Price v Fitzgerald

The Legislation 5 Part 1AA of the Crimes Act, dealing with search warrants and powers of arrest, was introduced into the legislation by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) ("Crimes Amendment Act"). The Crimes Amendment Act was based partly on the recommendations of the Review of Commonwealth Criminal Law, chaired by Sir Harry Gibbs: see especially Fourth Interim Report (November 1990); Fifth Interim Report (June 1991). It set up a new regime for obtaining and executing search warrants in relation to the investigation of Commonwealth offences and for related matters such as personal searches, the taking of fingerprints and identification procedures. 6 Section 3E(1) is within Part 1AA. It provides as follows: "3E(1) An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises." The expression "issuing officer" is defined by s 3C(1) of the Crimes Act (also within part 1AA) as follows: "issuing officer, in relation to a warrant to search premises or a person or a warrant for arrest under this Part, means: (a) a magistrate; or (b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be." 7 As originally enacted, Part 1AA of the Crimes Act contained no definition of the expression "magistrate". The only relevant definition was found in s 16C of the Acts Interpretation Act 1901 (Cth), as follows: "16C(1) Where, in an Act, reference is made to a Stipendiary Magistrate, the reference shall be read as including a reference to any Magistrate in respect of whose office an annual salary is payable. (2) Where, in an Act passed after the date of commencement of this section, reference is made to a Magistrate, the reference shall, unless the contrary intention appears, be read as a reference to: (a) a Chief, Police, Stipendiary, Registrar or Special Magistrate; or (b) any other Magistrate in respect of whose office an annual salary is payable." 8 Shortly before the Crimes Amendment Act was due to come into force on 1 December 1994, the view was apparently formed by those advising the Government that certain provisions of Part 1AA might be construed as conferring non-judicial power on judicial officers and thus contravene Chapter III of the Constitution. Accordingly, the Law and Justice Legislation Amendment Act (No 2) 1994 (Cth) ("Justice Amendment Act") introduced a definition of "magistrate" into s 3C(1) of the Crimes Act, as follows: "'magistrate', in sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZW, has a meaning affected by section 3CA." Section 3CA, also inserted into the Crimes Act by the Justice Amendment Act, provided as follows: "3CA (1) A function of making an order conferred on a magistrate by section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW is conferred on the magistrate in a personal capacity and not as a court or a member of a court. (2) Without limiting the generality of subsection (1), an order made by a magistrate under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW has effect only by virtue of this Act and is not to be taken by implication to be made by a court. (3) A magistrate performing a function of, or connected with, making an order under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member). (4) The Governor-General may make arrangements with the Governor of a State, the Chief Minister of the Australian Capital Territory, the Administrator of the Northern Territory or the Administrator of Norfolk Island for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZW." 9 Each of the sections referred to in s 3CA confers power on a magistrate (and only on a magistrate) to make orders of a particular kind. Section 3ZI, for example, empowers a magistrate to make an order that a so-called strip search be conducted on a young person aged between ten and eighteen years: see s 3ZI(1)(f), (2). A similar provision is made in s 3ZJ in respect of the taking of "identification material" such as fingerprints or photographs: see s 3ZJ(6), (7), (10), (11). Section 3ZK provides for the destruction of identification material after a period of twelve months, but empowers a magistrate to extend the period if there are special reasons for doing so. Section 3ZN empowers a magistrate to order that an identification parade be held for a suspect aged between ten and eighteen years: s 3ZN(3)(d), (4). Section 3ZW empowers a magistrate to make an order extending the period during which a thing seized in a search without warrant (s 3T) may be retained by a constable for the purposes of an investigation or prosecution: see s 3ZW(1), (2). 10 The second reading speech for the Law and Justice Legislation Amendment Bill (No 2) 1994 explained the reason for the enactment of s 3CA in these terms (Cth Parl Deb, HR, 16 November 1994, at 3635): "A number of the provisions in the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 confer on a court powers which appear to be neither judicial in nature nor incidental to judicial power. I am advised that it is likely that a court might construe the exercise of these powers as being in breach of the separation of powers required by the Constitution. This, in effect, would prevent courts exercising Commonwealth jurisdiction from using these powers. The amendments will ensure that the powers in question are conferred on magistrates acting in a personal capacity. The High Court has held that judicial officers, exercising federal jurisdiction and acting in a personal capacity may exercise non-judicial powers without breaching the Constitution."

