R v A2; R v KM; R v Vaziri

Supreme Court of NSW|2015-06-30|Before: Johnson J

Judgment

JOHNSON J: By Notice of Motion filed 2 June 2015, the Accused (A2, KM and Shabbir Mohammedbhai Vaziri) seek the exclusion of all evidence obtained pursuant to two interception warrants issued by a Federal Magistrate in August 2012 under the Telecommunications (Interception and Access) Act 1979 (Cth) ("TIA Act").
The short but important point raised on this application is whether a Federal Magistrate was authorised to issue interception warrants under the TIA Act.

The Criminal Proceedings

A brief outline of the charges against each Accused, and the nature of the Crown case, will suffice for the purpose of this judgment.
A2 is charged with the following offences: 1. between 18 October 2009 and 29 August 2012 at Wollongong in the State of New South Wales, mutilating the clitoris of C1 contrary to s.45(1)(a) Crimes Act 1900; 2. in the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900; 3. between 1 January 2012 and 29 August 2012 at Baulkham Hills in the State of New South Wales, mutilating the clitoris of C2 contrary to s.45(1)(a) Crimes Act 1900; 4. in the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900.
KM is charged with the following offences: 1. between 18 October 2009 and 29 August 2012 at Wollongong in the State of New South Wales, mutilating the clitoris of C1 contrary to s.45(1)(a) Crimes Act 1900; 2. in the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900; 3. between 1 January 2012 and 29 August 2012 at Baulkham Hills in the State of New South Wales, mutilating the clitoris of C2 contrary to s.45(1)(a) Crimes Act 1900; 4. in the alternative, between the same dates and at the same place, whilst in the company of another person, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) Crimes Act 1900.
Mr Vaziri is charged with the following offences: 1. between 12 August 2012 and 9 October 2012 at Sydney in the State of New South Wales, being an accessory after the fact to the commission by A2 and KM of the serious indictable offence of mutilating the clitoris of C1 contrary to s.45(1)(a) and s.347 Crimes Act 1900; 2. in the alternative, between the same dates and at the same place, being an accessory after the fact to after the commission by A2 and KM of the serious indictable offence of, whilst in company, assaulting C1 thereby occasioning to her actual bodily harm contrary to s.59(2) and s.347 Crimes Act 1900; 3. between 12 August 2012 and 9 October 2012 at Sydney in the State of New South Wales, being an accessory after the fact to the commission by A2 and KM of the serious indictable offence of mutilating the clitoris of C2 contrary to s.45(1)(a) and s.347 Crimes Act 1900; 4. in the alternative, between the same dates and at the same place, being an accessory after the fact to the commission by A2 and KM of the serious indictable offence of, whilst in company, assaulting C2 thereby occasioning to her actual bodily harm contrary to s.59(2) and s.347 Crimes Act 1900.
Each of the Accused is a member of the Dawoodi Bohra community, which is a world-wide sub-sect of Shia Islam.
A2 is the mother of C1 and C2. KM is a retired midwife. Mr Vaziri is a senior figure in the Dawoodi Bohra community and teaches at the Auburn Mosque.
It is the Crown case that female circumcision ("khatana") was performed on C2 (now aged nine years) and C1 (now aged 11 years) by KM in the presence of A2. The Crown alleges that the procedure undertaken in each case falls within the terms of s.45(1)(a) Crimes Act 1900.
It is the Crown case that A2 encouraged KM to perform the procedure with A2 being present during the procedure conducted upon each child. The Crown asserts that A2 is liable for the procedure conducted on each of the girls as she was an accessory before the fact, a principal in the second degree and a party to a joint criminal enterprise with KM.
It is the Crown case that KM was a principal in the first degree, being the person who carried out the procedure on each girl.
The Crown alleges that Mr Vaziri encouraged witnesses to lie in their police interviews and encouraged members of the Dawoodi Bohra community to tell police that they did not believe in or practise female circumcision. On the Crown case, such actions were performed, directly or indirectly, to assist A2 and KM in avoiding police detection. In this way, the Crown contends that Mr Vaziri was an accessory after the fact to the offences.
The trial of the Accused is scheduled to commence before a jury on 17 August 2015.
The Crown will seek to adduce evidence at trial of a number of conversations recorded pursuant to the two interception warrants presently under challenge.

