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[1995] HCA 26
High Court of Australia
1995-09-21
Brennan CJ, Gummow JJ, Toohey JJ
Original judgment source is linked above.
21 September 1995 Brennan CJ, Deane, Dawson and Toohey JJ.
The applicant, Bruno Grollo, commenced proceedings in the Federal Court of Australia claiming a declaration of invalidity of the provisions of the Telecommunications (Interception) Act 1979 Cth (the Act) and injunctive relief relating to the use which might be made of information allegedly acquired by intercepting telephone calls pursuant to a warrant issued under the challenged provisions of the Act. A case was stated for the consideration of the Full Court of the Federal Court stating for that Court's determination the question:
Are sections 6D and 6H and Divisions 3 & 4 of Part VI of the Act invalid as being beyond the power of the Parliament of the Commonwealth of Australia? The proceedings have been removed into this Court pursuant to s 40 of the Judiciary Act 1903 Cth. The question reserved by the stated case now falls for determination.
Section 7(1) of the Act prohibits the interception of a communication passing over a telecommunications system. A contravention of s 7(1) is an offence punishable by a fine or imprisonment: s 105(1) and (2). However, s 7(2)(b) excludes from the application of s 7(1) "the interception of a communication under a warrant". The issue of warrants by various authorities is provided for in Pts III, IV and VI of the Act.
Part III authorises the Commonwealth Attorney-General (s 9) and the Director-General of Security (s 10) to issue warrants for interception by the Australian Security Intelligence Organisation in respect of "activities prejudicial to security", a phrase defined in s 5. Part IV relates to the issue of warrants authorising the Australian Federal Police (the AFP) to intercept telegrams. Part VI relates to the issue of warrants authorising "an agency" [1] (that is, the AFP, the National Crime Authority or certain State authorities) to intercept telecommunications. Divisions 3 (ss 39-44) and 4 (ss 45-61A) of Pt VI relate respectively to applications for interception warrants and the issue of interception warrants.
Section 39(1) authorises an agency to apply to an "eligible Judge" for the issue of an interception warrant. The application must be in writing unless, because of urgent circumstances, it is made by telephone by the chief officer of the agency or a person authorised to make a telephone application (s 40). An application for an interception warrant may include a request for authority to enter on premises for the installation of necessary interception equipment (s 48). An application for an interception warrant must be supported by information provided either by affidavit or, in the case of a telephone application, orally or in writing as the judge directs (ss 42, 43). In the case of a telephone application, the information given to the judge must include particulars of the urgent circumstances warranting the making of the application by telephone (s 43). Section 45 provides 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
(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
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.
A "class 1 offence" is defined to include murder, kidnapping and serious drug offences [2] . Certain serious offences punishable by imprisonment for maximum periods of at least seven years are defined as class 2 offences (s 5). The issue of an interception warrant to assist in connection with an investigation into a class 2 offence is provided for by s 46. Its provisions correspond with those in s 45 except that the eligible judge to whom the application is made must have regard only to the matters referred to in s 46(2), namely: 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.
The reference to a "particular person" in ss 45 and 46 is expounded by s 6H, which provides: For the purposes of this Act, an application by an agency to a Judge for a warrant in respect of a telecommunications service relates to a particular person if, and only if, information has been, or is proposed to be, given to the Judge under Part VI, in connection with the application, in order to satisfy the Judge, in relation to the person, of the matters referred to in paragraphs 45(c) and (d) or 46(1)(c) and (d). 1. See definition of class 1 offence and narcotics offence in s 5.
The power to issue an interception warrant is thus conferred on a person who is, for the purposes of the Act, an "eligible Judge". That term is defined by s 6D:
(1) In this Act, unless the contrary intention appears: "eligible Judge" means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force; "Judge" means a person who is a Judge of a court created by the Parliament.
(2) A Judge may by writing consent to be nominated by the Minister under subsection (3).
(3) The Minister may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.
(4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
The practice followed in appointing judges of the Federal Court as eligible judges under s 6D is described in the special case. The Chief Justice of the Federal Court invites each newly appointed judge to consent to becoming an eligible judge. If the judge wishes to, the judge notifies his or her consent in writing to the Chief Justice who forwards this consent to the Attorney-General's Department. If the Attorney-General, as the Minister administering the Act, makes a declaration under s 6D(3), this is communicated to the Chief Justice and the judge concerned. As at 19 May 1994, thirty of the thirty-five judges of the Federal Court (excluding the Chief Justice) were eligible judges. Their identities as eligible judges are not disclosed to the public [3] . No extra remuneration is provided on account of being an eligible judge. The Act makes no provision for the revocation or cancellation of an appointment as an eligible judge. Presumably, upon ceasing to be a federal judge, the appointment lapses. 1. However, it appears in the Attorney-General's report (in compliance with Div 2 of Pt IX of the Act) for the year ended 30 June 1994, par 2.11, that the Chief Justice of the Family Court (who also holds a commission as a judge of the federal Court) is an eligible judge. He is the only judge holding a commission on that Court so nominated.
The common procedure in each State for obtaining an interception warrant is for an appointment to be made with an eligible judge in his or her chambers, and for the agency to attend with the application under s 39. In New South Wales, the appointment is arranged through the Deputy Executive Assistant of the Federal Court; in Queensland, Tasmania, Victoria and the Northern Territory, the appointment is arranged by the Court registry; in South Australia and Western Australia the appointment is arranged directly with the List Clerk or the Associate of an eligible judge. At no stage is the application or the warrant filed with the Court registry and, except in South Australia where a copy may be kept in security, all documents relating to the matter are retained or destroyed by the agency. Although not stated in the special case, s 50(2) requires the judge to keep a copy of a warrant granted on a telephone application.
The judge issues an interception warrant in the prescribed form (s 49(1)). The judge may "specify conditions or restrictions relating to interceptions" (s 49(2)) and may prescribe its operation for up to ninety days (s 49(3)). Upon expiration of the warrant, no extension is possible (s 46(4)). If required, a new warrant may be sought by an agency (s 46(5)). The warrant must also briefly state short particulars of each serious offence being investigated (s 46(7)).
Upon the issue of a warrant, certain notices must be given before the interception is authorised. First, where the interception is of a telecommunications system operated by a carrier, notice must be given to the Managing Director of the carrier and the interception must occur as a result of action taken by an employee of the carrier (ss 47, 60). Secondly, where the warrant is obtained by an agency other than the AFP, the warrant must be notified to and received by or on behalf of the AFP's Commissioner of Police (ss 53, 54). The authority conferred by an interception warrant may be exercised only by approved members of the AFP (s 55).
The grounds of challenge to the validity of the Act
The applicant's counsel based their submissions on alternative propositions as to the nature of the power to issue interception warrants and as to the repository of the power to do so. If the power be regarded as administrative in nature and eligible judges be regarded as personae designatae, the provisions of the Act purporting to confer the power on those judges are said to be invalid because the power is such that its exercise is incompatible with judicial functions. Alternatively, the provisions which permit the appointment of all Federal Court judges and which have in fact permitted the appointment of a substantial majority of the judges of that Court to be "eligible Judges" are said to be merely a device which, in substance, vests non-judicial power in the judges of that Court. That is said to be contrary to the Boilermakers [4] exposition of the constitutional imperative of the separation of powers.
If, however, the power to issue an interception warrant be regarded as judicial in nature, a further submission challenges the validity of the provisions which confer the power not on a Court but on eligible judges as personae designatae. The different, and inconsistent, strands of argument require a determination of two issues: first, whether the power to issue an interception warrant is judicial or non-judicial in nature; second, whether the Act purports to confer that power on eligible judges as personae designatae consistently with the Constitution.
The nature of the power to issue interception warrants
Historically, the power to issue warrants to enter, search and seize - that is, warrants which authorise what would otherwise be a trespass to land or to goods - has been vested only in judicial officers or justices of the peace.
At first, the common law conferred no authority on justices of the peace to issue warrants to enter and search for stolen goods [5] but an authority in justices to issue such warrants was ultimately admitted [6] . Although general warrants to search were illegal [7] , warrants to enter and search for stolen goods in particular premises were issued by justices of the peace on oath of a felony committed. Those warrants were considered to be "judicial acts" [8] although they were not performed in court [9] . As warrants were issued on sworn information, certiorari lay to review the sufficiency of the information to ground the issue of the warrant [10] . Under modern procedure, judicial review is available to determine whether there is sufficient material placed before the issuing justice to enliven the power to issue the warrant [11] . The power to issue a warrant to enter, search and seize must be exercised judicially [12] . But these indicia do not stamp the power to issue a search warrant with the character of the judicial power of the Commonwealth [13] . The issuing of a warrant can be described as a judicial act but not in the sense of an adjudication to determine the rights of parties [14] . Although judicial review is available to review an exercise of the power to issue a warrant, it is available whether the power be classified as judicial or as administrative in nature [15] . And although the duty to exercise the power to issue a warrant must be exercised judicially, that means only that the power must be exercised without bias and fairly weighing the competing considerations of privacy and private property on the one hand and law enforcement on the other [16] . In Love v Attorney-General (NSW), this Court held that the power conferred by a State law on the Supreme Court of New South Wales to issue a warrant authorising the use of a listening device was an administrative not a judicial power, though it was a power to be exercised judicially [17] . Nor was the act of exercising the power a judicial act in the sense of an adjudication to determine the rights of parties [18] . Love's Case was followed in Coco v The Queen [19] . In Hilton v Wells [20] , where a challenge was made to the validity of the vesting in judges of the Federal Court of the power to issue a warrant under s 20 of the Act (as it stood prior to the 1987 Amendment [21] ), it was common ground that the power is not part of the judicial power of the Commonwealth [22] . The submission that the power conferred by ss 45 and 46 is part of the judicial power of the Commonwealth should be rejected.
