 December 1995 and a further amended statement of claim. We gratefully adopt his Honour's account:
"The applicant's case may be divided into two parts. The first part is general and alleges that:
(a) the information provided to the eligible Judges in support of the applications for the issue of the warrants did not satisfy the requirements of s.219B of the [Customs Act] and s.45 of the [TI Act] ('the inadequacy claims');
(b) the applicants for the warrants breached their 'duty uberrimae fidei to make full and frank disclosure' to the eligible Judges ('the non-disclosure claims').
Having regard to the reasons for decision in [Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 (FCA/FC) ("Flanagan")] at 213-218, to succeed in the non-disclosure claim it is likely that the applicant will have to establish mala fides in the sense there discussed.
Counsel for the applicant has in effect conceded that the review sought on both of these grounds is foredoomed to failure in the absence of discovery in relation to the information provided to the eligible Judges. The concession arises from the fact that it appears that without discovery the applicant will not be able to put forward a factual basis for the allegations made.
The second part relates to the issue of legal professional privilege arising from the issue of warrants in relation to a barrister in active practice. The facts pleaded are:
1. The Applicant is and was at all material times -
(a) admitted to practice as a barrister and solicitor of the Supreme Court of Victoria;
(b) in active practice as a barrister;
(c) the occupant of professional chambers at Level 3, 180 William Street, Melbourne;
(d) the occupant of premises at Unit 1, 8 Basil Street, East Malvern;
(e) accustomed to and in the habit of conducting conferences with clients of his practice at his said professional chambers and elsewhere;
(f) accustomed to and in the habit of conducting telephone conferences with clients of his practice, including conferences on his mobile telephone and his home telephone.
1A. In the course of conducting the conferences referred to in paragraphs 1(e) and (f) the Applicant and his clients were likely to and frequently did discuss matters giving rise to legal professional privilege.
....
69A. (b) that if each or any of the warrants ... applied for was granted, it was likely that a member or members of the AFP would listen to and/or record communications which were subject to legal professional privilege.
The applicant also made non-disclosure claims in relation to these facts and alleged a failure by the eligible Judges to give any or any proper consideration to the issue of legal professional privilege. These claims ("the factual privilege claims") involve questions of mixed fact and law, as their determination will involve enquiring into the knowledge, belief and bona fides of AFP officers concerning the applicant as well as some enquiry into the decision making process.
The factual privilege claims also appeared to be doomed to failure in the absence of discovery, as the applicant would be unable to put forward a factual basis for them.
Further, the evidence before me does not support the existence of a factual basis for these claims. It is apparent that on each occasion the eligible Judge issued a LD warrant under s.219B(5) in relation to a particular person being a 'Barrister at Law'. Other warrants related to the residence and telephones used by that person. The evidence before me also discloses that the information provided to the eligible Judge on the first occasion led him to state that any material intercepted which may be privileged should be marked with an asterisk. Similar information was likely to have been provided to the other two eligible Judges when 'extending' or 'renewing' the warrants. Further, on the first occasion a LD warrant issued in relation to the applicant's chambers at 180 William Street. In these circumstances it is almost inevitable that, when they issued the warrants, the eligible Judges were informed of, considered and had regard to the occupation of the applicant. It is also probable that they gave some consideration to the issue of legal professional privilege.
At all events, the relevant matter on this aspect of the present applications is whether the applicant has established any basis for inferring that the eligible Judges may not have been informed of the applicant's occupation and of matters raising, at the least, the possibility of questions of legal professional privilege arising as a result of the issue of the warrants. For the reasons I have set out above and on the basis of the material before me that question must be resolved in the negative against the applicant.
The final issue is whether the decisions to apply for and issue the warrants, in failing to deal with or provide for the protection of legal professional privilege in the warrants, were in excess of the power conferred under the [Customs Act] and the TI Act ('the legal privilege claim').
Essentially, this claim involves a question of law arising on uncontroversial facts, being the information disclosed to the eligible Judges which gave rise to the possibility, likelihood or inevitability of privileged communications being recorded or intercepted pursuant to the warrants.
The applicant seeks -
. declaratory relief that the warrants were unlawful, void and of no effect with the consequence that the information obtained pursuant to the warrants was obtained unlawfully and is or ought to be prohibited from being given in evidence or otherwise used by the AFP respondents;
. orders quashing or setting aside each of the 26 decisions, including the decisions to issue the warrants;
. injunctions restraining the AFP respondents from giving in evidence or otherwise using information obtained pursuant to the warrants."
REASONS FOR DECISION AND ORDERS OF MERKEL J
His Honour noted that the object or principal purpose of the proceeding was to prevent the information obtained pursuant to the warrants from being given in evidence at the applicant's trial. Accordingly, his Honour addressed the substantive issue of whether it was appropriate for this Court, rather than the trial court, to entertain the applicant's challenge to the validity of the warrants for the purpose of controlling the admission of evidence proposed to be adduced at the trial. The AFP respondents submitted that the proceeding should be dismissed or stayed on the grounds that the proceeding was an impermissible fragmentation of the criminal process (see Flanagan at 187), and that it was entirely speculative and could "be clearly seen to be foredoomed to fail" (see Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ)). The applicant's motion for discovery was in response to the contention that the proceeding was entirely speculative. The applicant submitted that the proceeding was a bona fide challenge to the issue of the warrants, and that in such a case discovery is warranted. Alternatively, he submitted that at least the legal privilege claim was not speculative, stood in a special category, and merited orders for limited discovery and interrogation.
His Honour examined the legislative scheme presented by the Customs Act and the TI Act (see later), and the jurisdiction of this Court and of the criminal trial court to review the validity of warrants. His Honour concluded that discovery should be ordered only in respect of the legal privilege claim. He said (at 49-50):
"As I have refused to order discovery on the unsubstantiated claims they cannot be particularised, are entirely speculative and should be struck out.
