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.