In Hilton v Wells, the only question for decision [23] was whether the Act purported to confer non-judicial power on the Federal Court contrary to the doctrine in the Boilermakers' Case [24] . The divergence of opinion on this question reflected a difference in the interpretations placed on the provisions of the Act as they stood before the 1987 Amendment [25] . The power to issue warrants under s 20 was vested in "a Judge", a term defined by s 18 (as it then stood) to mean a judge of the Federal Court or of the Supreme Court of the Australian Capital Territory, or a judge of the Supreme Court of a State or of the Northern Territory "in respect of whom an appropriate arrangement" was applicable. The majority (Gibbs CJ, Wilson and Dawson JJ) said [26] :
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. Their Honours considered that when the Act referred to judges of the Supreme Courts "in respect of whom an appropriate arrangement" had been made, the Parliament was intending to confer power on individual judges. In the case of judges of the Federal Court, the majority held it was "unlikely that the Parliament intended in other cases to refer to the judge as such and to confer power on the court". Further, as the nature of the power conferred by s 20 is "purely administrative and not incidental to the exercise of judicial power", their Honours thought it likely that Parliament intended the power to be exercised by a judge as a designated person. Finally, as the judge made no order as such and nothing that he did was enforced under the Federal Court of Australia Act 1976 Cth, the power was vested in a judge as persona designata. Mason and Deane JJ, on the other hand, were of the view that the Act vested power in the Federal Court judges as such. The power was conferred upon all judges of the Federal Court indiscriminately [27] . Mason and Deane JJ construed the Act in accordance with the principle on which the Court had acted in Medical Board (Vict) v Meyer [28] and Aston v Irvine [29] and held that the power was conferred on every judge as a member of the court. Their Honours accepted that a non-judicial power could be vested in a judge as a designated person but, in their Honours' view [30] - to enable such a conclusion to be reached it must appear that in the performance of the function entrusted to him the judge is intended to act personally, detached from the court of which he is a member (cf Queen Victoria Memorial Hospital v Thornton [31] ), so that the reference to the judge's judicial office is then seen not as a statement of the character in which the function is to be exercised, but as a qualification of his becoming a repository of the function. By repealing s 18 and inserting s 6D in 1987, the Parliament eliminated the indiscriminate conferral of power on all judges of the Federal Court and thereby sought to overcome a factor which Mason and Deane JJ had regarded as a source of invalidity. The 1987 Amendment also repealed s 20 and inserted in its place a number of provisions which conferred on an "eligible Judge" (as defined by s 6D) powers to issue warrants authorising, inter alia, interceptions of communications (ss 45, 46). Those powers are now expressed to be conferred not on all judges of the Federal Court but only on "a person who is" a judge of a court created by the Parliament (s 6D(1)) and who has consented to be nominated as an eligible judge (s 6D(2)) and who has been declared by the Minister to be an eligible judge (s 6D(3)). The Act as it now stands, in comparison with the Act as it stood when considered in Hilton v Wells, contains even clearer indicia showing that the power to issue interception warrants is conferred on judges as designated persons and not on the courts of which eligible judges are members. In Jones v The Commonwealth [32] , this Court refused to reconsider its decision in Hilton v Wells, saying: The power to overrule a previous decision should be exercised with great caution. Continuity and coherence in the law demand that in this Court the principle of stare decisis should ordinarily be applied. Moreover Hilton v Wells is a very recent decision. Jones v The Commonwealth related to the Act as it stood before the 1987 Amendment. 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". 1. See Hilton (1985) 157 CLR 57 at 69, 78. 2. (1956) 94 CLR 254; (1957) 95 CLR 529; [1957] AC 288. 3. Jones v The Commonwealth (1987) 61 ALJR 348 at 349; 71 ALR 497 at 498-499. 4. Hilton (1985) 157 CLR 57 at 72-73. 5. Hilton v Wells (1985) 157 CLR 57 at 81. 6. (1937) 58 CLR 62 at 97. 7. (1955) 92 CLR 353 at 366. 8. Hilton (1985) 157 CLR 57 at 80-81. And see R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 566-567; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413; 24 ALR 577 at 583-584. 9. (1953) 87 CLR 144 at 152. 10. (1987) 61 ALJR 348 at 349; 71 ALR 497 at 498.
In Hilton v Wells, Mason and Deane JJ observed [33] :
The ability of Parliament to confer non-judicial power on a judge of a Ch III court, as distinct from the court to which he belongs, has the potential, if it is not kept within precise limits, to undermine the doctrine in the Boilermakers' Case [34] . The applicant submits that the important principle of separation of powers expounded in Boilermakers should not be undermined by acceptance of the power of the legislative or the executive branches of government to repose non-judicial power in individual judges when that power cannot be reposed in the courts they constitute. The distinction which the conception of persona designata draws between judges and the courts to which they are appointed is said to be too fine [35] and specious [36] to be supported. The distinction (so the argument runs) is formal not substantial and it is apt to convert the principle of separation of powers into a mockery [37] . In practice, the system of "eligible Judges" has resulted in the conferring of power to issue warrants on thirty of the thirty-five judges of the Federal Court; the warrants are signed by the judge as to indicate the judge's judicial status and the judges have, in respect of that function, a statutory immunity [38] which is "the same protection and immunity as a Justice of the High Court in relation to proceedings in the High Court". The conception of persona designata is said to serve as a charade concealing the reality that a non-judicial power has been conferred on the judges of a Ch III court. It is submitted that the conception of persona designata should be abolished to maintain the integrity of the Boilermakers principle. In Canada, Laskin CJ [39] expressed agreement with the proposition that "the whole persona designata conception could be scrapped without the slightest inconvenience or the least distortion of legal principles". 1. Hilton (1985) 157 CLR 57 at 81. 2. (1956) 94 CLR 254; (1957) 95 CLR 529; [1957] AC 288. 3. Hilton v Wells (1985) 157 CLR 57 at 69. 4. Local 170 v Gadola (1948) 34 NW 2d 71 at 78. 5. See Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 607. 6. s 6D(4) inserted by s 8 of the Crimes Legislation Amendment Act 1988 Cth. Other authorities vested with power to issue warrants under ss 9 and 10 do not have the same immunity as eligible judges. 7. Herman v Deputy Attorney-General (Can) (1978) 91 DLR (3d) 3 at 4-5.
The submission that this Court should follow that lead must be rejected. The conception of persona designata has been invoked when the vesting of a non-judicial power, which could not be vested in a court consistently with Ch III of the Constitution, has been supported as a vesting of the power in individual judges detached from the courts they constitute [40] . But the conception of "persona designata" is not always invoked in the same sense. Sometimes it is invoked as an aid to, or a descriptive expression in, statutory interpretation, connoting an individual judge detached from the court to which the judge is appointed. It is in this sense that the term is used when the question is whether the legislature has intended to vest the power in the court or in individual judges detached from the court. It was in that sense that the term was relevant to the question for determination in Hilton v Wells [41] and it was in that sense that the usefulness of the term was disparaged by Laskin CJ. Sometimes the term is invoked as a shorthand expression of a limitation on the principle of Boilermakers , acknowledging that there is no necessary inconsistency with the separation of powers mandated by Ch III of the Constitution if non-judicial power is vested in individual judges detached from the court they constitute. It is in the latter sense that the term falls for consideration in this case. It was in reference to such a constitutional principle that Mason and Deane JJ in Hilton v Wells [42] quoted Chief Judge Cardozo speaking of the separation of powers under the Constitution of the State of New York in In re Richardson [43] :
From the beginnings of our history, the principle has been enforced that there is no inherent power in Executive or Legislature to charge the judiciary with administrative functions except when reasonably incidental to the fulfilment of judicial duties The exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers. Elasticity has not meant that what is of the essence of the judicial function may be destroyed. 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 [44] : In the United States, as in Australia, it has been recognised 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 [45] . 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. The majority judgment contains a passage [46] to the same effect: If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers' Case would doubtless render the legislation invalid. But the exercise of the functions conferred by s 20 would not have that result. The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers. 1. Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 152; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-415; 24 ALR 577 at 583-585; Hilton v Wells (1985) 157 CLR 57 at 68, 77-78; and see Holmes v Angwin (1906) 4 CLR 297 at 304-305; Webb v Hanlon (1939) 61 CLR 313 at 319, 324, 328, 330, 334. 2. See Jones v The Commonwealth (1987) 61 ALJR 348 at 349; 71 ALR 497 at 498. 3. (1985) 157 CLR 57 at 82. 4. (1928) 160 NE 655 at 657. 5. Hilton (1985) 157 CLR 57 at 83. 6. In re Richardson (1928) 160 NE 655 at 659. 7. Hilton (1985) 157 CLR 57 at 73-74.
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"). These conditions accord with the view of the Supreme Court of the United States in Mistretta v United States [47] where the Court said:
This is not to suggest, of course, that every kind of extrajudicial service under every circumstance necessarily accords with the Constitution. That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial, capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch. 1. (1989) 488 US 361 at 404.
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.
