Miller v Miller

The Family Court, both at first instance and on appeal, rejected the evidence of the conversations, doing so in obedience to s. 7 of the Listening Devices Act, 1969 N.S.W., ("the Act"), the State in which the Family Court, both at first instance and on appeal, sat to hear and determine the proceedings.

This Court, on 7th April, granted special leave to appeal from the order of the Full Court of the Family Court dismissing the appellant's appeal to that Court, such leave being limited to the question whether the abovementioned evidence was admissible. The grounds of appeal, filed pursuant to such special leave, were that the Act was not "applicable" to proceedings under the Family Law Act 1975 Cth, that the extension handset forming part of the telephone service was not a "listening device" within the meaning of s. 3 of the Act, and that in any case the father as the child's custodian both had the power to consent and had consented on the child's behalf to the listening to the child's conversation which had taken place.

Upon the matter being called on for hearing in this Court, leave to amend the grounds of appeal was sought and granted. The amendment added two grounds of appeal, namely:

(f) That the Listening Devices Act, 1969 N.S.W. is inconsistent with the Telephonic Communications (Interception) Act 1960-1975 Cth, and is accordingly invalid by operation of s. 109 of the Constitution.

(g) That the conduct of the appellant in listening to the conversations between the respondent and their son was lawful under s. 4 of the Telephonic Communications (Interception) Act.

The part of the Act relevant to the amended grounds of appeal is s. 7 (1) and (2) as follows:

(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section four of this Act, evidence of that conversation may not be given by that person in any civil or criminal proceedings.

(2) Subsection one of this section does not render inadmissible -

(a) evidence of a private conversation that has, in the manner referred to in that subsection, come to the knowledge of the person called to give the evidence, if a party to the conversation consents to that person giving the evidence;

(b) evidence of a private conversation that has, otherwise than in the manner referred to in that subsection, come to the knowledge of the person called to give the evidence, notwithstanding that he also obtained knowledge of the conversation in such a manner; or

(c) in any proceedings for an offence against this Act, evidence of a private conversation that has in the manner referred to in that subsection come to the knowledge of the person called to give the evidence.

The Telephonic Communications (Interception) Act 1960, as amended, ("the Australian Act"), carries the title "An Act to Prohibit the Interception of Telephonic Communications except where Specially Authorised in the Interests of the Security of the Commonwealth". Section 5 of the Australian Act forbids any person to intercept a communication passing over the telephone system which is defined to mean the telephone system controlled by, formerly the Postmaster-General's Department but now the Australian Telecommunications Commission, subject only to the exceptions outlined in s. 5 (2).

Section 4 of the Australian Act, around which the argument before this Court has largely centred, should be set forth in full:

(1) For the purposes of this Act, but subject to the next succeeding sub-section, interception of a communication passing over the telephone system consists of listening to or recording, by any means, such a communication in its passage over the telephone system without the knowledge of the person making the communication.

(2) Where a person lawfully on premises to which a telephone service is provided, by means of a telephone instrument or other device that is part of that service -

(a) listens to or records a communication passing over a telephone line that is part of that service, being a communication that is being made to or from that service; or

(b) listens to a communication passing over such telephone line as a result of a technical defect in the telephone system or the mistake of an officer of the Department,

the listening or recording does not, for the purposes of this Act, constitute the interception of the communication.

(3) For the purposes of the last preceding sub-section, two or more telephone services that are connected by the same telephone line to a telephone exchange shall be deemed to be the one telephone service.

Section 5 (3) of the Australian Act provides that a person shall not, with two stated exceptions, divulge or communicate to another person or make use of or record any information obtained by intercepting a conversation passing over the telephone system.

Upon the hearing of the appeal the State of New South Wales intervened by counsel and the State of South Australia, pursuant to the leave of the Court, made a written submission. In each case the State supported the respondent and adopted the argument of her counsel.

The appellant submitted that there was a clear inconsistency within the meaning and operation of s. 109 of the Australian Constitution between s. 7 of the Act and the Australian Act. This was so, it was said, for two reasons: firstly, that there was a direct inconsistency, listening upon the extension being lawful under the Australian Act and was sought to be made unlawful by the Act: and, secondly, that the Australian Act evinces the intention that it should constitute the law on the topic of telephonic interception or, to use the metaphoric expression, the Australian Act occupied the field of telephonic interception.

The respondent, in answer to these arguments, repeated her submission, which found favour with the Family Court, namely, that by reason of the terms of s. 4 of the Australian Act the topic or field upon or within which it operated was telephonic interception other than interception by means of a part of the telephone service within the premises to which the telephone line is connected. Listening to conversation by means of the telephone extension within the house was therefore in a field left untouched by the Parliament and thus an area available for legislative action by the States.

The relevant constitutional law is not in doubt and has frequently been stated. It now needs no documentation by reference to the decided cases. There are two distinct bases for the conclusion of inconsistency within the meaning of s. 109 of the Constitution. There may be what may be called a textual collision between the provisions of the Australian Act and of the State Act or the Australian Act may manifest an intention on the part of the Parliament that its law on the topic of its Act shall be the law, that is to say, the exclusive law on that topic both for what it forbids and what it allows.