Hearing of the Present Application

The hearing of this Notice of Motion proceeded before me on 30 June 2015. Mr Jordan SC and Ms Lewer of counsel appeared for the Accused. Leave was granted for the Commissioner of Police to appear and Mr Temby QC appeared for the Commissioner. Ms Williams appeared for the Crown.
An affidavit of Trudie Cameron affirmed 2 June 2015 was read for the Accused.
A bundle of documents was tendered by the Crown (Exhibit A).
There was no oral evidence. The parties had filed and exchanged written submissions on the application and counsel spoke to those submissions.
The sole issue addressed at the hearing and requiring determination, is the legal question whether the Federal Magistrate who issued the warrants had authority to do so.
In the event that the Court found for the Accused on that issue, further questions would arise as to whether s.75 TIA Act had any application (New South Wales Crime Commission v Vuletic [2005] NSWSC 614; 64 NSWLR 301) or whether any evidence obtained pursuant to the warrants was admissible after application of s.138 Evidence Act 1995.
It was agreed that these issues should be put to one side for the moment. If the Court found in favour of the Accused, it will be necessary to consider these matters at a later hearing.

Factual Matters Surrounding the Issue of the Warrants under Challenge

The facts relevant to this application are not in dispute.
As at August 2012, New South Wales Police were investigating the Accused with respect to the events giving rise to the charges now on foot against each of them. The Warrants
On 7 August 2012, Detective Senior Constable Denise Ross applied for two interception warrants with respect to two telecommunications services. On that day, Stephen Hugh Scarlett, a Federal Magistrate, issued warrants bearing the Nos. C09789-00-00 and C09790-00-00.
The opening paragraph in each warrant was in the following terms: "I, STEPHEN HUGH SCARLETT, an eligible Judge within the meaning of the Telecommunications (Interception and Access) Act 1979 (the Act), acting under section 46 of the Act, authorise interceptions of communications made to or from the telecommunications service mentioned above."
The balance of each warrant recited other matters, with the warrant to remain in force until 25 October 2012. Mr Scarlett signed each warrant with the words "An eligible Judge" appearing under his signature.
On 8 August 2012, recording and monitoring by officers attached to Strikeforce Longfield of the two telecommunications services began. Each warrant expired on 25 October 2012.
On 1 November 2012, Acting Assistant Commissioner Mark Hutchings issued, with respect to each warrant, a certificate under s.61(4) TIA Act confirming that each warrant was acted upon, with recordings being made as a result. The Second Schedule to each s.61(4) certificate identified the relevant warrant in the following way: "Warrant under section 46 of the Telecommunications (Interception and Access) Act 1979 issued to the New South Wales Police Force by Mr Stephen Hugh SCARLETT (Federal Magistrate), an eligible Judge, on 7 August 2012 in respect to telecommunications service [XXX]."
It may be taken that a number of significant conversations (in an evidentiary sense) were recorded pursuant to the interception warrants C09789-00-00 and C09790-00-00 issued by Federal Magistrate Scarlett on 7 August 2012. A schedule at Tab 2 of Exhibit A indicates (by highlighting) conversations upon which the Crown relies, which were recorded as a result of one or other of the challenged warrants.
It is not necessary to say more than this as the present judgment is confined to the legal question concerning the authority to issue the warrants in question. Consents and Declarations
A number of instruments made for the purpose of the TIA Act related to Federal Magistrate Scarlett. They are attached to the statement of Inspector Timothy Charles Lowe dated 18 June 2015 (Exhibit A, Tab 5). Given the issues requiring determination, it is appropriate to set out in full each of these instruments.
On 4 July 2001, the then Attorney-General for the Commonwealth of Australia, the Hon Daryl Williams, made a declaration under s.6D(3) TIA Act in the following terms: "I, DARYL ROBERT WILLIAMS, Attorney-General, acting under subsection 6(D)3 of the Telecommunications (Interception) Act 1979, declare the Federal Magistrates of the Federal Magistrates Court of Australia in relation to whom written consents are in force under subsection 6D(2) of that Act and whose names appear in the attached Schedule, to be eligible Judges for the purposes of that Act."
The schedule attached to the declaration of 4 July 2001 included the name "Stephen Hugh Scarlett".
On 5 April 2001, Federal Magistrate Scarlett had given his consent for the purpose of s.6D TIA Act: "I, Stephen Hugh Scarlett, a Federal Magistrate of the Federal Magistrates Court of Australia, a court created by the Parliament of the Commonwealth of Australia, hereby consent to be nominated under subsection 6D(3) of the Telecommunications (Interception) Act 1979 by the Minister for the time being administering the Act."
On 22 June 2006, the then Attorney-General for the Commonwealth of Australia, the Hon Philip Ruddock, made a declaration under s.6DB(1) TIA Act in the following terms: "I, PHILIP MAXWELL RUDDOCK, Attorney-General of the Commonwealth of Australia, acting under subsection 6DB(1) of the Telecommunications (Interception and Access) Act 1979, declare: • the Federal Magistrates listed in Schedule 1, • the judges of the Family Court of Australia listed in Schedule 2, and • the judges of the Federal Court of Australia listed in Schedule 3 to whom written consents are in force under subsection 6DB(2) of that Act, to be issuing authorities for the purpose of subsection 6DB(1) of that Act."
On 12 May 2006, Federal Magistrate Scarlett had given his consent for the purpose of s.6DB(2) TIA Act: "I, Stephen Hugh Scarlett, a Federal Magistrate of the Federal Magistrates Court, a court created by the Parliament of the Commonwealth of Australia, hereby consent under section 6DB(2) to be declared an issuing authority for the purposes of the Telecommunications (interception and Access) Act 1979."
The significance of these consents and declarations will become apparent shortly.