The applicant submits that judicial integrity is compromised and public confidence in the exercise of the jurisdiction of the Federal Court is prejudiced by the conferral of power on judges of the Federal Court to issue interception warrants. First, it is said that an obligation - either statutory [48] or common law [49] - not to disclose the information on which the judge may have decided to issue an interception warrant compromises the judge's duty to exercise the jurisdiction of the Court [50] . If a judge cannot reveal the information which was given to him or her on an application for the issue of an interception warrant and the judge is subsequently asked to exercise jurisdiction in a matter arising from the issue of the warrant or relating to the information given extra-curially, no disclosure can be made to the parties of the judge's prior involvement in, or knowledge of, the matter. Bias might be apprehended in any case in which the validity of an interception warrant is in issue by reason of the large proportion of Federal Court judges who are eligible judges and who, if not involved in the issue of the warrant in the particular case, would have formed a view about the manner in which the power to issue an interception warrant should be exercised. These arguments are "troubling" but, as with the courts in the United States [51] , the argument can be met by the adoption of an appropriate practice. A judge who has issued a warrant in a particular matter can ensure that he or she does not sit on any case to which the warrant relates. That is the practice followed when a judge has received information extra-curially which might prove embarrassing to the impartial hearing and determination of a case. Of course, the risk of such a situation arising and, in particular, of a judge discovering late in the day that he or she had issued a warrant on the basis of which evidence is to be tendered, is increased when there are but few judges appointed to a Court. In the Australian Capital Territory, for example, it would be prudent for a resident judge of the Supreme Court of the Australian Capital Territory not to accept an appointment. But that is a matter for individual judges. However, as in Mistretta [52] :
We are somewhat more troubled by [the] argument that the Judiciary's entanglement in the political work of the Commission undermines public confidence in the disinterestedness of the Judicial Branch The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action. 1. Crimes Act 1914 Cth, ss 70, 79. 2. Johns v Australian Securities Commission (1993) 178 CLR 408 at 424; cf Attorney-General (Nova Scotia) v MacIntyre (1982) 132 DLR (3d) 385 at 397-398, 400-405. 3. Ashby v White (1703) 2 Ld Raym 938 at 956 [92 ER 126 at 137-138]; Browne v Commissioner for Railways (1935) 36 SR(NSW) 21 at 28-29. 4. In the Matter of the President's Commission on Organized Crime (1986) 783 F 2d 370 at 381; Mistretta v United States (1989) 488 US 361 at 407. 5. (1989) 488 US 361 at 407.
If the issuing of interception warrants were reasonably to be regarded as a judicial participation in criminal investigation, it would be a function which could not be conferred on a judge without compromising the judiciary's essential separation from the executive government. The judicial method of deciding questions in controversy has no application in exercising the power to issue an interception warrant. Not only is the application for an interception warrant made ex parte; the very issue of a warrant and the identity of the judge who issued it are not disclosed. Unlike a warrant to enter, search and seize, its execution may go undetected by the person against whom or against whose interests the warrant is executed. Unlike a warrant to enter, search and seize, there is no return made on the execution of the warrant which permits a determination of its lawfulness, a review of its due execution and a disposition of the fruit of the execution. Because of the secrecy necessarily involved in applying for and obtaining the issue of an interception warrant, no records are kept which would permit judicial review of a judge's decision to issue a warrant [53] . Nor are reasons given for such a decision. The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information. Understandably a view might be taken that this is no business for a judge to be involved in [54] , much less the large majority of the judges of the Federal Court.
Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today's continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law's protection of privacy [55] and property (both real and personal), be authorised to control the official interception of communications. 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. In such cases, the European Court of Human Rights said in Klass v Federal Republic of Germany [56] :
The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge. In the United States, the Fourth Amendment protection "against unreasonable searches and seizures" has been held to require prior judicial warrant authorising electronic surveillance [57] . In United States v United States District Court for the Eastern District of Michigan [58] , the Court said: The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. The Court used the word "judicial" "to connote the traditional Fourth Amendment requirement of a neutral and detached magistrate". 1. (1978) 2 EHRR 214 at 235. 2. Katz v United States (1967) 389 US 347 at 358-359; United States v United States District Court for the Eastern District of Michigan (1972) 407 US 297 at 317. 3. (1972) 407 US 297 at 317.
In Canada, Estey J referred to "the vitality of the role of the court in the legislative plan as the guardian of the public interest" when discussing the legislation which authorised interception of communications [59] . The statute law of New Zealand provides for judicial warrants for the interception of private communications [60] . So do the laws of most of the Australian States and Territories [61] . The function conferred on judges of the Federal Court under the Act, being similar in nature to the function conferred on judges of the Federal Court under the Act prior to the 1987 Amendment, "is not incompatible with their status and independence or inconsistent with the exercise of their judicial power". Nor is their present function inconsistent with the maintenance of public confidence in the discharge by the judiciary of its responsibilities in the exercise of the judicial power of the Commonwealth.
Clearly views may differ as to the desirability of judges being involved in the issue of interception warrants. But the issue before the Court is one of the validity of legislation. Relevantly, the legislation is not invalid unless what we have referred to as the incompatibility condition precludes the vesting of the power to issue interception warrants. For the reasons given earlier, that is not the case. The challenged provisions of the Act are valid and the question reserved by the case stated should therefore be answered: No.
The proceedings No VG386 of 1993 that were removed from the Federal Court into this Court should now be remitted to the Federal Court to hear and determine those proceedings in accordance with the answer to the question reserved given in this judgment.
The question in this case stated is whether those provisions of the Telecommunications (Interception) Act 1979 Cth (the Act) that empower persons who are judges of federal courts to issue warrants authorising the interception of telephone communications are contrary to the Constitution and invalid.
In my opinion, in so far as the powers granted by those provisions authorise persons who are judges of federal courts to issue warrants, they are contrary to the Constitution and invalid. The reason is that the exercise of administrative power that is involved in authorising the issue of those warrants is incompatible with the exercise of the judicial functions vested in persons who are judges of a federal court.
Since about June 1992, members of the Australian Federal Police (the AFP) have carried out investigations into alleged criminal offences by the applicant. On or about 2 June 1993, a member or members of the AFP applied under s 39 of the Act for a warrant authorising the interception of a mobile telephone service registered in the name of A D Flanagan. Heerey J, a judge of the Federal Court of Australia who was an "eligible Judge" within the meaning of the Act, heard the application. His Honour authorised the issue of a warrant. On a number of occasions between June and August 1993, conversations made over the service were intercepted and recorded. They included conversations involving the applicant.
In August 1993, members of the AFP arrested and charged the applicant with a number of offences against the Crimes Act 1914 Cth. Subsequently, his solicitors sought copies of the telephone interception warrants from the third respondent, the Commonwealth Director of Public Prosecutions. The Director refused to supply copies. Later, the applicant commenced proceedings in this Court, which were remitted to the Federal Court, seeking, inter alia, a declaration that the provisions of the Act giving power to a judge of the Federal Court to authorise the issue of interception warrants were unconstitutional and ultra vires.
Ultimately, the applicant obtained copies of the warrants and details of the relevant telephone interceptions in the course of committal proceedings brought against him for alleged breaches of the Crimes Act. These and other documents form part of a special case stated by Jenkinson J to a Full Court of the Federal Court on 23 August 1994. The question to be answered in the stated case is:
Are sections 6D and 6H and Divisions 3 & 4 of Part VI of the Act invalid as being beyond the power of the Parliament of the Commonwealth of Australia?
On 16 September 1994, this Court ordered the removal of the Federal Court proceedings, including the special case, into the High Court.
Section 7 of the Act prohibits the interception of communications passing over a telecommunications system. Excluded from this prohibition is the interception of communications pursuant to a warrant. Relevant to these proceedings is an exclusion that allows the issuing of warrants to members of the AFP, the National Crime Authority and certain State agencies. For the purposes of the Act, each of these bodies is referred to as an "agency". An application for a warrant is made to "an eligible Judge" (s 39). Section 6D defines "eligible Judge" as follows:
6D(1) In this Act, unless the contrary intention appears:
"eligible Judge" means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force;
"Judge" means a person who is a Judge of a court created by the Parliament.
(2) A Judge may by writing consent to be nominated by the Minister under subsection (3).
(3) The Minister may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.
(4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
An agency may apply in writing or, in certain circumstances, by telephone for a warrant (s 40). If the application is in writing, it must be accompanied by an affidavit, the contents of which are prescribed by s 42. The eligible judge may require the applicant for a warrant to provide further information (s 44).
Sections 45 and 46 provide the framework for making a decision upon an application for a warrant. They enact:
(a) Division 3 [which relates to the making of applications] 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
(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.
(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.
Section 5 defines class 1 offences to include offences such as murder, kidnapping or narcotic offences. Class 2 offences involve offences punishable by at least seven years imprisonment where the offence involves loss of life or a serious risk of loss of life, serious personal injury, serious damage to property endangering the safety of a person, trafficking in narcotic drugs, serious fraud or serious loss to the revenue of the Commonwealth or a State.
The relevant terms of the Act are the result of amendments made in 1987 [62] after the decision of this Court in Hilton v Wells [63] where the Court held that the then s 20 of the Act was not beyond power of the Parliament of the Commonwealth of Australia. Section 20 was the equivalent of the current ss 39-46 and concerned applications to a judge for an interception warrant. Under the pre-amendment scheme, an application could be made to any judge of the Federal Court. The 1987 amendments altered that position. Under the Act, a judge must now consent to being nominated as an "eligible Judge" by the Attorney-General. If the judge does so, the Attorney-General may declare that he or she is so nominated. As at 19 May 1994, thirty of the thirty-five judges of the Federal Court had consented to be, and had been, nominated as eligible judges.
