Hilton v Wells

[1985] HCA 16

High Court of Australia|1982-10-01|Before: Dawson JJ, John J, McGregor J

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Source facts

Court

High Court of Australia

Decision date

1982-10-01

Before

Dawson JJ, John J, McGregor J

Source

Original judgment source is linked above.

Judgment (110 paragraphs)

[1]

The applicant has been charged on the information of the third respondent that between 1 October 1982 and 1 August 1983 at Sydney he conspired with Fayez Hakim, Keith Godfrey Harris and Rex Frederick Jackson to bribe Rex Frederick Jackson who was then a Minister of the Crown. Committal proceedings in respect of the offence have been commenced but are not yet completed. It is stated that the evidence relied on to implicate the applicant in the conspiracy consists almost solely of conversations alleged to have taken place between him and Hakim and Harris on the telephone, which conversations were intercepted by the Australian Federal Police and recorded on tape recorders. The interceptions were allegedly made under the authority of six warrants, obtained by the first respondent, a member of the Australian Federal Police, under s. 20 of the Telecommunications (Interception) Act 1979 Cth, as amended (the Act). Two of the warrants were issued by St. John J. and four by McGregor J., both of whom are judges of the Federal Court of Australia and who signed the warrants in that capacity. As it happens both were also judges of the Supreme Court of the Australian Capital Territory. The solicitor for the applicant alleges that he has seen a federal police document which purported to be a log of all telephone conversations allegedly intercepted by federal police pursuant to the six warrants and that as far as he could ascertain from the log there was no conversation which could be said to implicate the applicant or his co-accused in any drug offence that had been committed or was likely to be committed. The applicant has made application to the Federal Court of Australia for the quashing of the warrants and for certain declarations and other orders. Part of the proceeding pending in the Federal Court has been removed into this Court. The part of the cause removed raised two questions: (1) whether s. 20 of the Act is beyond the power of the Parliament of the Commonwealth; and (2) whether s. 7 of the Act prohibits the admission into evidence, in proceedings for an offence of the description in s. 7(6)(c) of the Act, of information obtained by an illegal interception of a communication passing over a telecommunications system.

[52]

The question for decision in the present case then is whether s. 20 confers powers on (inter alia) the Federal Court, or on the judges individually as designated persons. It is a question which involves fine distinctions, which some may regard as unsatisfactory. Most of the authorities in which the question is discussed, apart from those already cited, concern the question whether the decision of a judge who was a member of the Supreme Court of a State but who was exercising particular statutory functions was the decision of the Supreme Court within s. 73 of the Constitution, so that an appeal lay to this Court. In the first case in which the question arose, Holmes v. Angwin [11] , a statute of Western Australia provided that disputed elections were to be heard and determined by the "Supreme Court" to be constituted by a single judge. It was held that no appeal lay to the High Court from the decision of this tribunal, because it was not a decision of the Supreme Court within s. 73 of the Constitution. Griffith C.J. said [12] , that "the real tribunal is a new tribunal consisting of a Judge of the Supreme Court as a persona designata ". The judgments of all the members of the Court reveal that in reaching this conclusion they were influenced by the nature of the power conferred, which was regarded as "different from the kind of matters which the Supreme Courts of this and the other States were primarily constituted to deal with" [13] , and by the provisions of the statute which indicated that the applicable procedure, and the manner of enforcement of the decision, differed from those ordinarily applicable to the Supreme Court and which precluded an appeal to the Full Court of the Supreme Court. A similar conclusion was reached in C. A. MacDonald Ltd. v. South Australian Railways Commissioner [14] . In that case a South Australian Act of 1847 provided that compensation for land compulsorily acquired was to be assessed by a jury presided over by a judge, commissioner or sheriff, but a later statute, of 1881, provided that either party might apply for an order for a trial of the question "in the Supreme Court", and that when a judge ordered a question of compensation to be tried "before the Court", the question should be stated in the form of an issue, that the verdict and judgment should be "under and subject to the control and jurisdiction of the Supreme Court as in ordinary actions therein" and that the rights of the parties should be the same as in the case of an ordinary action tried under the Supreme Court Act 1878 S.A.. However, a judgment was not enforceable as a judgment of the Supreme Court and this circumstance was relied on by the members of this Court in reaching the conclusion that the jurisdiction was conferred upon the judge of the Supreme Court as a persona designata, and that his judgment was not a judgment of the Supreme Court. These two decisions are long-established authority against the applicant's argument in the present case.