It may transpire that the factual inferences I have drawn or the factual assumptions I have made, particularly as to disclosure to the eligible Judges of matters relating to the applicant, may prove to be incorrect. My decision is not intended to and would not prevent the applicant from seeking leave to amend his application or his pleading if that is the case. Whether the leave would be granted would be a matter for determination on that occasion if and when it arises.
I also wish to emphasise that the principles applied by me in striking out all claims other than the legal privilege claim are those established in this Court for the judicial review of an administrative decision in the exercise of the jurisdiction of the Court under the ADJR Act or s.39B. Quite different principles might be applied by the trial court in relation to the exercise of its quite different jurisdiction and procedures in a criminal trial. Nothing that I have said should fetter or inhibit the trial court in that regard.
Finally, it has been a relevant factor in my decision to strike out those claims and to refuse discovery, that an alternative and more appropriate course is open to the applicant to pursue his challenge to the validity of the warrants on those grounds. If for any reason, in a particular case, such a challenge was not available in the course of the criminal process then fresh consideration may have to be given as to how to resolve the tension between the two competing principles of the Court not lending the aid of its processes to a fishing exercise and the Court not allowing its processes to be used to immunise LD and TI warrant decisions from judicial review.
14.0 Conclusion
For the reasons set out above I have concluded that the only claim which is to continue to be entertained by the Court is the legal privilege claim. I have also concluded that it is appropriate to order limited discovery and inspection and to grant limited leave to interrogate in respect of that claim. I have concluded that otherwise it is appropriate for all the other claims in the proceeding to be struck out.
Discovery and interrogatories are to be limited to the facts disclosed to the eligible Judges in relation to the matters set out in paragraphs 1, 1A and 69A(b) of [the] statement of claim."
DEVELOPMENTS SINCE THE DECISION OF MERKEL J
Merkel J made orders on 16 September 1996. An amended statement of claim was filed on 15 October 1996. A defence was filed on 22 October 1996. The amended statement of claim omitted the paragraphs which Merkel J ordered to be struck out. Paragraphs 1 and 1A, but not par 69A, quoted above, remained. The gravamen of the complaint made in the amended pleading is found in pars 75 and 76:
"75. Further or in the alternative, by determining to issue and/or issuing each or any of the listening device or intercept warrants, when each of the Fifth, Sixth and Seventh Respondents knew or ought to have known that the activities purportedly authorised by such warrants would inevitably lead to the monitoring and/or recording of communications which were the subject of legal professional privilege, each of the Fifth, Sixth and Seventh Respondents
(a) acted beyond the powers granted to him by the Customs Act and the [TI] Act respectively;
(b) acted in excess of the jurisdiction granted to him by the Customs Act and the [TI] Act respectively;
(c) acted unlawfully;
(d) did not act so as effectively to grant any warrant under the Customs Act or the [TI] Act.
76. By reason of -
(a) (deleted);
(b) (deleted);
(c) the failure of the Fifth, Sixth and Seventh Respondents to make appropriate conditions and directions to give effect to protection of legal professional privilege, and/or
(d) the wrongful acts of the Fifth, Sixth and Seventh Respondents referred to in paragraph 81 hereof -
the listening device warrants and the telephone intercept warrants are each of them invalid."
For reasons that will appear, it is important that the defence to pars 75 and 76 be set out:
"75. As to paragraph 75 [the AFP respondents] say:
(a) each of the fifth, sixth and seventh respondents issued warrants pursuant to the Customs Act 1901 and the Telecommunications (Interception) Act 1979 to members of the AFP in the knowledge that the applicant herein (Carmody) was
(i) in practice as a barrister; and
(ii) the occupant of professional chambers at Room 9, Level 3, Four Courts Building, 180 William Street, Melbourne;
(b) at the time the fifth respondent issued the warrants on 5 July [1994] (as referred to in the Statement of Claim), the fifth respondent requested the first respondent and members of the AFP to identify in the log to be kept of recordings made pursuant to the warrants ('the log') any recordings made by use of a listening device installed in the applicant's chambers which might be the subject of legal professional privilege;
(c) in accordance with the fifth respondent's request, the first respondent and members of the AFP identified in the log recordings made by use of a listening device installed in the applicant's chambers which might be the subject of legal professional privilege;
(d) the second respondent and members of the AFP continued the practice of identifying in the log kept of recordings made by use of a listening device installed in the applicant's chambers recordings which might be the subject of legal professional privilege;
(e) the third respondent and members of the AFP continued the practice of identifying in the log kept of recordings made by use of a listening device installed in the applicant's chambers recordings which might be the subject of legal professional privilege;
(f) save as aforesaid they deny each and every allegation contained in paragraph 75.
PARTICULARS
As to subparagraphs (a), (b) and (c), they refer to paragraph 5 of the affidavit of Jennifer Marie Schubert sworn 15 August 1996; paragraph 4 of the affidavit of Robert Hallowell sworn 22 August 1996; and paragraph 8 of the affidavit of Berdj Tchakerian sworn 12 December 1996.
76. As to paragraph 76, they say:
(a) they deny each and every allegation contained in paragraph 76;
(b) without derogating from the generality of the foregoing denial, they say:
(i) that the fifth, sixth and seventh respondents were authorised by the Customs Act 1901 and/or the Telecommunications (Interception) Act 1979 to issue the listening device warrants and/or the telephone intercept warrants, notwithstanding that a recording and/or interception to be made pursuant to the said warrants might subsequently be found to be the subject of a claim for legal professional privilege;
(ii) in issuing the listening device warrants and/or the telephone intercept warrants none of the fifth, sixth or seventh respondents was bound to stipulate conditions or restrictions in the said warrants or any of them relating to the recordings and/or interceptions to be made pursuant to the warrants, notwithstanding that the recordings might subsequently be found to be the subject of a claim for legal professional privilege; and
(iii) if (contrary to paragraph (ii) above) the fifth, sixth and seventh respondents (or any of them) were bound to stipulate such conditions or restrictions (which is expressly denied), any failure to do so does not vitiate the listening device warrants and/or the telephone intercept warrants (or any of them)."