The reasons for the 1987 amendments are apparent from concerns expressed in the judgments in Hilton v Wells. The principal issue in that case was whether the reference to "a Judge of the Federal Court of Australia" in the Act was to a judge qua judge or to a judge as persona designata. In Hilton [64] , the applicant submitted that "[t]he doctrine of persona designata cannot apply where a statutory power is added to the powers belonging to a judge and is made exercisable by virtue of the very character as a judge". Gibbs CJ, Wilson and Dawson JJ held that s 20 was valid.
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. 1. Hilton (1985) 157 CLR 57 at 72-73.
Mason and Deane JJ, however, held that established principle required a clear expression of legislative intention before a court would hold that functions entrusted to a judge of the Federal Court were exercisable as persona designata. In their Honours' view, to hold otherwise would undermine the principle of the Boilermakers' Case [66] . They thought that there was "much to be said for the view" that even, without the decision in the Boilermakers' Case, the underlying concept of the separation of powers doctrine - "a safeguard of individual liberty" [67] - supported the need for a clear legislative intention before a Court would hold that functions entrusted to a judge of a federal court were to be exercised as persona designata [68] . Their Honours commented [69] :
To the intelligent observer, unversed in what Dixon J accurately described - and emphatically rejected - as "distinctions without differences" [70] , it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade. 1. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 and in the Privy Council (1957) 95 CLR 529. 2. R v Davison (1954) 90 CLR 353 at 381. 3. Hilton v Wells (1985) 157 CLR 57 at 81-82. 4. Hilton v Wells (1985) 157 CLR 57 at 84. 5. Medical Board (Vict) v Meyer (1937) 58 CLR 62 at 97.
The factors that led their Honours to the view that the function was conferred on the judges not as personae designatae but as judges of the Federal Court were: (1) the Act referred to the person as "a Judge"; (2) there was no indication that the judge undertook the function personally; (3) the function was quasi-judicial in nature in that similar functions had been traditionally carried out by magistrates; (4) nothing in the Act required the prior consent of a judge of the Federal Court to the imposition on him or her of the administrative function, it being treated as "an unavoidable concomitant of judicial office".
Mason and Deane JJ felt unable to hold that s 20 was valid, but they refrained from answering the case stated in the absence of argument on the Commonwealth Solicitor-General's "proposed submission that the Court should reconsider the Boilermakers' Case" [71] .
Although the Court held that s 20 was valid, the amendments to the Act in 1987 responded to some of the concerns of the minority in Hilton v Wells. The explanatory memorandum accompanying the amendments made it clear [72] that the legislative purpose in inserting s 6D and creating the process for appointment of "eligible Judges" by the Attorney-General was to:
avoid any possible argument that the power given to eligible judges to issue interception warrants is invalid because it amounts to the conferral of a non-judicial power on a court. The matter was considered by the High Court in Hilton v Wells [73] , where a majority held that there is no necessary constitutional impediment preventing the Parliament from conferring non-judicial power on a particular individual who happened to be a member of a court. Proposed s 6D makes it clear that the power to issue warrants is conferred on individual persons or classes of persons declared by the Minister who happen to be judges of a court created by the Parliament. 1. Telecommunications (Interception) Amendment Bill 1987, Explanatory Memorandum, par 15. 2. (1985) 58 ALR 245.
If the Parliament's intention is correctly expressed in this statement from the explanatory memorandum, that intention has not been explicitly carried into effect. Nowhere, for example, does the Act explicitly state that a person who is a judge is appointed in his or her personal capacity or that being a judge is merely the qualification for holding the separate office described by the Act [74] . Nevertheless, the language of the statute does inferentially show that Parliament's intention was to confer the power to authorise the issue of telephone interception warrants upon an "eligible Judge" as persona designata and not as a judge of a federal court. Matters that support this conclusion are the definition of Judge in s 6D as " a person who is a Judge of a court created by the Parliament"; the consent and nomination process in s 6D; and the granting of immunity to eligible judges by s 6D(4) which suggests that the immunity of Federal Court judges would not otherwise apply to the granting of warrants [75] .
The incompatibility qualification on the persona designata doctrine
In Hilton v Wells [76] , the Court accepted that the power to issue warrants is an administrative power and not a judicial one, a view that accords with previous and subsequent authority [77] . Both the majority and minority judgments in Hilton v Wells also accepted that the administrative power to authorise the issue of warrants may be conferred on a person who is a federal judge as persona designata. Nevertheless, both judgments recognised that the power to confer functions on a judge as persona designata is not unlimited. Gibbs CJ, Wilson and Dawson JJ said [78] :
It was submitted by Mr Ellicott that the separation of judicial and administrative power is not merely a matter of verbal formulae and that is, of course, correct. If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers' Case would doubtless render the legislation invalid. But the exercise of the functions conferred by s 20 would not have that result. The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers. Similarly, Mason and Deane JJ said [79] : [I]t has been recognised 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 [80] . 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. 1. (1985) 157 CLR 57 at 67, 78. 2. Aston v Irvine (1955) 92 CLR 353 at 363; Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 at 39; Baker v Campbell (1983) 153 CLR 52 at 92; Love v Attorney-General (NSW) (1990) 169 CLR 307 at 322; Coco v The Queen (1994) 179 CLR 427 at 444; Brewer v Castles (1984) 1 FCR 55 at 59. 3. Hilton v Wells (1985) 157 CLR 57 at 73-74. 4. Hilton v Wells (1985) 157 CLR 57 at 83. 5. In re Richardson (1928) 160 NE 655 at 659.
However, no argument was addressed to the Court in Hilton v Wells as to whether the persona designata doctrine is subject to an incompatibility qualification or whether the legislation was compatible with the exercise of the judicial functions vested in the judges of a federal court [81] . Hilton v Wells, therefore, does not decide whether the persona designata doctrine is subject to an incompatibility qualification or whether the provisions of the Act vest functions in a person who is a judge of a federal court which are incompatible with the judicial functions of that person. In Jones v The Commonwealth [82] , Gaudron J [83] noted that the incompatibility issue was not argued in Hilton v Wells and expressed the view that, if the leave of this Court was needed to re-open Hilton v Wells, she would have granted it. In my view, however, no leave is needed to challenge the validity of the provisions which the applicant challenges in these proceedings.
Clearly, a tension exists between complying with the principle of the separation of powers and vesting powers in federal judges as persona designata. If the separation of powers doctrine is to continue effectively as one of the bulwarks of liberty enacted by the Constitution, the incompatibility qualification on the persona designata doctrine is a necessity. Without that qualification, it would permit the Parliament "to sap and undermine" the separation of legislative, executive and judicial powers that is inferentially expressed by ss 1, 61 and 71 of the Constitution and which was rigorously applied by this Court and the Judicial Committee of the Privy Council in the Boilermakers' Case. The constitutional wall that separates the exercise of judicial power and the exercise of executive power would be effectively breached if a federal judge could exercise any executive power invested in him or her as persona designata. If, therefore, the non-judicial functions of a federal judge threaten the ability of the judge to perform his or her judicial functions or if those non-judicial functions are of such a nature that public confidence in the independence or impartiality of a federal judge to carry out judicial functions is threatened, those non-judicial functions undermine the doctrine of separation of powers and are incompatible with the office of a federal judge.
In determining whether incompatibility exists, the appearance of independence and impartiality is as important as its existence. It is trite to say that justice must not only be done but must be manifestly seen to be done. One of the usual reasons for investing executive power in a judge as persona designata is that it gives the exercise of executive power the appearance of independence and impartiality that is always associated with the exercise of judicial power. That independence and impartiality is only possible, however, because of the institutional separation between executive and judicial functions. When a person who holds judicial office contemporaneously exercises executive power as persona designata, members of the public may have great difficulty in seeing any separation of those functions. The greater the association between the judicial status of the persona designata and the executive functions that he or she performs, the greater is the likelihood that the judicial and non-judicial functions of that person will seem to be fused. In that situation, it is likely that members of the public will fail to distinguish between the judicial functions of the judge and the executive functions of that person as persona designata and will conclude that the judge is neither independent of the executive government nor impartial when dealing with actions between the citizen and the government and its agencies.
The persona designata exception to the Boilermakers' principle must therefore give way when the exercise of non-judicial functions impairs a federal judge's ability to perform judicial functions or when it would give rise to a reasonable doubt as to the independence or impartiality of a federal judge. In either case, Parliament cannot constitutionally invest executive power in a federal judge as persona designata. As the Supreme Court of the United States pointed out in Mistretta v United States [84] :
The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action. If, therefore, reasonable people, not trained to discover "distinctions without differences" [85] , might reasonably apprehend that the functions undertaken by a judge as persona designata impaired his or her ability to carry out judicial functions or conflicted with the judge's independence or impartiality, those non-judicial functions cannot constitutionally be invested in a person who is a member of a federal court. Furthermore, since the Constitution requires that the exercise of judicial power be separated from the exercise of executive power, those who assert the compatibility of the non-judicial and judicial functions of a person who holds office as a federal judge have the burden of proving that those functions are compatible. 1. (1989) 488 US 361 at 407. 2. See Meyer (1937) 58 CLR 62 at 97.
The question in this case therefore is whether investing persons who are judges of the Federal Court with the power to authorise the issue of warrants is incompatible with the exercise of the judicial functions of judges of that court. In my opinion, the functions undertaken by Federal Court judges acting as persona designata in accordance with the Act are of such a nature and are exercised in such a manner that public confidence in the ability of the judges to perform their judicial functions in an independent and impartial manner is likely to be jeopardised. That being so, the power to authorise the issue of interception warrants is incompatible with the exercise of the functions of a judge of a federal court.