The Submissions 11 The appellant's submissions rested on three propositions: (i) The Commonwealth Parliament has no power to confer on a State court a function which is neither a judicial function nor incidental to a judicial function. This is because s 77(iii) of the Constitution, which enables the Parliament to make laws investing any court of a State with federal jurisdiction, does not enable the Parliament to require State courts to exercise non-judicial power: Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144, at 151-152; Hilton v Wells (1985) 157 CLR 57, at 67 per Gibbs CJ, Wilson & Dawson JJ; The Queen v Murphy (1985) 158 CLR 596, at 613-616. (ii) The function of issuing a search warrant is an exercise of administrative not judicial power: Love v Attorney General (NSW) (1990) 169 CLR 307, at 320; Grollo v Palmer (1995) 184 CLR 348, at 359-360 per Brennan CJ, Deane, Dawson & Toohey JJ, 389; Ousley v R (1997) 192 CLR 69, at 79-80, per Toohey J; 87, per Gaudron J; 99-101, per McHugh J; 122, per Gummow J; 144-146, per Kirby J. (iii) Section 3E(1) of the Crimes Act, insofar as it empowers magistrates, as issuing officers, to issue search warrants purports to confer non-judicial power on a State court and is therefore ultra vires the Commonwealth Parliament. 12 The second respondent did not dispute the first two steps in the appellant's argument, but contended that the third was erroneous. The second respondent submitted that Parliament intended by s 3E(1) of the Crimes Act to confer power on magistrates as persona designata and not upon magistrates' courts or local courts as such. The provision therefore does not confer non-judicial power on a court, but on a particular person who happens to be a member of a court. A provision to this effect, so the appellant argued, does not infringe Chapter III of the Constitution. 13 Mr Temby QC, who appeared with Mr Aitken for the appellant, submitted that on its proper construction, s 3E(1) confers power on a court as such. He pointed out that s 3E makes no provision for magistrates to consent to exercise the powers in s 3E(1), nor for their protection when issuing warrants. He also noted that s 3E does not contemplate special arrangements being made with the States for the performance of functions under s 3E; and does not require applications for warrants to be dealt with separately from the exercise of a magistrate's judicial functions. These omissions (so he argued) pointed to the functions being conferred on courts, rather than on magistrates as designated persons. 14 Mr Temby relied on the amendments introduced by the Justice Amendment Act to support the appellant's argument. In particular, he relied on the fact that s 3CA(1) states unequivocally that the function of making an order under the sections specified in s 3CA is conferred on a magistrate in a personal capacity and not as a court or a member of the court. He submitted that it was significant that s 3E was not included in the sections specified in s 3CA(1). This omission, so he argued, showed that Parliament intended the general language in s 3E(1) to be read as conferring powers on magistrates in their capacity as members of courts and not on them in their personal capacity or as designated persons.