It is convenient to note also the last two paragraphs of the defence:
"83. In further answer to the whole of the Statement of Claim they say:
(a) the trial judge having control of the prosecution is fully able to hear and determine all matters relating to the use that may be or that may have been made of recordings made pursuant to the said warrants (or any of them) which might be the subject of a claim for legal professional privilege and to determine whether or not to uphold that claim and to exclude the recording, or evidence relating thereto from the trial;
(b) the Court in the exercise of any discretion which it may have to grant or refuse relief sought by the applicant ought to refuse such relief having regard to the powers of the trial judge.
84. Further or alternatively, the Court in the exercise of any discretion which it may have to grant or refuse relief sought by the applicant ought to refuse such relief having regard to the matters specifically set out in paragraph 75 above."
Discovery and interrogation have taken place. Verified statements in answer to interrogatories were filed by Federal Agents MacKellar, Sharp and Phillips. These were admitted into evidence before us, but during the course of the hearing the applicant and the AFP respondents handed up the agreed statement of facts referred to earlier, and agreed that this made it unnecessary for us to take into account the answers to interrogatories which should therefore be treated as withdrawn as an exhibit. We have proceeded accordingly.
On 21 February 1997, the applicant filed a notice of motion returnable on the commencement of the hearing seeking leave to amend the statement of claim by inserting new pars 76A and 76B. The amendment would re-introduce what Merkel J had referred to as "the non-disclosure claims". The proposed paragraphs are as follows:
"76A. Further or in the alternative, at all material times the First, Second, and Third Respondents were under a duty, at the time of making each of the aforesaid applications, to disclose to the Fifth, Sixth and Seventh Respondents respectively all matters which, if disclosed to such Respondent and not properly considered by him, would vitiate the warrant.
76B. In breach of the duty aforesaid, at the time of making the applications the First, Second and Third Respondents failed to disclose to the Fifth, Sixth and Seventh Respondents respectively -
76B.1 the fact that the use of a listening device pursuant to the first chambers listening device warrant, and the second and third personal listening device warrants would be likely to result in the interception of conversations which may be the subject of legal professional privilege.
76B.2 the fact that the interception of telephone conversations pursuant to each of the home and mobile intercept warrants would be likely to result in the interception of conversations which may be the subject of legal professional privilege."
The motion for leave to amend was opposed by the AFP respondents.
An affidavit of Jennifer Marie Schubert, solicitor and senior associate of the applicant's solicitors, in support of the motion, referred to passages in the reasons for judgment of Merkel J. In particular, it referred to the passage quoted earlier, in which his Honour contemplated the possibility of an application for leave to amend if the processes of discovery or interrogation, or both, should reveal that his factual inferences or factual assumptions were incorrect. Paragraphs 4-7 of Ms Schubert's affidavit were substantially in the nature of submissions, but it is useful to set them out:
"4. Discovery and Interrogation has now occurred. It is apparent from the disclosed material that at the time of each application the only material placed before each eligible Judge regarding the Applicant's occupation was the fact that he was a Barrister-at-Law practising from room 9, 3rd floor, Four Courts Building, 180 William Street, Melbourne. It is apparent that neither the Sixth nor the Seventh Respondents made any comment regarding that information nor the implications thereof, nor sought to elicit any further information. The Fifth Respondent, at the time of the first application, apparently consulted some form of reference book and then informally advised the First Respondent to make a note of any possibly privileged conversations which were overheard and recorded.
5. It further transpires from the Defence filed on behalf of the Respondents that, when purportedly exercising the powers granted by the first chambers listening device warrant, the second personal listening device warrant and the third personal listening device warrant, the Federal Police recorded conversations which took place at the Applicant's professional chambers, which communications included communications which were or appeared to be communications which may be the subject of legal professional privilege. It is further admitted that the interception of telephone communications pursuant to each of the mobile and home intercept warrants resulted in the interception of such privileged or purportedly privileged communications. It is, respectfully, submitted that, in particular, the Sixth and Seventh Respondents should have been apprised of the fact that listening devices at the Applicant's chambers and over the Applicant's home telephone and mobile telephone had apparently resulted in the interception of material which may have attracted the operation of legal professional privilege.
6. It is further respectfully submitted that, had this been disclosed to the various eligible judges, this information and the inference to be drawn therefrom - that is, that the placing of a listening device in the Applicant's chambers and the interception of communications passing over his home and mobile telephones would be likely to result in the interception of privileged or apparently privileged communications - was information which formed a consideration relevant to the exercise of each of the eligible judges' discretions. It is respectfully submitted that each of the First, Second and Third Respondents was under a duty to disclose such a relevant consideration to the judge considering the various applications.
7. It is respectfully submitted that the making of these amendments will not unduly lengthen the proposed trial of this action. The Applicant does not propose to call evidence other than to rely on the admissions contained in the Defence and summarised in this Affidavit. It is anticipated that this material can be adequately covered in an agreed set of facts. It is respectfully submitted that the question of such a duty of disclosure is quite interconnected with the questions already on foot as to the relevance of considerations of legal professional privilege and the validity of the warrants."