The applicant does not assert that, as a result of their duties under the Act as personae designatae, the judges of the Federal Court in fact lack independence or would be unable to perform their duties impartially. But the independence and impartiality of those judges is not an answer to the applicant's case. The question is not whether the impartiality and independence of federal judges make them appropriate persons to authorise the issue of telephone interception warrants. The question is whether, in the light of the separation of powers mandated by the Constitution, the functions that an "eligible Judge" performs under the Act are functions that are compatible with the exercise of federal judicial power by those judges.
In my opinion, two components of the persona designata scheme render the provisions of the Act incompatible with the concurrent exercise of federal judicial power. They are the nature of the power and the manner in which it is exercised. The power exercised by the persona designata authorises the invasion of the privacy of ordinary citizens for the purposes of a criminal investigation. It involves the approval of police activity. It authorises AFP and National Crime Authority officers and officers of State agencies to undertake what would otherwise be an unlawful invasion of privacy in relation to persons presumed to be innocent of the "offence" being investigated. Under a Constitution predicated on the separation of judicial power from legislative and executive power, any involvement by a person holding judicial office in the exercise of invasive power by members of the executive government or its agents is difficult to reconcile with the Constitution's requirement that federal judicial power is to be invested in those that are independent of the legislature and the executive.
However, it is the manner in which this invasive power is authorised that provides the strongest reason for concluding that the executive power invested in "eligible Judges" is incompatible with the routine exercise of federal judicial functions by those persons. Under the Act, approval of a warrant is not dependent upon compliance with objective conditions precisely formulated. The persona designata is given a discretion to approve or disapprove the issue of the warrant, and the grounds to be considered are very general. Essentially, the legislation puts the persona designata in the uniform of the constable. Section 45 dealing with class 1 offences requires the persona designata to consider the extent that information obtained from the intercept "would be likely to assist in connection with the investigation" having regard to the extent that other methods have been used by or are available to the agency and would be likely to obtain the information sought. Section 46 imposes similar obligations on the persona designata in relation to class 2 offences. The matters that must be considered are the very matters that would be considered by a conscientious Patrol Commander asked to authorise a telephone intercept. The result is that, whenever the issue of the warrant is approved, the persona designata becomes open to the criticism that he or she has preferred the interests of the investigative agency to the privacy and interests of the persons whose communications are to be intercepted - the ordinary citizens whose liberty and interests the separation of powers is designed to protect.
Moreover, the authorisation is necessarily carried out ex parte and in secret. Before the warrant is issued, no notice is given to the person whose communications are intercepted. The procedure varies from State to State. But in some States applicants approach eligible judges directly, in other States court staff direct an applicant for a warrant to an eligible judge. Which judges are eligible judges is not published or disclosed to the public. Unless the communications are tendered in evidence in subsequent proceedings, a person whose privacy has been infringed will never know what has occurred. Only by accident is that person likely to learn who was the federal judge who authorised the warrant. The judges never retain the original documentation filed in support of the application; in most cases they do not even retain a copy of the accompanying documentation. The hearing and determination of applications takes place in the judges' chambers within the Federal Court during normal court hours. Yet no records are kept by the court registries of applications; no reasons are given for issuing a warrant. Although s 50(2) requires an "eligible Judge" to keep a copy of the warrant issued in response to a telephone application, judicial review of the decision to issue a warrant is practically impossible.
Open justice is the hallmark of the common law system of justice and is an essential characteristic of the exercise of federal judicial power. Participation in secret, ex parte administrative procedures that approve the acts of federal law enforcement officers by those who hold federal judicial office contravenes the spirit of the requirement that justice in the federal courts should be open [86] ; it weakens the perception that the federal courts are independent of the federal government and its agencies. Much of the litigation in the Federal Court is between the ordinary citizen and the federal government and its agencies. The maintenance of public confidence in the independence and impartiality of the Federal Court judges in hearing disputes between the citizen and the government and its agencies is contingent upon the public perception that the judges of the federal courts are impartial and entirely independent of the executive arm of government. That public perception must be diminished when the judges of the Federal Court are involved in secret, ex parte administrative procedures, forming part of the criminal investigative process, that are carried out as a routine part of their daily work.
But even more importantly, the hearing of applications for warrants by eligible judges is likely to give rise to direct conflicts with their judicial functions. Proceedings may come before the Court, as they have in this case, directly or indirectly involving the subjects of the telephone interception warrants authorised by a judge of the Federal Court [87] . Highly prejudicial information in relation to a person may have been secretly provided to the judge, information upon which the judge may have relied in authorising the issue of the warrant. Because the applications and the identity of judges are secret, the parties to proceedings are not aware that the judge is in possession of information that is prejudicial to one of them; the affected party is unable to ask the judge to disqualify him or herself on the grounds of apprehended bias [88] . What is worse is that arguably the judge cannot reveal the information to them without breaching a statutory obligation of secrecy that was imposed on him or her when, as persona designata, the judge approved the issue of the warrant.
Beyond question, the Act imposes a duty on a persona designata to keep confidential all information obtained in the course of determining an application under the Act. Although the Act does not expressly prohibit the persona designata from disclosing such information, the only rational conclusion that can be drawn from the nature of the legislation is that that person, upon receiving such information, comes under a duty not to disclose it [89] . Moreover, s 70 of the Crimes Act prevents a Commonwealth officer from communicating any fact which comes to his knowledge as a result of being a Commonwealth officer and which he is under a duty not to disclose. An "eligible Judge" acting under the Act is a Commonwealth officer for the purpose of s 70. Thus, when an "eligible Judge" sheds the role of persona designata and takes on the role of judicial officer, a conflict may arise between the duty imposed on that person as persona designata and the discharge of his or her judicial functions.
Whether or not a judge has a duty to disclose every fact that arguably may disqualify him or her from hearing a case, most, if not all, judges would think it desirable to bring the fact to the attention of the parties. It may be that constitutionally neither the Act nor s 70 of the Crimes Act can prevent a judge, exercising federal judicial power, from disclosing to the parties any information that might found an application that the judge disqualify him or herself for apprehended bias. But it is unnecessary to decide that question. If the judge is entitled to disclose the information, the intended secrecy of the Act is breached. On that hypothesis, the duty of secrecy imposed by the Act is in conflict with the exercise of federal judicial power. The obligation of the persona designata is incompatible with the judicial functions of that person. If, on the other hand, the Act or s 70 of the Crimes Act or both can constitutionally prevent the judge qua judge from disclosing information obtained as persona designata, the capacity of the judge to exercise federal judicial power is hindered. On that hypothesis, the investing of the executive power in the "eligible Judge" is incompatible with that person's judicial functions.
Moreover, the obligation of secrecy has other adverse consequences for the general administration of justice in the Federal Court. Thus, a judge would be prevented, when asking that the matter be listed before another judge, from disclosing the reasons for making that request. In addition, it might not be readily apparent to a judge who embarked on hearing a case that there would be a conflict between his or her judicial and non-judicial functions. Only during the course of the proceedings might the judge perceive the need to disqualify him or herself. If the need for disqualification only became apparent after the commencement of the hearing, the judge would be precluded from disclosing his or her knowledge of prejudicial information to the parties in order to determine whether or not they objected to the judge continuing to hear the case. The only option for the judge would be to disqualify him or herself without reasons. Public confidence in the federal judiciary cannot be enhanced and must inevitably be shaken by the spectacle of judges of the Federal Court suddenly and without reasons discharging themselves from hearing a case after the hearing has commenced.
The increasing number of applications for warrants that are being made simply reinforces the conclusion that this persona designata jurisdiction is incompatible with the exercise of judicial functions by members of the Federal Court. The number of warrants issued annually increased from 246 in the 1988/89 year to 668 in the 1993/94 year. Of the 2,639 applications made between 1988/89 and 1993/94 only thirteen have been refused or withdrawn [90] . The increase in the use of warrants indicates the increase in the involvement of judges in these executive activities. Slowly but surely, persons who hold office as judges of the Federal Court are becoming an important part of the criminal investigative process.
Not only are the nature and mode of performance of the functions of issuing warrants likely to impact upon public confidence in the independence and impartiality of judges of the Federal Court, but the terms of the Act reinforce that impression. Although the Act gives power to the judges of a federal court as persona designata, it seeks to clothe the function of authorising warrants with as much judicial status as possible. The references in the Act are to an "eligible Judge" or simply to a "Judge". It appears that the legislative intention is to associate the judicial status of the judge as closely as possible with the process of issuing interception warrants without actually conferring the power on the judge as a judge. Even sophisticated readers of the Act will readily, perhaps inevitably, fail to see the distinction which the Act draws between a federal judge and the person who holds that office [91] . It is this combination of inconsistent aims that led Mason and Deane JJ in Hilton v Wells [92] to characterise the formal investiture of warrant-issuing powers in the judges as individuals rather than as judges as an "elaborate charade". This close association of judicial and non-judicial functions makes it likely that the general public will conclude that the federal judiciary is involved in secretly approving police investigative and invasive procedures.
By itself, the secrecy obligation that the Act imposes upon the "eligible Judge" seems enough to render the non-judicial functions carried out under the Act incompatible with that person's judicial functions. But in any event the cumulative effect of the various features of the Act to which I have referred renders the role of judges as persona designata incompatible with the concurrent exercise of federal judicial power.