The question in this case is to be resolved by construction of the Australian Act. Is the right conclusion, from a perusal of its terms, that the Act intends to be the law only as to interception of messages passing over the telephone system other than over so much of it as is within the premises to which a telephone service is connected or does it intend to be the whole law as to the interception of telephonic messages? In my opinion, the answer to this question disposes of both the amended grounds of appeal. For, if the Parliament has exhibited what for brevity I shall call the limited intention, it has had nothing to say as to a matter beyond the area within and about which it intended to legislate: such a conclusion would leave the State free to legislate in the area outside the limited field occupied by the Australian Act. In that case there would, in my opinion, be no room in this case for a textual collision. The Parliament would have said nothing as to the matter on which the State has now legislated. But if, on the other hand, the Australian Act shows an intention that it shall be the whole law with respect to telephonic interception, both grounds of inconsistency would be made out. As the whole law on the subject, the effect of s. 4 (2) would be that action within its terms would be lawful. No State might validly say it was unlawful to do what the Australian Act allows or attach consequences to such action on the footing that it was proscribed.

In my opinion, the Australian Act does evince a clear intention to be the whole law on the matter of telephonic interception: nor should such a conclusion be surprising for the telephone system is provided and administered by an Australian instrumentality under Australian law, though this circumstance may not perhaps itself provide a ground of inconsistency. But, having regard to that circumstance, it is indeed strange that the State should profess to authorize the forfeiture of the telephonic device - in this case, the extension handset should be forfeited to the Crown in right of the State: see s. 4 (4) of the Act. Clearly, there would be no power to do so. Section 4 of the Australian Act, it seems to me, indicates that interception at any point in the telephone system is within the purview of the Act. For example, a person unlawfully on the premises to which a telephone service is connected may breach the Act by interception by means of the telephone extension within the premises. Section 4, though it might be thought at first sight to contain a definition of what relevantly constitutes interception, in truth provides an exception from a complete prohibition upon interception otherwise than in pursuance of a warrant issued pursuant to s. 6 or s. 7. The contrary view submitted by the respondent and espoused by the Family Court, in my opinion, depends upon a too narrow and an almost pedantic construction of the Australian Act. It seems to me that upon its proper construction the Australian Act quite clearly intends that it should be the sole law about telephonic interception and that by reason of its provisions, listening to a telephonic message by means of the telephone extension within premises to which a telephone service is connected by a person lawfully on those premises should be lawful.

Accordingly, in my opinion, s. 7 (1) is invalid at least in so far as it would forbid a person lawfully on the premises to listen in on a telephone extension within a house to which a telephone service is connected and in so far as it would preclude the reception in evidence of what was gleaned by such listening. The appeal should be allowed, the order of the Family Court set aside and the matter remitted to the Full Court of the Family Court to further hear the appeal by the appellant to that Court.

There remains the question of the costs of this appeal, bearing in mind that the appellant has succeeded on a ground which, though notified to the respondent about ten or twelve days before the case was called on for hearing in this Court, was only added by the Court's leave at the commencement of the hearing of the appeal. I am of opinion that in these circumstances the costs of the day, the hearing of the appeal taking less than the day, should be paid by the appellant. I do not think the order for costs should go further than that as the Court has not dealt with any of the other grounds of appeal.

I have had the advantage of reading the reasons for judgment prepared by the Chief Justice and am in general agreement with them. I have very little to add.

The Telephonic Communications (Interception) Act 1960 Cth, as amended, was in my opinion intended to express completely the law governing the interception of communications passing over the telephone system. Section 4 (2) of that Act has the effect (inter alia) that a person who, being lawfully on premises, listens in on an extension telephone forming part of the telephone system within those premises, and records the conversation which he overhears, is not acting unlawfully. Although I need not decide whether s. 5 (3) of that Act prohibits the giving of evidence of a conversation intercepted within the meaning of that Act, 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: see Canadian Pacific Tobacco Co. Ltd. v. Stapleton [1] ; Cowan v. Stanhill Estates Pty. Ltd. [2] . However, if the sub-section does not render evidence of such a conversation inadmissible, the court would have a discretion to exclude it, since it was unlawfully obtained: Bunning v. Cross [3] .

1. (1952) 86 C.L.R. 1, at p. 6. 2. [1966] V.R. 604. 3. Ante, p. 54.

The effect of s. 4 of the Listening Devices Act, 1969 N.S.W., if that section were wholly valid, would be to make it an offence to use an extension telephone to hear, record or listen to a private conversation (except in the cases specified in s. 4 (2)) and s. 7 would then produce the consequence that evidence of the conversation could not be given in any proceedings. Sections 4 and 7 in combination render the use of the telephone extension unlawful and prohibit the giving in evidence of any conversation which has come to the knowledge of any person as the result of such an unlawful use. They thus deal with telephonic interceptions, although the Commonwealth Act entirely covers that field, and are accordingly to that extent (but only to that extent) inconsistent with the Commonwealth Act and to the extent of that inconsistency are invalid.