Outline of Submissions on the Application

Detailed written submissions were made by counsel in advance of the hearing. The transcript reflects oral submissions made on 30 June 2015. It is not necessary to set out in detail the submissions made. An outline will suffice. Submissions for the Accused
Mr Jordan SC emphasised the general prohibition on the interception of telecommunications, with lawful interception only permitted in prescribed circumstances and only under the authority of those persons entrusted by the legislature with the function of issuing interception warrants: ss.7 and 105 TIA Act.
It was submitted that s.46(1) TIA Act referred to an application for a warrant to be made to "an eligible Judge or nominated AAT member". No reference was made to Federal Magistrates in this provision.
Counsel referred to s.6D and the definitions therein of "eligible Judge" and "Judge". No reference was made in s.6D to Federal Magistrates.
Mr Jordan SC contrasted s.6DB, which provides for an "issuing authority" to issue a "stored communications warrant" under Chapter 3 of the TIA Act. Unlike s.6D, it was emphasised that s.6DB(1) makes express reference to "a Federal Magistrate".
Mr Jordan SC accepted that the Federal Magistrates Court was created by the Commonwealth Parliament for the purpose of s. 71 and 72 of the Commonwealth Constitution. However, he submitted that this did not resolve the present question of statutory construction. He submitted that Federal Magistrate Scarlett was not a Judge, and could not be an "eligible Judge", so that he was not authorised by s.46 TIA Act to issue the warrants.
It was submitted that the juxtaposition of "Judge" and "Federal Magistrate" in s.6DB TIA Act indicated that the legislature comprehended the difference between both offices, and intended to limit the power conferred upon Federal Magistrates. This power extended to "stored communications warrants" only and did not empower Federal Magistrates to authorise the interception of live communications as they pass over telecommunications systems.
It was submitted that the differences between Judges and Magistrates was reflected in s.16C of the Acts Interpretation Act 1901 (Cth).
Mr Jordan SC referred to the savings and transitional provisions with respect to past acts of Federal Magistrates in Schedule 2 to the Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth). He submitted that this saving provision confirmed, to avoid any doubt, that the amendments did not affect the validity of previous acts of Federal Magistrates. To the extent that previous acts of Federal Magistrates were valid, he submitted that they remained valid, but that the provision did not purport to retrospectively validate previous acts that were without lawful authority.
It was noted that the definition of "eligible Judge" in s.6D TIA Act was not amended by the Federal Court of Australia (Consequential Amendments) Act 2013 (Cth), which amended many statutes consequent upon the change in title of the Federal Magistrates Court to the Federal Circuit Court of Australia, effective from 12 April 2013.
It was noted that the definition of "issuing authority" in s.6DB TIA Act was amended by the 2013 Act by deleting the reference to "Federal Magistrate". It was noted that these consequential amendments included a saving provision in Item 514 of Schedule 1 to the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth), which provided that a thing done by a Federal Magistrate, as an issuing authority under the TIA Act before the commencement of this item was to have effect, after that commencement, as if it had been done by a Judge of the Federal Circuit Court of Australia as an issuing authority under the TIA Act.