The functions involved under the Act cannot be compared with those involved in other offices that judges hold as persona designata. For example, judges of the Federal Court sit as presidential members on the Administrative Appeals Tribunal and as President of the Australian Industrial Relations Commission. But the functions of these bodies involve open processes in which parties the subject of the orders are represented. They are quasi-judicial tribunals. Furthermore, the judge sits in a different tribunal and has a separate position. Thus, in the Administrative Appeals Tribunal a judge may sit as President or Deputy President, and it is clear that the judge performs his or her functions as President or Deputy President and not as a judge [93] . The position of the President of the Industrial Relations Commission is similar [94] . Consequently, although the functions performed in these offices by persons who are federal judges are not judicial, those functions do not fall beyond the limits of the persona designata exception.
The functions of an "eligible Judge" approving warrants for telephone interceptions under the Act also cannot be compared with the functions of judges and magistrates authorising the issue of search warrants. A search warrant is usually brought to the attention of the person to whom it is directed, it is usually executed in the presence of that person, and its issue is readily challengeable by the prerogative writs or judicial review procedures. But even more importantly, its issue does not involve the judge or magistrate in the investigative process to anything like the extent to which the Act involves the "eligible Judge". Under most statutes authorising the issue of search warrants, the judicial officer is empowered to issue the warrant simply upon proof that there are reasonable grounds for suspecting that in some place there is something that may afford evidence as to the commission of an offence. The judicial officer is not required to consider matters of the kind referred to in ss 45 and 46 of the Act.
Telephone interception with its attendant invasion of the privacy of the citizen is regrettably an essential tool of law enforcement officers if they are to combat the evil of organised crime. Because telephone interceptions necessarily involve infringements of the right to privacy, the national Parliament has regarded it as essential that the interceptions only take place with the approval of some person or tribunal independent of the criminal investigative agencies that are authorised to intercept telephone conversations. Persons who hold office as judges of the federal courts are unquestionably well suited to carry out such a role under the Act. The sense of public duty that is characteristic of those judges has resulted in over 85 per cent of the judges of the Federal Court becoming "eligible Judges" to perform the non-judicial work that the national Parliament has inferentially asked them to perform. But many other persons and tribunals, the law officers of the Commonwealth and retired judges among them, are also well fitted to carry out the functions that the Act purports to vest in eligible judges. Under the Constitution, it is to those persons and tribunals and not to the federal judges that the Parliament must turn if independent approval is to remain a condition of telephone interception permitted by the Act. Authorisation by federal judges is incompatible with the separation of executive and judicial power mandated by our Constitution. If Parliament can constitutionally invest such authorisations in persons who hold office as federal judges, it can effectively disregard the constitutional wall that separates the exercise of executive power from the exercise of judicial power. Form would triumph over substance to the detriment of the constitutional scheme.
It follows that the provisions of the Act investing power in "eligible Judges" are contrary to the Constitution because they invest persons who are judges of the federal courts with powers, functions and obligations that are incompatible with the discharge of their ordinary judicial functions.
I would answer the question stated in the special case as follows: Yes.
The question for determination is whether s 6D (which defines "eligible Judge"), s 6H and Div 3 (ss 39-44) and Div 4 (ss 45-61A) of Pt VI of the Telecommunications (Interception) Act 1979 Cth (the Act) are invalid. Division 3 is headed "Applications for Warrants" and Div 4 "Warrants". The question arises on a special case stated to the Full Court of the Federal Court, which, in turn, was removed into this Court pursuant to s 40 of the Judiciary Act 1903 Cth.
There are further issues of whether an affirmative answer may be given to the question reserved in the special case without reconsideration of what was decided in Hilton v Wells [95] and, if not, whether leave should be given to re-open that decision.
The relevant provisions of the Act are set out in the joint judgment and the judgment of McHugh J. The provisions which are central to the legislative scheme are ss 45 and 46. They empower "eligible Judges" to issue interception warrants.
In Hilton v Wells, there had been removed into this Court pursuant to s 40 of the Judiciary Act so much of a cause pending in the Federal Court of Australia as raised two questions. The first was whether s 20 of the Act was beyond the power of the Commonwealth Parliament. Section 20 empowered certain judges to issue interception warrants. The second question concerned the construction of s 7, in particular whether it prohibited the admission into evidence, in proceedings for an offence of the description in s 7(6), of information obtained by illegal interception of a communication passing over a telecommunications system. This Court ordered that each question be answered in the negative and that the matter be remitted to the Federal Court. The Federal Court then disposed of the balance of the cause [96] .
Section 7 of the Act has since been substantially amended, particularly by s 9 of the Telecommunications (Interception) Amendment Act 1987 Cth (the Amending Act). The former s 20 was repealed by s 14 of the Amending Act. Section 21 of the Amending Act inserted the present Pt VI (ss 32-61), as well as what are now Pts VII (ss 62-79), VIII (ss 80-92), IX (ss 93-104), X (ss 105-107) and XI (s 108). One effect of these changes is to add "an eligible authority of a State" to the Commonwealth agencies who may make applications for the issue of warrants, and another is a significant increase in the number and nature of offences in connection with the investigation of which warrants may be sought.
Counsel for the Commonwealth and for the Commissioner of the Australian Federal Police and the Commonwealth Director of Public Prosecutions stressed that, since the decision in Hilton v Wells, amendments have been made to the Act which further emphasise the conferral of the relevant powers upon "eligible Judges" simply as designated persons. In particular, s 6D has the effect that the powers in question are conferred not on a judge of a designated court but upon a person who, being a judge of a court created by the Parliament, has consented to be nominated as an "eligible Judge" and who has been declared to be such by the Minister. Further, compliance by the authorities with the procedures specified in the Act is said to be encouraged by the provisions of the new Pt VII (ss 62-79). These include severe restrictions on the admissibility in evidence of information and records obtained by unauthorised interception of a communication passing over a telecommunication system. In Hilton v Wells [97] it was held that the Act as it then stood did not prohibit the admission of evidence obtained by an illegal interception and that in such cases it was a matter for the court to exercise the discretion discussed in such authorities as Bunning v Cross [98] .
In the light of the foregoing, this is not a case in which it can be said, as it was in Evda Nominees Pty Ltd v Victoria [99] , that leave is required because the legislation which it is now sought to impugn is "indistinguishable" from that the validity of which has been upheld.
A different situation might arise if, whilst there were significant differences in the relevant legislation, what was sought to be attacked was a constitutional doctrine or principle which was in dispute in the earlier case and which had been applied as a step in the reasoning leading to the disposition of the case.
However, it was common ground in Hilton v Wells [100] that the issue of warrants, pursuant to s 20, was not an exercise of the judicial power of the Commonwealth and it was not suggested that it was ancillary or incidental to any judicial function. Thus, the applicant does not require leave to present his argument that the issue of warrants pursuant to ss 45 and 46 of the Act, inserted by the Amending Act which repealed s 20, is an exercise of the judicial power of the Commonwealth.
I agree that the Court should reject the applicant's submission that ss 45 and 46 confer judicial power.
In support of his submission, the applicant relied upon a number of United States authorities. They were said to indicate that an independent judicial discretion is required to validate a decision to issue a search warrant. In particular, reliance was placed upon what was said by Jackson J, in delivering the opinion of the Court in Johnson v United States [101] , on the importance of the issue of search warrants by "a neutral and detached magistrate".
Properly understood, the United States authorities are consistent with the proposition that the power to issue search warrants is to be exercised judicially. But they do not take the further step that, in the federal sphere, such a power necessarily involves the exercise of the judicial power of the United States. This, by Art III, s 1 of the Constitution of the United States is vested in the Supreme Court and in such inferior courts as the Congress from time to time ordains and establishes.
The Fourth Amendment to the United States Constitution states, in part:
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment was introduced in 1791 against the background of the earlier eighteenth century English decisions (including Entick v Carrington [102] , referred to in the joint judgment) dealing with general warrants [103] . The question then arose as to by whom search warrants might be issued in compliance with the Fourth Amendment. The matter now is dealt with by r 41(a) of the Federal Rules of Criminal Procedure [104] . This states: Rule 41. Search and Seizure
(a) Authority to issue warrant. Upon the request of a federal law enforcement officer or an attorney for the government, a search warrant authorized by this rule may be issued (1) by a federal magistrate judge, or a state court of record within the federal district, for a search of property or for a person within the district, and (2) by a federal magistrate judge for a search of property or for a person either within or outside the district if the property or person is within the district when the warrant is issued but might move outside the district before the warrant is executed.
The standards imposed by the Fourth Amendment upon the United States Government are required of the States by reason of the Fourteenth Amendment; however, the requirement of "a neutral and detached magistrate" may be met by laymen such as justices of the peace and court clerks [105] .
Federal magistrate judges, selected in r 41, are appointed for a term of years under the Federal Magistrates Act 1968 [106] and are described in the literature as "legislative" or "non-Article III judges" [107] . The result is that the issue of search warrants is not one of those "core" matters which are regarded as "inherently judicial" and, as such, to be decided only by an Art III court, that is to say, by a federal judge with life tenure whose salary cannot be decreased. Nevertheless, it has been held that federal courts may, independently of r 41, issue search warrants in exercise of an inherent procedural power and without explicit legislative provision [108] .