BRIEF OUTLINE OF PARTIES' SUBMISSIONS
The Applicant's Submissions
The applicant's submissions proceeded along the following lines:
Neither the TI Act nor the Customs Act, as a matter of construction, empowers a designated person to issue warrants which authorise the interception, overhearing or recording of communications subject to legal professional privilege. The principle of construction, accepted in Coco v The Queen (1994) 179 CLR 427, that legislation should not be construed as interfering with fundamental rights unless there is a clear expression of an unmistakable and unambiguous intention that it is to do so, is applicable. This requirement is not satisfied in either Act.
In the alternative, the Issuers were required to take into account the likelihood that the issue of a warrant would lead to the interception of privileged communications. The modern doctrine of legal professional privilege, subject to the crime/fraud exception, is absolute and does not give a protection liable to be displaced by any countervailing interests, even the public interest in the investigation, prosecution and suppression of crime. The material disclosed to each Issuer raised an inference that the warrants sought would probably or inevitably lead to the interception of, and therefore intrusion into, privileged communications. This consideration was relevant to the exercise of the discretion reposed in each Issuer whether to issue the warrant sought. The failure by each Issuer to take steps to protect the privilege gives rise to an inference that he did not properly take the consideration into account. In the alternative, if he did take it into account at all, by issuing unconditional warrants each exceeded his authority.
The first Chambers LD warrant and all three of the personal LD warrants authorised the AFP to listen to and record conversations in the Chambers. Once that authority was exercised, it was inevitable that privileged conversations would be intercepted. In relation to the mobile TI warrant, each Issuer should be taken to have understood that mobile telephones are "constantly used by barristers as a means of communication with their instructing solicitors and/or their clients." In relation to the Home TI warrants, all three Issuers should be taken to have understood that the applicant might "be telephoned by solicitors or desperate clients who require out-of-hours advice, or for police station attendances, or for advice regarding late briefs, or other privileged matters." Finally:
"[I]t was at least a reasonable possibility that a home listening device warrant would result in the interception of privileged communications. The warrants did not specify the place at which the listening device[s] were to be inserted at the Applicant's home, and it was open to the Federal Police to place the listening device adjacent to the Applicant's telephone. Therefore, if the applicant received privileged communications at his home, it was quite likely that such a placement would result in the overhearing of the Applicant's responses to privileged communications, which responses were privileged and which, in any event, may well echo the privileged communications received by the Applicant."
To issue an unconditional warrant in such circumstances and in the light of the established law that legal professional privilege prevails over a warrant shows that the Issuers did not turn their minds adequately to the consequences of the disclosed fact that the applicant was a barrister in practice.
In relation to the motion for leave to amend, privileged communications had been intercepted pursuant to the Chambers LD warrant, the second personal LD warrant, and each of the Mobile and Home TI warrants. Those facts, which are admitted by the AFP respondents, were not disclosed. The Full Court decisions in Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 ("Lego") and Flanagan do not determine the existence and nature of any duty of disclosure which was incumbent upon the applicants for the warrants in the present case, because Lego concerned a search warrant issued under s 10 of the Crimes Act 1914 (Cth) and Flanagan concerned TI warrants issued under s 46 (not s 45) of the TI Act.
The AFP Respondents' Submissions
The AFP respondents' submissions proceeded along the following lines:
Both the Customs Act and the TI Act provide for the issue of warrants which authorise a listening to, and recording of, conversations. Any legal professional privilege arises at the instant when the first act authorised by such a warrant takes place. In the nature of things, it is impossible to devise a condition which would prevent a treading upon the privilege. It follows that both statutes must be taken to have intended an infringement of the privilege to the limited extent necessary for execution of the warrant. In any event, whether privilege attaches depends on facts extrinsic to the communication. Those facts are unlikely to be known to AFP officers at the time of interception and may not be known until completion of the investigation. Indeed,
"The nature of the difficulty is made patent where the Crown's case is that communications which have the semblance of privilege are not privileged, because they were made for the purpose of or as part of the processes of the crime."
The question of privilege can be addressed sensibly only when the client to whom the privilege belongs or his or her legal adviser becomes aware that the AFP holds a record of the relevant communication. Neither Act works a substantial injustice by authorising the interception of potentially privileged communications, since the AFP must maintain the confidentiality of information obtained under TI and LD warrants and must not communicate it except in the very limited circumstances provided for in the Acts: see TI Act, s 63 and Customs Act, s 219F.
It is inherently unlikely that the Issuers did not consider the question of privilege since they were informed that the person in question was a barrister.
The motion for leave to amend should be dismissed because:
(a) the evidence before the Court is not materially different from that which was before Merkel J;
(b) the non-disclosure ground cannot succeed; and
(c) there is no injustice to the applicant who may raise the non-disclosure issue at his trial in the county court; see Flanagan.
THE LEGISLATION
The TI Act
The preamble to the TI Act is as follows:
"An Act to prohibit the interception of telecommunications except where authorised in special circumstances or for the purpose of tracing the location of callers in emergencies, and for related purposes."
Part II (s 7) of the TI Act is headed "INTERCEPTION OF TELECOMMUNICATIONS". Subsection 7(1) prohibits interception of a communication passing over a telecommunications system and related acts. Subsection 7(2) creates "exceptions" to the prohibition, including "(b) the interception of a communication under a warrant." The word "warrant" is defined in subs 5(1) to mean, relevantly, a warrant issued or to be issued under Part VI (ss 32-61A) of the TI Act, authorising the AFP to intercept telecommunications. The notion of "interception" of a communication is important. It is defined in subs 6(1):
"6.(1) For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication." (Emphasis added.)
The notion of "lawfully obtained information" assumes importance in the TI Act. Subsection 6E(1) provides:
"6.E(1) Subject to subsection (2), a reference in this Act to lawfully obtained information is a reference to information obtained (whether before or after the commencement of this section) by intercepting, otherwise than in contravention of subsection 7 (1), a communication passing over a telecommunications system."