[57]

Where, however, a matter is referred by statute to a judge of a court described as a judge of that court "the prima facie and natural meaning of the language" used is that it is referred to that judge as such. There is a strong prima facie presumption that the court "will determine the matter as a court." This is almost a "necessary implication." These phrases are taken from the judgment in National Telephone Co. Ltd. v. His Majesty's Postmaster-General [19] . The reference to National Telephone Co. Ltd. v. His Majesty's Postmaster-General suggests that the remarks in that case went a little further than in fact they did; the statute there in question referred the matters not to a judge but to a court, and the words of their Lordships were directed to that situation. Both Rich and Dixon JJ. relied on the fact that the jurisdiction which they were considering was conferred on a "judge of the Supreme Court in chambers" [20] . However, Dixon J. [21] said that the argument that the power was given to the judge in chambers, not in his character as a judge of the Supreme Court, but as a person filling that description, was one which relied "upon distinctions without differences". He added, "without casting any doubt on the conclusion reached in [Holmes v. Angwin] the more metaphysical parts of the judgments are difficult to follow and import unreal distinctions". Evatt J., who dissented, said [22] : Further, the nature of the functions committed to a body is of very great significance in determining whether "judicial power," properly so called, has been exercised by it. This principle is well illustrated by Holmes v. Angwin, a case dealing with the determination of disputed returns by the Supreme Court of a State. I have heard nothing to convince me that this case was wrongly decided. Indeed it finds support in the Privy Council decision of Strickland v. Grima [23] . 1. (1906) 4 C.L.R. 297. 2. (1937) 58 C.L.R., at p. 72. 3. [1913] A.C., at pp. 560, 562; [1913] 2 K.B. 614. 4. (1937) 58 C.L.R. at pp. 80-81, 93-96. 5. (1937) 58 C.L.R., at p. 97. 6. (1937) 58 C.L.R., at p. 105. 7. [1930] A.C. 285.

[60]

It clearly appears from these authorities that where a power, judicial or non-judicial, is conferred by statute upon a court or a judge, it is not necessarily conferred on the court or the judge as such - the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it. Even if it were to be assumed that the fact that the power conferred by s. 20 is conferred on "a Judge" gives rise to a prima facie presumption that it is conferred on the judge as such, and that he will determine it as a member of the court to which he belongs, we consider that there are sufficient indications in the statute to rebut that presumption. In the first place it is clear that if the judge is a member of the Supreme Court of a State, or of the Supreme Court of the Northern Territory, the power is not conferred on the Supreme Court of the State or Territory, but upon the judge as a designated person. Unless the Governor-General has made arrangements with the Governor of the State or the Administrator of the Northern Territory, no judge of the Supreme Court of the State or Territory will be invested with power by s. 20, and if those arrangements are made they will not necessarily be applicable to all of the judges of the Supreme Court of the State, and cannot be applicable to all the judges of the Supreme Court of the Northern Territory. Since when s. 20 refers to "a Judge" it in some cases refers to a judge as a designated person, it is unlikely that the Parliament intended in other cases to refer to the judge as such and to confer power on the court. Secondly, the nature of the power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in his capacity as a judge or as a designated person. If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person. Thirdly, none of the provisions of the Federal Court of Australia Act 1976 Cth, as amended, or of the rules thereunder is rendered applicable to the exercise of power under s. 20. By s. 19(1) of that Act the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament and s. 20 of the Telecommunications (Interception) Act does not express an intention to invest the court with jurisdiction. Under s. 20 the judge makes no order and nothing that he does is enforced under the Federal Court of Australia Act. He grants a warrant, the effect of which depends entirely upon the Telecommunications (Interception) Act.

[68]

However, this conclusion will not assist Mr. Ellicott if the proper construction of s. 7 is that it is not dealing with the admissibility of evidence in court proceedings. It is that question which must now be addressed. Leaving aside the provisions in ss. 11 and 21 relating to the issue of warrants authorizing the inspection of telegrams (which are not material for present purposes), s. 7 is concerned in essence with two prohibitions. The first is the prohibition of the interception of a communication passing over a telecommunications system, subject to prescribed exceptions. The second is the prohibition of the communication by one person to another person of any information obtained by intercepting a communication passing over a telecommunications system with a prescription of the circumstances under which such information may be divulged without committing an offence. Hence sub-s. (1) creates the offence of unlawful interception. Sub-section (2) outlines the circumstances in which an interception will not be affected by the prohibition in sub-s. (1). Sub-section (4) moves on to the consequences of permissible interception. It prohibits the divulging or communicating by one person to another of any information obtained by an interception except in the circumstances described therein. Sub-section (5) introduces further exceptions to the ban on the communication of any information, related in this case to officers of the Australian Security Intelligence Organization and to police officers. It is introduced by the words "Notwithstanding sub-section (4)", indicating thereby that the effect of the sub-section is to make further inroads on the ban imposed by the former sub-section. Sub-section (6) opens with the words "Without limiting the application of sub-section (4)". These words place the sub-section in a different light to that cast on sub-s. (5) by the opening words of that sub-section. They suggest that the sub-section is entering a field which differs from that which is the subject of sub-s. (4). They are confirmatory of a construction of sub-s. (4) which would exclude from its prohibition the communication of intercepted information by a person to a court. In Miller v. Miller [33] it was said of similar words in s. 5(3) of the Telephonic Communications (Interception) Act 1960 Cth: " I doubt whether a court is "another person" within the meaning of the words, "A person shall not divulge or communicate to another person " in that sub-section." This view was adopted and applied by Crawford J. in Reg. v. Padman [34] . Sub-section (6) is then moving into a field which has not been touched by sub-s. (4). It indicates, in addition to those circumstances in which by virtue of sub-s. (4) intercepted information may be communicated, the circumstances in which such information may be given in evidence in a court proceeding. Without it, the only circumstances in which the Act would seem to contemplate intercepted information being divulged are those set out in sub-ss. (4) and (5). Nevertheless, it is odd that the section does not contain any prohibition on divulging intercepted information to a court otherwise than in the circumstances prescribed in sub-s. (6). We incline to the view that this omission is merely a legislative oversight the result of which however is that relevant evidence obtained from an intercepted communication may be given in a proceeding other than those mentioned in sub-s. (6) without the person giving it committing an offence under the Act.