Mr Jordan SC submitted that an important feature of this saving provision was that it dealt only with the previous eligibility of a Federal Magistrate to be an "issuing authority" under s.6DB TIA Act. If the legislature had intended that Federal Magistrates be empowered to issue interception warrants under s.6D, this ought to have been made clear at the time of the amendments.
It was submitted for the Accused that the scheme manifested the legislature's intention that private telecommunications may only be lawfully intercepted in tightly prescribed circumstances, and that the lawful authority of the persons entrusted by the legislature with the function of issuing such warrants being fundamental to the integrity of the legislative scheme.
Mr Jordan SC referred to provisions in the Bankruptcy Act 1966 (Cth). He drew attention to ss.5, 27 and 129A of that Act. He pointed to s.5(5) Bankruptcy Act 1966 (Cth) which states: "(5) To avoid doubt, a federal magistrate is taken to be a Judge of a Court having jurisdiction under this Act."
Reference was made as well to the Family Law Act 1975 (Cth) where a Family Law Council is provided for, consisting of "a judge of the Family Court and such other judges" (s.115(2)). Section 115(11) provided: "(11) For the purposes of this section, a federal magistrate is taken to be a judge."
Mr Jordan SC contended that deeming provisions of the type seen in the Bankruptcy Act 1966 (Cth) and the Family Law Act 1975 (Cth) are of assistance. They illustrate the way in which the Commonwealth Parliament has characterised Federal Magistrates as not being Judges unless they are, in effect, deemed to be so.
Mr Jordan SC relied upon Project Blue Sky Inc and Ors v Australian Broadcasting Authority ("Project Blue Sky") [1998] HCA 28; 194 CLR 355 at 388-391 [91]-[93], in support of the submission that the lawful authority of a person issuing an interception warrant was essential to the validity of such a warrant. He submitted that it was necessary to construe the relevant provision (s. 6D) so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky at 381 [69].
It was submitted that it was consistent with the prescriptive nature of the legislative scheme, and the limited circumstances in which telecommunications may lawfully be intercepted, that there should be certainty in relation to the validity of interception warrants. In this respect, reliance was placed upon R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 at 56-57 [283].
It was argued that the absence of authority for a Federal Magistrate to issue the challenged warrants was clear. However, to the extent that there was said to be any ambiguity, reliance was placed upon Coco v The Queen [1994] HCA 15; 179 CLR 427 at 436-437 in support of the proposition that any ambiguity should be resolved in favour of the Accused.
With respect to the declaration made by the Attorney-General, Mr Williams, on 4 July 2001 and the earlier written consent of Federal Magistrate Scarlett dated 5 April 2001 (see [32]-[34] above), it was submitted that these were administrative instruments only which could not have the effect of vesting Federal Magistrate Scarlett with the relevant authority to issue an interception warrant.
In essence, it was submitted that the fact that it may have been thought by the Executive in 2001 that Federal Magistrates (who had given consent) were capable of being "eligible Judges" for the purpose of s.6D, did not mean that the relevant power did exist.
It was submitted that the challenged warrants were invalid. Submissions for the Commissioner of Police
Mr Temby QC approached the issues in contest by commencing with some general submissions concerning the judicial power of the Commonwealth, and specific submissions concerning the history of the TIA Act including significant amendments.