In United States federal law, provision for the interception of communications of broadly the same nature as that provided for by ss 45 and 46 of the Australian statute is made by Title III of the Omnibus Crime Control and Safe Streets Act 1968 (Title III) [109] . Title III provides for the authorisation of the interception of wire, oral or electronic communications upon application to and order of a "judge of competent jurisdiction". Title III contains a number of provisions designed to control the use of the information so acquired and to safeguard the privacy interests of those subject to the interception [110] . The term "judge of competent jurisdiction" is defined as including only a judge of the United States district court or of a United States Court of Appeals, and "a judge of any court of general criminal jurisdiction of a State who is authorised by a statute of that State to enter [wiretapping orders]". It would have been competent for the Congress also to designate other persons, such as federal magistrate judges, to grant the necessary permission provided only they answered the Fourth Amendment requirement of "a neutral and detached magistrate", but it has been held that the Congress decided deliberately against that course [111] .
The position in the United States thus appears to be comparable to that which has been arrived at by this Court in construing Ch III of the Constitution. Namely, the exercise of some powers when entrusted to a repository other than a court may be characterised as administrative and non-judicial, yet, when entrusted in an appropriate context to a court, may be held to be the exercise of judicial power as, for example, if the power is ancillary to an undoubted judicial function [112] . That characterisation is identified in the United States as the "functional" analysis of separation of powers [113] .
Even if applicable to ss 45 and 46 of the Act, the distinction would not aid the applicant. For his submission must be that the exercise of the power under ss 45 and 46 to issue warrants is nothing other than the exercise of the judicial power of the Commonwealth, so that it may be conferred only upon a Ch III court.
In any event, in Australia it should be regarded as settled by the considered statements in the joint judgment of five members of this Court in Love v Attorney-General (NSW) [114] that the issue of a warrant under provisions such as ss 45 and 46 involves an exercise of power which is essentially administrative in nature. The Court held that this was so even though the power in question in Love was conferred by s 16 of the Listening Devices Act 1984 NSW upon "the Supreme Court [of New South Wales]". This was treated as a factor of limited significance because the function in question closely resembled one which had traditionally been classified as non-judicial [115] .
Granted then that the powers in question are reposed in designated persons and not in any Ch III court, and that they are essentially non-judicial in character, a more difficult issue remains. It is whether the legislation nevertheless is beyond power because (i) the designated persons who are declared by the Minister to be "eligible Judges" for the purposes of the Act must be judges of a court created by the Parliament under s 71 of the Constitution, and (ii) the exercise of the powers conferred upon such "eligible Judges" is incompatible with the proper discharge of their functions as judges exercising the judicial power of the Commonwealth.
The materials in the special case do not indicate that the performance by "eligible Judges" of their functions under the Act now places such a burden on resources or time available as to impede the discharge of their judicial functions. But that is not the end of the matter.
Speaking of Hilton v Wells, Gaudron J said in Jones v The Commonwealth [116] :
Certainly no argument was advanced, as has on the occasion been foreshadowed, by reference to the manner in which the Federal Court may be involved in reviewing the issue of a warrant, or in determining the issue of admissibility of evidence obtained in consequence thereof. Nor was any material put as to the way in which information obtained in the course of the issue of a warrant may impinge on the discharge of other judicial duties. Her Honour also said [117] : The powers [in s 20] relate directly to the process of criminal investigation, they are exercisable by reference to information on oath as to reasonable grounds for suspicion, and are exercised ex parte and in secret. They are arguably different from powers which are exercised by reference to more precise criteria, in public and by application of the rules of natural justice. 1. (1987) 61 ALJR 348 at 349; 71 ALR 497 at 499. 2. Jones (1987) 61 ALJR 348 at 350; 71 ALR 497 at 499.
There is, with respect, considerable force in these observations. However, the immediate issue in the present case concerns the substantive operation of the impugned provisions of the Act upon the discharge by "eligible Judges" of their judicial functions.
That the "eligible Judges" exercise their statutory powers ex parte, in secret, at the behest of criminal investigators and upon reasonable suspicion may be a matter to some persons of regret. They might see but a distinction without a difference in conferring such functions upon a judge as persona designata, or might conclude that such a system placed under stress the reputation of institutional impartiality enjoyed by the judiciary. But, in my view, these concerns of themselves would not bring about the invalidity of the impugned provisions of the Act. More is required.
In Hilton v Wells [118] , Mason and Deane JJ noted that the ability of Parliament to confer non-judicial power on a judge of a Ch III court, as a designated person, has the potential to undermine the doctrine in the Boilermakers' Case [119] . That doctrine does not allow a combination with the judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it [120] .
In their joint judgment in Hilton v Wells, Gibbs CJ, Wilson and Dawson JJ, when dealing with the now repealed s 20, said [121] :
It was submitted by Mr Ellicott that the separation of judicial and administrative power is not merely a matter of verbal formulae and that is, of course, correct. If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers' Case would doubtless render the legislation invalid. But the exercise of the functions conferred by s 20 would not have that result. The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers. (Emphasis added.) 1. Hilton (1985) 157 CLR 57 at 73-74.
This passage was much discussed in argument in the present case. Those supporting the validity of ss 45 and 46 contended that, like the old s 20, these provisions provided for the exercise of functions by judges who, as individuals, were particularly well qualified to fulfil the sensitive role envisaged by the legislation. In my view, that consideration is somewhat beside the point.
There are many functions of an administrative nature the fulfilment of which ordinarily falls within the province of the executive branch of government but which one might think serving judges, as individuals, were well qualified to perform. But those functions might as well be performed by others. Thus, the issue of warrants under the Act might as well be entrusted by the legislature to retired members of the judiciary, or to the Law Officers. Indeed, under Pt III of the Act (ss 9-17), the Attorney-General is empowered to issue interception warrants in matters of "security", within the meaning of that term in the Australian Security Intelligence Organization Act 1979 Cth. Further, minds might sharply differ as to the involvement of serving judges where the executive function involved policy-making at any broad level, or the enforcement of the criminal law or investigation of apprehended breaches of the criminal law. In other systems, the involvement of judges in such investigative matters may be a normal incident of criminal law procedure. But it is not so with us or other common law countries.
Many administrative functions are advisory in nature or outcome. The advisory opinion is alien to the federal judicial power. The association of serving judges with advisory opinions has the potential to deplete the capital of the judicial branch of government.
Recently, in Morrison v Olson [122] , the Supreme Court of the United States observed that:
[O]ne purpose of the broad prohibition upon the courts' exercise of "executive or administrative duties of a nonjudicial nature" [123] , is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches. 1. (1988) 487 US 654 at 680-681. 2. Buckley v Valeo (1976) 424 US 1 at 123.
Further, judicial involvement in policy-making, criminal law enforcement and the like, may give rise to an appearance of institutional partiality. The point was made, subsequently to the decision in Hilton v Wells, by the Supreme Court of the United States in Mistretta v United States [124] where it said in the Opinion of the Court:
The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action. In addition to this depletion of the capital of the judicial system, the transfer of what may be politically difficult choices to persons who are selected by reason of their current occupancy of judicial office and who, as such, are insulated from the political pressures of the day, may have other consequences. There may be inhibited free and lively public debate as to the choices which the legislative and executive branches of government should make. 1. (1989) 488 US 361 at 407.
These concerns involve matters of principle in a general sense but, of themselves, cannot be determinative of the validity or invalidity of ss 45 and 46 of the Act. The significance of these matters of principle will vary from case to case according to the substantive operation of the statute which, in the instant case, is said to undermine the Boilermakers' doctrine.
The real question, in a case such as the present, is whether the selection by the legislature of judges of courts created by the Parliament for the performance of functions which do not involve the exercise of the judicial power of the Commonwealth undermines the doctrine of the separation of powers by impeding the performance by those designated persons of any particular aspect of their judicial functions.
That, in turn, requires some further consideration of the ends sought to be attained or objectives furthered by the separation of the judicial power of the Commonwealth from the legislative and executive branches of government. This is so, even though, as the Judicial Committee observed in the Boilermakers' Case [125] , the question of the separation of the functions of government effected by the Australian Constitution is one of construction. Their Lordships went on to doubt whether, had Locke and Montesquieu never lived, nor the Constitution of the United States ever been framed, any different interpretation of the Australian Constitution could have been given to that propounded by them.
Montesquieu was animated by a desire to avoid danger to political liberty which he perceived as posed by undue concentration of power in any one branch of government. In Ch 6 of Book II of The Spirit of Laws, published in 1748, he said [126] :
The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
Implicit in what is there said is a recognition of the distinct characteristics of the three species of power which the author identified [127] . 1. Translation in Kurland, The Founders' Constitution (1987), vol 1, pp 624-625. 2. See Komesar, Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, University of Chicago Law Review, vol 51 (1984) 366 at 371-373; note, Harvard Law Review, vol 103 (1989) 279 at 286-287.
Further, in a federal government, such as that in Australia, as distinct from a unitary system, the judicial power occupies a special position. This was explained, with reference to Australia, by Evatt J in Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [128] . His Honour said:
"Questions of judicial power occupy a place apart under the Constitution, not only because of the special nature of judicial power but because of the elaborate provisions of Ch III. As Sir W Harrison Moore has pointed out in his well known work on the Australian Constitution "between legislative and executive power on the one hand and judicial power on the other, there is a great cleavage" " [129] . The matter was developed as follows in the joint judgment in this Court in the Boilermakers' Case [130] : In a federal form of government a part is necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is supreme. A federal constitution must be rigid. The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them. The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the governments were placed in the federal judicature. 1. (1931) 46 CLR 73 at 117. 2. Commonwealth of Australia, 2nd ed, p 101. 3. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267-268.