[77]

When s. 9 of the Medical Act 1933 speaks of a judge in chambers, it refers to a well-understood mode of exercising the judicial authority belonging to a judge in virtue of his office as a judge of the Supreme Court. The argument to the contrary was, in effect, that s. 9 gave the power to the judge in chambers, not in his character of judge of the Supreme Court, but as a person filling that description. The argument appeared to me to rely upon distinctions without differences. In many branches of the law instances occur where written instruments refer to persons answering a given legal description in order to identify them and then proceed to confer rights or powers upon them which do not arise out of the description or character by which they are identified. But, in my opinion, this distinction cannot be maintained where a statutory power or jurisdiction is added to the powers and jurisdiction belonging to a court or judge and is made exercisable in virtue of that very character. It is true that there are many observations to be found in Holmes v. Angwin [43] which give support to similar reasoning. But, without casting any doubt on the conclusion reached in that case, I venture to suggest that the more metaphysical parts of the judgments are difficult to follow and import unreal distinctions. Latham C.J., with whom Starke J. agreed, expressed a similar view [44] : Where, however, a matter is referred by statute to a judge of a court described as a judge of that court "the prima facie and natural meaning of the language" used is that it is referred to that judge as such. There is a strong prima facie presumption that the court "will determine the matter as a court." This is almost a "necessary implication." These phrases are taken from the judgment in National Telephone Co. Ltd. v. His Majesty's Postmaster-General [45] . See also Rich J. [46] . 1. (1937) 58 C.L.R. 62. 2. (1937) 58 C.L.R., at pp. 93-97. 3. (1937) 58 C.L.R., at p. 97. 4. (1906) 4 C.L.R. 297. 5. (1937) 58 C.L.R., at p. 72. 6. [1913] A.C., at pp. 560, 562; [1913] 2 K.B. 614. 7. (1937) 58 C.L.R., at pp. 80-81.

[108]

Unless the provisions of sub-s. (6) are construed as impliedly precluding the disclosure of some information obtained as a result of interception, the sub-section serves no real purpose. No other provision of the Act imposes a prohibition on the disclosure in evidence in legal proceedings of information obtained as a result of interception. It cannot be suggested that the purpose of the section was to make clear that the prohibition contained in sub-s. (4) did not extend to disclosure in the course of giving evidence in legal proceedings since, if that were the purpose of sub-s. (6), there would be no point at all in the restriction of its provisions to the five specified classes of proceedings. In the overall context of a section which, under criminal sanction, prohibits unauthorized interception and prohibits the unauthorized use of information obtained as a result of authorized interception, the implication is plain that the provisions of sub-s. (6) were intended to provide a comprehensive identification of the circumstances in which information obtained as a result of interception of a telecommunications communication or as a result of access to telegrams could lawfully be given in evidence in legal proceedings. In other words, the effect of sub-s. (6) is that evidence can only be given of information obtained as a result of interception of a communication passing over a telecommunications system or as a result of access to telegrams if the conditions laid down by the sub-section are satisfied, that is to say, if the information is of a kind to which the sub-section refers (viz. information obtained by authorized interception or access) and if the proceedings are of one or other of the kinds described. So viewed, the provisions of sub-s. (6) neither create an additional offence nor deprive the courts of the power to reject evidence which is otherwise inadmissible or which should be rejected on discretionary grounds. All that the sub-section does is to confine within the designated limits the circumstances in which material obtained by interception of communications or access to telegrams may, if otherwise admissible, be given in evidence.