Grollo v Palmer

Grollo v Palmer - [1995] HCA 26 - HCA 1995 case summary — Zoe

[42]

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.

[45]

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.

[47]

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.

[49]

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.

[53]

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] :

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