Part VI (ss 32-61A) is headed "WARRANTS AUTHORISING THE AUSTRALIAN FEDERAL POLICE TO INTERCEPT TELECOMMUNICATIONS." The TI warrants in the present case were issued under s 45 of the TI Act which is as follows:
"Where an agency applies to an eligible Judge for a warrant in respect of a telecommunications service and the Judge is satisfied, on the basis of the information given to the Judge under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;
(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone;
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved; and
(e) having regard to:
(i) the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;
(ii) how much of the information referred to in paragraph (d) would be likely to be obtained by such methods; and
(iii) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason;
some or all of that information cannot appropriately be obtained by such methods;
the Judge may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from the service."
The AFP is an "agency" and the offence in which the applicant was supposed to have been involved for the purpose of the investigation referred to in s 45 was that of being in possession of a prohibited import, namely heroin, contrary to subs 233B(1) of the Customs Act, a "class 1 offence" as defined in s 5 of the TI Act.
Section 46 of the TI Act also provides for the issue of TI warrants, but in respect of "class 2 offences". A "class 2 offence" has the meaning given by s 5D of the TI Act. While class 2 offences are, on any reckoning "serious", class 1 offences are "more serious". Although the offence allegedly committed by the applicant is a class 1 offence, and, accordingly, the TI warrants were issued under s 45, much reference was made to s 46 of the TI Act for various purposes. Section 46 is as follows:
"46. (1) Where an agency applies to an eligible Judge for a warrant in respect of a telecommunications service and the Judge is satisfied, on the basis of the information given to the Judge under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;
(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone;
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 2 offence, or class 2 offences, in which the person is involved; and
(e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge should issue a warrant authorising such communications to be intercepted;
the Judge may, in his or her discretion, issue such a warrant.
(2) The matters to which the Judge shall have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1);
(b) the gravity of the conduct constituting the offence or offences being investigated;
(c) how much the information referred to in paragraph (1) (d) would be likely to assist in connection with the investigation by the agency of the offence or offences;
(d) to what extent methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;
(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason." (Emphasis added.)
It will be noted that under par 46(1)(e), the eligible Judge must have regard to the matters referred to in subs 46(2) "and to no other matters", but that there is no similar express restriction on the matters to which an eligible Judge may have regard when dealing with an application under s 45.
"Division 3" of Part VI is referred to in par (a) of both ss 45 and 46(1). That Division (ss 39-44) deals with "Applications for Warrants" It seems necessary to note only s 42:
"42. (1) A written application by an agency for a warrant shall be accompanied by an affidavit complying with this section.
(2) The affidavit shall set out the facts and other grounds on which the application is based.
(3) The affidavit shall specify the period for which it is requested that the warrant be in force and shall state why it is considered necessary for the warrant to be in force for that period.
(4) The affidavit shall set out, in relation to the service, and in relation to each person to whom the application relates, the following information, so far as it can be derived from the agency's records:
(a) the number of previous applications (if any) for warrants that the agency has made and that related to the service or to that person, as the case may be;
(b) the number of warrants (if any) previously issued on such applications; and
(c) particulars of the use made by the agency of information obtained by interceptions under such warrants.
(5) Notwithstanding subsection (1), a written application may be accompanied by 2 or more affidavits that together set out each matter that, but for this subsection, this section would have required an affidavit accompanying the application to set out, specify or state."
Section 49, which is in Division 4, and particularly subs 49(2), assumes importance:
"49. (1) A warrant shall be in accordance with the prescribed form and shall be signed by the Judge who issues it.
(2) A warrant may specify conditions or restrictions relating to interceptions under the warrant.
(3) A warrant shall specify, as the period for which it is to be in force, a period of up to 90 days.
(4) A Judge shall not vary a warrant by extending the period for which it is to be in force.
(5) Neither of subsections (3) and (4) prevents the issue of a further warrant in respect of a service in respect of which a warrant has, or warrants have, previously been issued.
(6) In subsection (5), 'warrant' means a warrant issued under this Act.
(7) A warrant shall set out short particulars of each serious offence in relation to which the Judge issuing the warrant was satisfied, on the application for the warrant, as mentioned in paragraph 45 (d) or 46 (1) (d), as the case may be." (Emphasis added.)
Part VII (ss 62-79) of the TI Act is headed "DEALING WITH INTERCEPTED INFORMATION". How lawfully obtained information may be dealt with is closely confined. The provisions of chief interest for present purposes are subs 63(1), par 67(a), subs 74(1) and s 78, which are as follows:
"63.(1) Subject to this Part, a person shall not, after the commencement of this Part:
(a) communicate to another person, make use of, or make a record of; or
(b) give in evidence in a proceeding;
lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7(1).
...
67. An officer of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following:
(a) lawfully obtained information ...;
(b) ...
...
74.(1) A person may give lawfully obtained information ... in evidence in an exempt proceeding.
...
78. Nothing ... in this Part renders information, or a restricted record, admissible in evidence in a proceeding to a greater extent than it would have been admissible in evidence in that proceeding if this Part had not been enacted."
The definition of "permitted purpose" is found in s 5 and that of "exempt proceeding" is found in s 5B. Section 5 defines "permitted purpose" in relation to the AFP to mean a purpose connected with an investigation by the AFP of a "prescribed offence". It is not in dispute that the offence referred to in the 13 warrants is a prescribed offence. Section 5B defines "exempt proceeding" to mean, inter alia, a proceeding by way of a prosecution for a prescribed offence.