Reasoning 15 The "designated person" doctrine is an established component of Chapter III jurisprudence. It was accepted by all members of the Court in Hilton v Wells, although there were differences between the majority (Gibbs CJ, Wilson and Dawson JJ) and the minority (Mason and Deane JJ) as to whether the particular legislation conferred powers on a court or on designated persons. The doctrine has since been reaffirmed by the High Court in Jones v Commonwealth (1987) 71 ALR 497 and Grollo v Palmer, at 360-362. 16 Whether a power is conferred by statute upon a court or judge as such, or upon a designated person, is a question of construction. In Hilton v Wells the majority (at 72) described the approach to be taken to the task 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." 17 The legislation considered in Hilton v Wells (s 20(1) of the Telecommunications (Interception) Act 1979 (Cth) ("Interception Act")) provided that where, upon application being made to "a Judge", the Judge was satisfied of certain matters, "the Judge may, by warrant…authorize persons approved under [the Act] to intercept…communications". The expression "Judge" was defined by s 18 to mean, relevantly "(a) a Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory; or (b) a Judge of the Supreme Court of a State in respect of whom an appropriate arrangement in force under [the Act] is applicable…". 18 The majority held that the legislation was not intended to confer power on the Federal Court, but on individual judges of the Court as designated persons. Their Honours said (at 72-73) that, even if it were to be assumed that the fact that s 20 conferred power on a "Judge" gave rise to a prima facie presumption that it was conferred on the judge as such, the statute contained sufficient indications to rebut the presumption. 19 Their Honours identified three particular indications supporting this conclusion. First, it was clear that the power conferred on a Judge of a Supreme Court was conferred in his or her capacity as a designated person. This followed from the fact that an "appropriate arrangement" had to be made with the Governor of a State before a Supreme Court Judge could be eligible to exercise the power. Since when s 20 referred to "a Judge" it referred in some cases to a judge as a designated person, it was unlikely that Parliament intended in other cases to refer to a judge as such and thereby confer administrative functions on the Federal Court. Secondly, the nature of the power conferred was important in deciding whether the judge was intended to exercise it in his or her judicial or personal capacity. The majority stated (at 73): "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 a judge as a designated person." Thirdly, none of the provisions of the Federal Court of Australia Act ("Federal Court Act") 1976 (Cth) or of the Federal Court Rules was rendered applicable to the exercise of power granted by s 20. Nor did the Interception Act express any intention to invest the Federal Court with jurisdiction to issue warrants. Under s 20 of the Interception Act, the judge made no order and did nothing that could be enforced under the Federal Court Act. He or she simply granted a warrant, the effect of which depended entirely on the Interception Act. 20 If attention is paid to the language of s 3E(1), when read with the definition of "issuing officer", the reasoning of the majority in Hilton v Wells strongly supports the view that s 3E(1) of the Crimes Act confers power on a magistrate as a designated person and not as a member of a court. 21 First, the power in s 3E(1) is conferred on an "issuing officer". That term is defined in s 3C(1) to include two classes of person: a magistrate (who is a member of a court) and a justice of the peace or other person employed in a court who is authorised to issue search warrants (who is not a member of a court). It is true that, in this respect, ss 3 and 3E(1) of the Crimes Act are not identical to the statutory provisions considered in Hilton v Wells, where the term "Judge" was defined to include some judicial officers clearly selected as designated persons. But the position in this case is similar. Since the expression "issuing officer" in s 3E(1) of the Crimes Act includes persons who are plainly not members of a court, it is difficult to conclude that Parliament intended the expression to embrace a magistrate in his or her judicial capacity. 22 Secondly, the power conferred by s 3E(1) of the Crimes Act is clearly administrative in character, in the sense in which the majority used that term in Hilton v Wells. According to the reasoning of the majority, this supports the view that Parliament intended the power to be exercised by a magistrate as a designated person rather than as a member of a court. 23 Thirdly, the Crimes Act does not purport to invest magistrates' courts or local courts with jurisdiction to issue search warrants. Moreover, the effect of the warrant depends entirely upon the Crimes Act (see ss 3F, 3G) and is not enforceable as a court order. On the reasoning in Hilton v Wells, this is an important indicator that the power conferred on a magistrate as an issuing officer is conferred on him or her as a designated person. 24 Fourthly, s 20 of the Interception Act made no provision for Judges of the Federal Court to consent to exercise the powers conferred on them. Nor did the section provide for their protection or make special arrangements for the performance by them of their functions under the legislation. In these respects, s 20 of the Interpretation Act is similar to s 3E of the Crimes Act. 25 The conclusion that s 3E(1) of the Crimes Act is intended to confer powers on magistrates as designated persons is consistent with two High Court decisions referred to in Hilton v Wells. In Aston v Irvine (1955) 92 CLR 353, the Court was concerned with s 18(1) of the Service and Execution of Process Act 1901 (Cth) ("SEP Act"). Section 18(1) identified the class of persons who might issue warrants of apprehension as "a Magistrate, Justice of the Peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of [a] State or part of the Commonwealth." A unanimous Court observed (at 365) that although a magistrate could constitute a court of petty sessions, the legislation did "not invest him with authority in that capacity". It will be observed that the language of s 18(1) of the SEP Act is very similar to that of s 3E(1) of the Crimes Act, when read with the definition of "issuing officer" in s 3C(1). 