I agree in the orders which the Chief Justice proposes.

I have had the advantage of reading the judgment of the Chief Justice. I agree that, for the reasons there stated, this appeal should be allowed.

At the hearing of this appeal leave was granted to add two further grounds of appeal as follows:

(f) That the Listening Devices Act, 1969 N.S.W. is inconsistent with the Telephonic Communications (Interception) Act 1960-1975 Cth, and is accordingly invalid by operation of s. 109 of the Constitution.

(g) That the conduct of the appellant in listening to the conversations between the respondent and their son was lawful under s. 4 of the Telephonic Communications (Interception) Act.

The grounds need to be read together. It can hardly be said that the whole of the New South Wales Act is invalid. The invalidity would only extend to the use of a listening device to listen to a private conversation where the listening device is a telephone which is part of the telephone system as it is defined in the Commonwealth Act. See s. 3 (1) and s. 3 (3). When so understood, the matters alleged in ground (f) and in ground (g) are made out. The Commonwealth Act by s. 4 gives a meaning and content to the words "interception of a communication passing over the telephone system" for the purposes of that Act. Section 5 (1) and (2) of the Act forbid interception of such a communication except when it is done by a person or in a way permitted by the Act. By s. 5 (3) divulging or communicating any information obtained by the interception is forbidden.

So far as the prohibitions do not extend there should in my opinion be implied a legislative intention that the use of the telephone system was otherwise permitted, that is to say, an implied intention to cover the whole subject matter of listening to or recording communications over the telephone system without the knowledge of the person making the communication. I am also of opinion that the Commonwealth Act discloses an implied intention to permit the divulging or communicating of any information obtained by acts which do not amount to an interception. I agree with the reasons which have been expressed by Barwick C.J. for these conclusions.

However, it still remains to be considered whether the Commonwealth Act is directed to the general subject matter of what evidence shall or shall not be allowed to be given in a New South Wales Court of a communication listened to over the telephone system without the knowledge of the person making the communication. The question must be considered as it would arise in a case where a court of that State is dealing with a cause or matter arising wholly under the law of that State; for it must be borne in mind that it is only incidental that the present appeal is concerned with evidence in a federal court with the New South Wales law of evidence applying by virtue of s. 79 of the Judiciary Act 1903 Cth. It is clear that the Commonwealth Act would cause to be invalid under s. 109 a law of the State which made evidence admissible of information obtained by intercepting, within the meaning of that word in the Commonwealth Act, a communication passing over the telephone system. The divulging or communicating by the person as a witness would be contrary to s. 5 (3) of the Commonwealth Act. The State Act would be directly inconsistent and to the extent of the inconsistency would be invalid. It would not matter whether the Commonwealth Act and the State Act were on the same subject matter or not. However, when there is no direct inconsistency, but at the most that indirect inconsistency which is often called "covering the field", subject matter becomes very important. In the present case there is in my view no direct inconsistency. It must therefore be determined whether it appears from the terms, the nature or the subject matter of the Commonwealth Act that it was intended as a complete statement of the law governing the divulging or communication of information obtained by intercepting a communication passing over the telephone system, including a complete statement not only of what may not but also of what may be divulged or communicated in civil or criminal proceedings in a State court.

In my opinion the Commonwealth Act is not intended as a statement of what information obtained by interception of a communication passing over the telephone system may and what may not be divulged in evidence in civil or criminal proceedings in a State court. The Commonwealth Act speaks no further on the subject matter of the admissibility in evidence of intercepted telephone communications than is inherent in the general prohibition in s. 5 (3) on communicating or divulging information obtained by intercepting a communication passing over the telephone system. This general prohibition would apply to civil and criminal proceedings in a State court.

The question, however, remains whether s. 7 in its terms applies to the use of the extension telephone in the circumstances of this case. Section 7 of the State Act makes inadmissible evidence of a private conversation which has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of s. 4 of the Act. But s. 4, to the extent to which it applies to use of a telephone which is part of the telephone system as it is defined in the Commonwealth Act, is invalid by virtue of s. 109. Can a use of a telephone which is part of the telephone system as defined in the Commonwealth Act and which is permitted by that Act be said to be a use "in contravention of section four of this Act" (the New South Wales Act)? If the reference in s. 7 to s. 4 were no more than a specification of the form or forms of use of a listening device which are covered by s. 7, then it would not matter that s. 4 was invalid in its application to the particular listening device. But the language goes further. A condition of the application of s. 7 is that the use of the listening device be in contravention of s. 4 and, as I have already stated, the use of the extension telephone has not validly been made a contravention of s. 4. I therefore conclude that s. 7 had no application to the use of the extension telephone in the circumstances of this case. It was not a bar to the admission of the evidence.

For these reasons I am of the opinion that the appeal should be allowed. I agree with the orders proposed by the Chief Justice.

I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I agree with those reasons and the orders which he proposes. I have nothing to add. The appeal should be allowed and the other orders as proposed by the Chief Justice should be made.