The Customs Act
The LD warrants were issued under subs 219B(5) or 219B(7) of the Customs Act, according to whether they were in respect of the applicant personally or in respect of premises. Subsections 219B(5)-(8) are as follows:
"(5) Where, upon application being made to a Judge for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to a particular person, the Judge is satisfied, by information on oath, that:
(a) the person has committed, or is suspected on reasonable grounds of having committed, or of being likely to commit, a narcotics offence; and
(b) the use by officials of the agency of a listening device to listen to or record words spoken by or to that person will, or is likely to, assist officials of the agency in or in connection with:
(i) inquiries that are being made in relation to a narcotics offence that the person has committed or is reasonably suspected of having committed; or
(ii) if there are circumstances reasonably giving rise to the suspicion that the person is likely to commit a narcotics offence - inquiries that are being made in relation to the likely commission, by that person, of that offence;
the Judge may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by, to or in the presence of that person, and such a warrant may authorize officials of the agency to enter any premises in which the person is, or is likely to be, for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device.
(6) A Judge may grant a warrant under subsection (5) authorizing the use of a listening device for the purpose of listening to or recording words spoken by, to or in the presence of a person anywhere in Australia.
(7) Where, upon application being made to a Judge for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to particular premises, the Judge is satisfied, by information on oath, that:
(a) there are reasonable grounds for suspecting that the premises have been, or are likely to be, used in connection with the commission of a narcotics offence; and
(b) the use by officials of the agency of a listening device to listen to or record words spoken by or to persons in those premises will, or is likely to, assist officials of the agency in, or in connection with, inquiries that are being made in relation to the use, or likely use, of the premises in connection with the commission of a narcotics offence;
the Judge may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by or to any person while the person is in those premises, and such a warrant may authorize officials of the agency to enter those premises for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device.
(8) A Judge may grant a warrant under subsection (7) authorizing the use of a listening device in respect of premises situated anywhere in Australia."
The AFP is a "Commonwealth law enforcement agency". The expression "narcotics offence" is defined in subs 219A(1) to mean "an offence punishable as provided by section 235." It is not in dispute that the offence of being in possession, without reasonable excuse, of a prohibited import, namely, heroin, contrary to subs 233B(1) of the Customs Act, is an offence so punishable.
REASONING
Does the Legislation Permit Interception of Communications the Subject of Legal Professional Privilege?
The applicant's first submission is that neither the TI Act nor the Customs Act permits the issue of a warrant authorising interception of communications that are the subject of legal professional privilege. This submission is founded upon the proposition that legal professional privilege is not merely a rule of evidence, but a substantive rule of law "of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen": Baker v Campbell (1983) 153 CLR 52 at 118 (Deane J). The applicant relies on the principle that the presence of general words in a statute "is insufficient to authorise interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required": Coco v The Queen (1994) 179 CLR 427 at 436 (Mason CJ, Brennan, Gaudron and McHugh JJ), referring to the speech of Lord Browne-Wilkinson in Wheeler v Leicester City Council [1985] AC 1054 at 1065.
It is clear that legal professional privilege falls within the presumption that legislation is not intended to interfere with basic common law rights, unless the words of the statute expressly or necessarily require that result: Baker v Campbell, at 123 (Dawson J); see also at 96-7 (Wilson J); and at 117-118 (Deane J). However, the presumption can be displaced by implication. In Coco v The Queen, the joint judgment said this (at 438):
"The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope". (Footnote omitted).
We first consider, in the light of these comments, whether the terms of the TI Act displace the presumption that the legislation is not intended to interfere with the fundamental protection accorded to individuals by legal professional privilege. Section 45 of the TI Act provides that an eligible Judge who is satisfied of the five matters specified in the section "may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from [a telecommunications] service". It will be recalled that for the purposes of the TI Act, subs 6(1) provides that:
" ... interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication".
Paradoxically, the fundamental difficulty confronting the applicant's submission is the breadth of legal professional privilege. The privilege comes into existence immediately a protected communication is made. In Baker v Campbell, Wilson J (at 96) adopted as correct the following statement by Thurlow J of the Canadian Federal Court of Appeal in Re Director of Investigation and Research and Shell Canada Ltd (1975) 55 DLR (3d) 713 at 723:
"[I]t appears to me that the confidential character of such communications, whether oral or in writing, comes into existence at the time when the communications are made. As the right to protection for the confidence, commonly referred to as legal professional privilege, is not dependent on [there] being litigation in progress or even in contemplation at the time the communications take place, it seems to me that the right to have the communications protected must also arise at that time and be capable of being asserted on any later occasion when the confidence may be in jeopardy at the hands of anyone purporting to exercise the authority of the law."
In Carter v Managing Partner, Northmore Hale Davey & Leake (1995) 183 CLR 121, a case involving documents, McHugh J (at 166) emphasised that "[it] is the communication and not the document that needs and is given protection" by legal professional privilege. To the same effect are passages in Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 (HCA/FC) at 554 (Dawson J), 562 (Toohey J), 583 (McHugh J), and 591 (Gummow J).
A warrant issued under s 45 of the TI Act authorises the listening to or recording, by any means, of a communication. It is difficult to see how the legislation could operate effectively or, indeed, at all, if s 45 were to be construed as not authorising the recording or overhearing of privileged communications. Although there was no evidence before the Court as to the means by which communications are intercepted pursuant to a warrant, we understand it to be undisputed that, where an intercept device is installed in respect of a telecommunications service, all conversations taking place over that service, indeed all sounds on the service, are intercepted and are recorded by means of a laser-generated optical disk, which is retained for future use. In general, a person to monitor the communications is on duty about sixteen hours per day, listening to conversations as they occur and are recorded. From the disk, tape recordings can be made of relevant material for later use, if required. What is important is that, as the TI Act allows, conversations are recorded, and often overheard, as they take place. In 1987, when the relevant provisions were enacted in their current form (by the Telecommunications (Interception) Amendment Act 1987 (Cth) ("the 1987 Amendment Act")), Parliament must have contemplated that this would be the position.