The chief and, as is apparent from this passage, necessary utility of the exercise of the federal judicial power is the quelling of justiciable controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion [131] . Those controversies may arise between citizens (individual or corporate), between government and the citizen (in matters of civil and criminal law), and between governments themselves.
An essential attribute of the judicial power of the Commonwealth is the resolution of such controversies by the means described so as to provide final results which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning. An objective of the exercise of the judicial power in each particular case is the satisfaction of the parties to the dispute and the general public that, by these procedures, justice has both been done and been seen to be done. Accordingly, the rules as to reasonable apprehension of bias in their application to the courts [132] have, at their root, the doctrine of the separation of the judicial from the political heads of power. Those rules govern the conduct of other decision-makers also but their paradigmatic application is to the exercise of judicial power. Their Lordships somewhat understated the position when observing in the Boilermakers' Case [133] that the fundamental principle which makes a combination of actor and judge appear contrary to natural justice "is not remote from that which inspires the theory of the separation of powers".
In Love v Attorney-General (NSW) [134] the Court noted that the exercise of the power to issue interception warrants may disqualify a judge from sitting in a case in which evidence is sought to be given of a conversation intercepted pursuant to the warrant. As I have indicated, the Act stipulates that "eligible Judges" be drawn from those who are judges of a court created by the Parliament. Of those courts, the Federal Court of Australia has the most extensive jurisdiction. It exercises jurisdiction in matters arising under more than 100 statutes of the Parliament [135] . An obvious example where information presented upon an application for the issue of a warrant may bear upon subsequent proceedings in the Federal Court is provided by s 39B of the Judiciary Act. Nor should it be overlooked that the Full Federal Court entertains appeals after criminal trials conducted in the Supreme Court of the Australian Capital Territory. The possibilities are, indeed, considerable and, what is more important, impossible to foresee at the time of the issue of any warrant as an "eligible Judge".
The parties to a proceeding to be determined by a judge (sitting alone, with a jury, or on appeal) who is also for the purposes of the Act an "eligible Judge", may assume, as a necessary attribute of the exercise of the judicial power of the Commonwealth, that an independent mind will be brought to bear upon the resolution of their controversy. An interest or association with the parties or with the circumstances leading up to or otherwise involved in the trial may, if undisclosed, give rise to a reasonable apprehension on the part of an impartial observer who knows the relevant facts, that this standard will not be met.
It is true, as was urged by counsel supporting the validity of the Act, that, on an independent recollection of such a circumstance, the judge on his or her own motion may decide in favour of disqualification. However, I agree with McHugh J that public confidence must be shaken, and parties left puzzled and suspicious if there develops any practice of "eligible Judges" (who will not be known to be such) discharging themselves, particularly, as may be the case, after the trial or other proceeding has commenced and considerable expenditure been incurred. And, in the nature of things, there will be borderline cases as to whether the judge should not sit. Also, there is a public interest which requires a judge not to accede too readily to suggestions of appearance of bias [136] . In many cases, on being informed of the facts by the judge, neither party may object and upon further consideration of the matter, including the absence of objection, the judge may decide to proceed [137] .
The point of immediate importance is that these matters necessarily involve considerations of fact and degree and to deny to the "eligible Judge" what would otherwise be the step of disclosing the relevant facts, as recalled by the judge, to the parties and their representatives, would be seriously to impede the discharge by the judge of the judge's duties in the exercise of the judicial power of the Commonwealth.
Counsel for the applicant also pointed to material in the Special Case that, in fact, those "eligible Judges" now acting as such, or by far the greater number of them, do not maintain records in respect of warrants issued under the Act upon personal application made to them, beyond the identities of those attending on the application and the type of application. Copies are not retained of the affidavit in support of the application or the warrant. But, on the other hand, the legislation does not forbid the taking of those steps. And, as will be explained, telephone applications are in a special legislative position.
What to my mind is more important and, indeed, critical is the further submission by the applicant that, even if such records were maintained, as a matter of choice, the assistance they would provide to stimulate recollection and to ventilate any question of appearance of bias is denied by ss 70 and 79 of the Crimes Act 1914 Cth. However, it should be pointed out that the precise issue framed in the special case attacks only the validity of the Act, not its operation in conjunction with ss 70 and 79.
(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he is authorized to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of being a Commonwealth officer, and which it is his duty not to disclose, shall be guilty of an offence.
(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any fact or document which came to his knowledge, or into his possession, by virtue of having been a Commonwealth officer, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose, shall be guilty of an offence.
The term "Commonwealth officer" is defined in s 3(1) as meaning, unless the contrary intention appears, "a person holding office under, or employed by, the Commonwealth" and includes "an officer or employee within the meaning of the Public Service Act 1922 ".
The legislation by which Parliament has created the courts, members of which may become "eligible Judges" within the meaning of s 6D of the Act, provides for appointment by the Governor-General in Council [138] . Therefore, in my view, such persons answer the description of persons holding office under the Commonwealth within the meaning of the definition of Commonwealth officer in s 3(1) of the Crimes Act, at least in its application to ss 70 and 79 of the Crimes Act. This is so notwithstanding the particular provisions made in Pt III of the Crimes Act (ss 31-50) dealing with offences relating to the administration of justice and containing, in s 31, a special definition, "holder of a judicial office".
Section 79 of the Crimes Act creates a number of offences in relation to official secrets which turn upon the phrases "prescribed sketch, plan, photograph, model, cipher, note, document or article" and "prescribed information". These are defined in s 79(1) in such a fashion that a document or information will have this character if it has been obtained by a person owing to his position as a Commonwealth officer and if "by reason of its nature or the circumstances under which it was entrusted to him or it was made or obtained by him or for any other reason, it [was] his duty to treat it as secret".
Section 50(2) of the Act obliges an "eligible Judge" who has issued a warrant on a telephone application to keep a copy of the warrant. No such requirement is imposed in respect of other warrants under Div 4 nor in respect of written or oral information provided upon the application for the warrant. It may be (as the applicant submits is the case) that, upon its proper construction, the Act gives rise to an obligation not to disclose that information except for the purposes of the Act and to preserve as confidential the contents and fact of the issue of a warrant [139] . There may also be occasion for the imposition of an equitable obligation of confidence under the general law. The result then might be that there were "prescribed documents" or "prescribed information" which it was "the duty" of the "eligible Judge" to treat as secret, within the meaning of s 79(1), by reason of their nature or the circumstances under which they were entrusted to the "eligible Judge".
However, in my view, any such "duty", in so far as it applied to an "eligible Judge", would not extend to the discharge by the "eligible Judge" of functions as a judge exercising the judicial power of the Commonwealth. In so far as it rested upon an equitable obligation of confidence under the general law, such an obligation would be formulated in a manner which observed necessary statutory or, in this case, constitutional constraints [140] .
In so far as the duty rested on an implication from Div 4 of the Act itself, one would not readily construe the legislation as setting up a duty in opposition to the Constitution. Any such duty presumably would be owed, at least in the first instance, to the "agency" (as defined in s 5 of the Act) which made the application and would exist as a matter of civil obligation. However, s 6D(4) confers judicial protection and immunity upon an "eligible Judge" "in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act". This would include immunity in respect of what otherwise would be civil wrongs [141] .
Section 70 of the Crimes Act also operates only where it was the "duty" of the Commonwealth officer not to disclose the information in question. The same reasoning is applicable here as to s 79. In particular, whether the source of the duty be in a statute, namely Div 4 of the Act, or the general law, the ambit of the duty stops short of impeding discharge of the higher duty flowing from Ch III of the Constitution by the "eligible Judge".
But for this construction which, in my view, should be placed upon the Act and upon ss 70 and 79 of the Crimes Act, I would have accepted the submission by the applicant that the impugned provisions of the Act and these sections of the Crimes Act, in their operation upon information and documents acquired by "eligible Judges" pursuant to the Act, did amount to an impermissible undermining of the Boilermakers' doctrine.
The proceeding in this Court should be dealt with by orders as proposed in the joint judgment.
Grollo
Palmer
High Court of Australia Brennan CJ Deane, Dawson, Toohey, McHugh and Gummow JJ Grollo v Palmer [1995] HCA 26
(1956) 94 CLR 254
(1957) 95 CLR 529
(1969) 14 FLR 101
(1990) 170 CLR 104
(1983) 153 CLR 52
(1955) 92 CLR 353
(1971) 124 CLR 27
(1990) 169 CLR 307
(1994) 179 CLR 427
(1985) 157 CLR 57
(1987) 61 ALJR 348
(1937) 58 CLR 62
(1938) 59 CLR 556
(1979) 46 FLR 409
(1953) 87 CLR 144
(1991) 172 CLR 501
(1906) 4 CLR 297
(1939) 61 CLR 313
(1993) 178 CLR 408
(1954) 90 CLR 353
(1985) 58 ALR 245
(1984) 1 FCR 55
(1979) 24 ALR 577
(1993) 43 FCR 396
(1993) 43 FCR 404
(1993) 45 FCR 336
(1993) 43 FCR 408
(1985) 5 FCR 296
(1978) 141 CLR 54
(1984) 154 CLR 311
(1972) 127 CLR 588
(1987) 163 CLR 656
(1991) 173 CLR 167
(1995) 183 CLR 323
(1931) 46 CLR 73
(1983) 152 CLR 570
(1994) 181 CLR 41
(1986) 161 CLR 342
(1994) 52 FCR 48
(1991) 25 NSWLR 224
(1990) 22 FCR 73
(1991) 28 FCR 291
(1995) 183 CLR 10
(1988) 63 ALJR 121