26 By contrast, in Queen Victoria Memorial Hospital v Thornton, s 28 of the Re-establishment and Employment Act 1945 (Cth) ("Re-establishment and Employment Act") conferred administrative functions on "a court of summary jurisdiction constituted by a Police, Stipendiary or Special Magistrate". Another unanimous High Court pointed out (at 152) that this language "…does not take any magistrate as a designate person or as a person who with his own consent and that of the State, may be detached from the court to which he belongs and used for particular purposes. It is addressed to the court of summary jurisdiction as such." The language of s 3E(1) of the Crimes Act is much closer to that of the SEP Act than to that of the Re-establishment and Employment Act. 27 The question is then whether the inclusion of s 3CA in the Crimes Act, by the enactment of the Justice Amendment Act, leads to any different construction of s 3E(1). As Mr Temby pointed out, s 15 of the Acts Interpretation Act provides that every Act amending another Act shall, unless the contrary intention appears, be construed with the other Act and as apart thereof. This presumption perhaps gains force in the present case from the fact that the ancillary amending legislation (the Justice Amendment Act) came into force on the same day as the principal amending legislation (the Crimes Amendment Act). Even so, it is necessary to take account of the legislative history in order to ascertain whether the explicit directions in s 3CA are, by inference, to alter the meaning that otherwise would be given to s 3E(1). 28 In our view, the legislative history tells against the conclusion that Parliament intended s 3E(1) to confer power on a magistrate in his or her capacity as a member of a court. It is clear that the Justice Amendment Act was intended to overcome doubts that had been expressed concerning the validity of certain provisions contained in the Crimes Amendment Act. The second reading speech does not expressly identify which provisions were thought to be of doubtful validity. The likelihood, obviously enough, is that doubts had been expressed about the validity of the provisions specifically identified in s 3CA (that is, ss 3ZI, 3ZJ, 3ZK, 3ZN and 3ZW), but not about the validity of s 3E. This would explain the omission of s 3E from s 3CA. 29 The reason why doubts might have been expressed about the provisions specified in s 3CA but not about s 3E, is that the former are drafted in different terms and might have been thought more vulnerable to constitutional challenge. Section 3ZI, for example, provides, relevantly, that a young person may be subjected to a strip search only if "a magistrate orders that it be conducted": s 3ZI(1)(f). In deciding whether to make the order, the magistrate must have regard to the seriousness of the offence, the age or desirability of the person and such other matters as the magistrate thinks fit: s 3ZI(2). 30 These provisions differ from s 3E of the Crimes Act in at least two respects: · the power is conferred on a magistrate only, whereas s 3E confers powers on "issuing officers", a class which includes non-judicial officers; and · the magistrate is empowered to make "an order" which authorises the search to take place, whereas s 3E confers a power to issue a warrant to search. The view may have been taken that these differences would, or might be, sufficient to take the provisions outside the reasoning in Hilton v Wells. 31 However, the point is not whether the doubts as to validity were well founded, but that clarification was thought to be required of the effect of a number of provisions. In these circumstances, no inference can be drawn that Parliament intended s 3E to operate as a grant of power to a magistrate as a member of a court. To attribute that intention requires an assumption to be made that Parliament, having adverted to the constitutional question, deliberately chose to leave s 3E(1) vulnerable to constitutional challenge, when the very point of the Justice Amendment Act was to avoid any constitutional difficulties. Mr Temby was not able to offer any reason why Parliament should adopt such an apparently irrational course. Nor did he explain how the construction he advanced was consistent with s 15A of the Acts Interpretation Act, which requires every Act to be read and construed subject to the Constitution. 32 In our view, s 3CA is to be seen as a provision designed to put beyond constitutional challenge specific powers conferred by Div 4 of Part 1AA of the Crimes Act. It was not intended to alter the operation of s 3E(1) of the Crimes Act. That sub-section, as a matter of construction, confers powers on magistrates as designated persons. It therefore does not infringe Chapter III of the Constitution.

Conclusion 33 For these reasons, the appellant's challenge to the validity of s 3E of the Crimes Act fails. The appeal should be dismissed, with costs. I certify that the preceding thirty- three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: I D Temby QC and L J W Aitken

Solicitor for the Appellant: Colbron & Associates

Solicitor for the First Respondent R Beazley, Victorian Government Solicitor

Counsel for the Respondents (other than the First Respondent): D J Fagan SC and S Lloyd

Solicitor for the Respondents (other than the First Respondent) Commonwealth Director of Public Prosecutions

Date of Hearing: 11 February 2000

Date of Judgment: 18 February 2000