It follows that, as a practical matter, it is impossible to predict in advance whether a particular conversation will or will not contain privileged communications. Similarly, in practice, it will often be impossible to ascertain with any degree of assurance whether a particular conversation is or is not privileged while it is taking place (that is, at the time of the interception authorised by the legislation). For example, if an interception device is placed on the telephone service in a solicitor's office or barrister's chambers, any given conversation involving that lawyer may or may not be privileged. Whether it is privileged, in whole or in part, will depend upon the nature and purpose of the communication. Even a conversation which bears the appearance of a privileged communication may not be privileged. If the lawyer is engaged in a criminal enterprise (as is alleged of the present applicant) he or she might communicate in a manner designed to attract the privilege, yet the communication may not in truth be privileged because it is made in furtherance of an illegal purpose. Conversely, a communication which does not appear on its face to be privileged may, in context, prove to have been made for the purpose of obtaining legal advice.
The position is the same in relation to the interception of communications taking place on a telephone service used by a private individual who is suspected of serious offences. It would generally be reasonable to expect that most of those communications would not be privileged. Yet that individual and others using the service might make telephone calls genuinely for the purpose of seeking and obtaining legal advice. If they do so, their conversations are covered by legal professional privilege. However, it is impossible to know in advance whether any such conversations will take place during the period in which an interception device is in place. It will also often be impossible for those recording the conversation (assuming a monitor is on duty) to determine at the time of the recording whether a particular conversation is or is not privileged.
In our view, having regard to the matters to which we have been referred, the terms of the TI Act rebut the presumption applied in Coco v The Queen and Baker v Campbell. The TI Act would be unworkable if it were to be construed as not authorising the interception of communications subject to legal professional privilege. Section 45 of the TI Act is clearly intended to provide effective powers of interception in relation to specified serious offences. It would frustrate that legislative purpose if warrants could not be relied on to intercept a particular category of communications that is incapable of identification either before or at the time of the interception. In this respect, the present case is distinguishable from Coco v The Queen, in which the listening device provisions of the Invasion of Privacy Act 1979 (Qld) were said to be workable without permitting a grant of unilateral authority to enter upon private property.
These factors also distinguish the present case from decisions which have construed legislation so as not to abrogate legal professional privilege. Baker v Campbell, for example, concerned the former s 10 of the Crimes Act 1914 (Cth) ("the Crimes Act"), which empowered a Justice of the Peace to issue a search warrant authorising the seizure of, inter alia, "anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of [an offence against Commonwealth law]". As Baker v Campbell itself demonstrates, ordinarily the person whose premises are the subject of the search (in that case, a firm of solicitors) will be present at the time of the search and will have the opportunity to assert that particular documents about to be seized are in fact protected by legal professional privilege. Moreover, the warrant itself must identify the things authorised to be seized with certainty: see Arno v Forsyth (1986) 9 FCR 576 (FCA/FC) at 581-582 (Fox J), and Dunesky v Elder (1994) 54 FCR 540 (FCA/FC). In Perron Investments Pty Ltd v Deputy Commissioner of Taxation (WA) (1989) 90 ALR 1 (FCA/FC), it was held that s 264(1) of the Income Tax Assessment Act 1936 (Cth), which empowers the Commissioner to issue notices requiring the furnishing of information and the production of documents, did not abrogate legal professional privilege. However, as Lockhart J (at 10-11) pointed out, s 264 affords the recipient a reasonable time to consider his or her position before complying with its requirements, including an opportunity to seek advice in relation to material which may be privileged.
In our view the same conclusions apply to subss 219B(5) and (7) of the Customs Act. These subsections provide for a Judge in specified circumstances to authorise "[the] use [of] a listening device for the purpose of listening to or recording words spoken by, to or in the presence of [a] person". (Emphasis added.) Again, there was no evidence before us as to how listening devices work. However, we were informed by counsel that, in practice, listening devices operate within their range continually, that is to say, without interruption. Sounds are recorded on a long-life magnetic tape, as "a real time continuous record". A monitor activates a separate recording tape when he or she hears something that is thought to be significant, thereby creating a "smaller working copy". The master tape is retained for future reference and as a check to provide the context of particular conversations recorded on the smaller tape.
In the case of listening devices, as with telephone intercepts, it is in practice impossible to predict in advance whether particular conversations will or will not contain privileged communications. This is true even when a person whose conversations are to be recorded is a legal practitioner. Furthermore, for the reasons which we have already given, it is usually impossible to determine, at the time when communications are being listened to or recorded, whether they are privileged, in whole or in part. Accordingly, in our view, subss 219B(5) and (7) of the Customs Act must also be construed as authorising the "listening to or recording" of communications that are the subject of legal professional privilege.
Legislative History
We have concluded that the TI Act and the Customs Act are intended to override legal professional privilege to the extent necessary to permit privileged communications to be listened to and recorded, without considering the legislative history of the relevant provisions. Indeed, counsel did not refer to that history. Yet, as it happens, the genesis, particularly of the relevant provisions of the TI Act, sheds light on the intention of Parliament.
Section 45 of the TI Act was introduced by the 1987 Amendment Act. Prior to 1987, the TI Act empowered a Judge to issue a warrant in respect of a telecommunications service where (among other requirements) there were reasonable grounds to suspect that the service was being used by a person who had committed a "narcotics offence". The 1987 Amendment Act extended the statutory power so as to authorise the issue of warrants permitting interception where serious offences in addition to narcotics offences were in question.
The TI Act was reviewed by the Royal Commission of Inquiry into Alleged Telephone Interceptions, which reported in 1986. The Royal Commission recommended, inter alia, that the provisions limiting the use of telephone interceptions to drug trafficking offences be removed: Report (AGPS, 1986), Vol 1, 354. The Royal Commission's proposals and a Bill implementing them were, in turn, referred to a Joint Select Committee, which reported in November 1986: Report of the Joint Select Committee on Telecommunications Interception (AGPS, Parliamentary Paper No 306/1986) ("the 1986 Report").
The Joint Select Committee accepted that the powers of interception should be extended to serious offences, as recommended by the Royal Commission, but that the number of such offences should be kept to a minimum. Among its many recommendations, the Committee proposed that legal professional privilege should be protected. The relevant paragraph of the 1986 Report is as follows:
"6.44 Legislation should provide that, in the implementation of interceptions, legal professional privilege is protected. The Canadian Privacy Act as amended to 1977 provides the following model:
(1.1) No authorization may be given to intercept a private communication at the office or residence of a solicitor, or at any other place ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients, unless the judge to whom the application is made is satisfied that there are reasonable grounds to believe that the solicitor, any other solicitor practising with him, any person employed by him or any such solicitor or a member of the solicitor's household has been or is about to become a party to an offence.
(1.2) Where an authorization is given in relation to the interception of private communications at a place described in subsection (1.1), the judge by whom the authorization is given shall include therein such terms and conditions as he considers advisable to protect privileged communications between solicitors and clients." (Footnote omitted.)
The Telecommunications (Interception) Amendment Bill 1987 (Cth) ("the 1987 Bill") was introduced as the Government's response to the 1986 Report: see the second reading speech of the Hon L K Bowen QC (House of Representatives, 1987, Debates, Vol. HR 154, 2306). The Attorney-General's second reading speech included a schedule specifying the recommendations of the Joint Select Committee and the Government's responses to them. The Government's response to the recommendation that legal professional privilege be protected was as follows (at 2313):
"Not accepted. The Government does not believe a special exception should be made in this case. Legal professional privilege is already sufficiently protected under the laws of evidence."
The amendments to the TI Act preserve the rule that communications which are subject to legal professional privilege cannot be adduced in evidence, even if lawfully intercepted: see TI Act, subs 74(1) and s 78.
This brief account of the background to the 1987 amendments shows that the Government of the day directed attention specifically to the Joint Select Committee's proposal that legal professional privilege should be protected. It squarely rejected the Committee's proposal. The enactment of the legislation in the form submitted to Parliament by the Attorney-General strongly supports the conclusion that the legislative intention was to override legal professional privilege and to permit the interception of communications that would otherwise be privileged.
The legislative history of subss 219B(5) and (7) of the Customs Act is, of course, different. Those subsections were introduced into the Customs Act by the Customs Amendment Act 1979 (Cth) ("the 1979 Amendment Act"). They therefore predated the comparable provisions of the TI Act and were not the subject of consideration by the Joint Select Committee in its 1986 Report. However, the 1979 Amendment Act was drafted at a time when the orthodox view was that legal professional privilege was limited to judicial or quasi-judicial proceedings. That view, which was confirmed by the High Court in O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1, was almost immediately over-ruled in Baker v Campbell. But in 1979 there was no need for the drafter to address specifically whether the powers to be conferred by subss 219B(5) and (7) should over-ride legal professional privilege. At that time, the privilege was not regarded as a substantive rule of law, and accordingly was not thought to protect communications at and from the time when they took place. It follows that the history of subss 219B(5) and (7) of the Customs Act, although different from that of s 45 of the TI Act, is consistent with the view that Parliament intended those provisions to over-ride legal professional privilege.
The Applicant's Alternative Submission: Relevant Considerations
We now turn to the applicant's alternative submission. The applicant's case in this respect is, and must be, that the issue of the warrants without any condition or restriction protective of legal professional privilege exposes a failure to take into account a consideration which, by law, the Issuers were required to take into account. In our view, the applicant has not made out that case.
Both s 45 of the TI Act and subss 219B(5) and (7) of the Customs Act are similar in structure. Both provide that the designated person "may" issue a warrant if "satisfied" of certain matters. It is not suggested before us that the Issuers were not entitled to be satisfied of those matters. Accordingly, it is not in issue that the discretionary power to issue the warrants arose. The applicant challenges the exercise of the discretionary power, submitting that, on the facts, the discretion could, in accordance with law, only (a) have been exercised in favour of not issuing the warrants at all, or (b) have been exercised only subject to a condition or restriction protective of legal professional privilege.
The likelihood that privileged communications would be intercepted differed as between the warrants. As we have already noted, any warrant might be found to have authorised interception of communications which are protected by legal professional privilege. In the present case, it was highly likely that pursuant to the Chambers LD warrant such communications would be intercepted. The Personal LD warrants authorised the use of a listening device for the purpose of listening to or recording words spoken by, to or in the presence of the applicant (a barrister) anywhere, including in the Chambers. It is not obvious, however, that the Issuers must or ought to have understood that exercise of the authority given by such Personal LD warrants would in fact necessarily result in interception of privileged conversations. Similarly, although the applicant's known profession as a barrister made it possible that conversations protected by legal professional privilege would be intercepted pursuant to the authority given by the Home LD warrant and the various TI warrants, which it will be recalled did not relate to any telephone service installed in his Chambers, it is not obvious that the Issuers must or should have appreciated that this would probably occur.
We proceed on the basis that Jenkinson J, the Issuer of the first "set" of warrants, knew that privileged communications would probably be intercepted pursuant to the exercise of the authority given by the Chambers LD warrant. Indeed, the evidence shows that his Honour gave attention to the matter. We also proceed on the basis that it was foreseeable that some privileged communications might well be intercepted pursuant to all the other warrants.
The applicant's alternative submission, referred to above, raises three questions:
(1) What are the principles governing the question whether the Issuers were bound to take into account the likelihood of interception, pursuant to exercise of the authority given by the particular warrant sought, of communications protected by a legal professional privilege ("the LPP Consideration")?
(2) By the application of those principles, were the Issuers required to take into account the LPP Consideration?