Reference was made to ss.71, 72 and 79 of the Commonwealth Constitution. Provision was made for the judicial power of the Commonwealth to be vested in (relevantly) "such other federal courts as the Parliament creates" (s.71) with provision being made in s.72 for appointment of (relevantly) "Justices … of the other courts created by the Parliament", with s.79 providing that the "federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes".
It was submitted that, according to common usage of language, the words "Justice" and "Judge" are synonymous. It was submitted that it follows that any Justice of a court created by the Commonwealth Parliament is a Judge. The fact that some other title may be given, such as Federal Magistrate, did not matter.
The Federal Magistrates Court Act 1999 (Cth) commenced on 27 December 2000. It was submitted that s.8 of that Act made clear that the Federal Magistrates Court was a "federal court" created by that Act, with the Federal Magistrates Court to consist of "justices": s.8(4). Accordingly, it was submitted that Federal Magistrates were appointed, as required by the Commonwealth Constitution, as Justices of a court created by the Parliament.
Mr Temby QC took the Court to passages in Hilton v Wells [1985] HCA 16; 157 CLR 57 and Grollo v Palmer [1995] HCA 26; 184 CLR 348 to assist an understanding of the background to the TIA Act.
Mr Temby QC submitted that the terms "Judge" and "eligible Judge" in s.6D(1) TIA Act extended to Federal Magistrates who were Justices of a court created by the Commonwealth Parliament. Against this background, he submitted that the declaration dated 4 July 2001 of Attorney-General Williams, and the pre-existing consent dated 5 April 2001 of Federal Magistrate Scarlett, constituted clear authority for Federal Magistrate Scarlett to issue the challenged warrants.
It was submitted that the wording of later provisions, such as s. 6DB TIA Act, inserted in 2006, did not serve to undermine the proper construction of s.6D. It was submitted that the use of what he termed thorough and courteous language in s.6DB did not give rise to some implied narrowing in 2006 of the terms of s.6D.
It was submitted that the challenged warrants are valid. Submissions for the Crown
The Crown adopted the submissions of Mr Temby QC on the legal issues arising from the challenge to the warrants.

Decision Concerning the Challenge to the Warrants Federal Magistrates are Justices or Judges of a Court Created by Parliament

An appropriate starting point is the Commonwealth Constitution. The judicial power of the Commonwealth shall be vested (relevantly) "in such other federal courts as the Parliament creates": s.71. The origin of the Federal Magistrates Act 1999 (Cth) lies in this provision. So much was accepted by senior counsel for the Accused.
Section 72 of the Commonwealth Constitution provides for the appointment of (relevantly) "Justices … of the other courts created by the Parliament". Section 79 of the Constitution provides that the "federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes".
Section 8 Federal Magistrates Act 1999 (Cth) provided as follows: "8 Creation of Federal Magistrates Court (1) A federal court, to be known as the Federal Magistrates Court, is created by this Act. (2) The Federal Magistrates Court may also be known as: (a) the Federal Magistrates Service; or (b) the Federal Magistrates Court of Australia; or both. (3) The Federal Magistrates Court is a court of record and is a court of law and equity. (4) The Federal Magistrates Court consists of the following justices: (a) a Chief Federal Magistrate; (b) such other Federal Magistrates as from time to time hold office in accordance with this Act. Note: The Parliament may create federal courts under Chapter III of the Constitution."
Section 9 of that Act concerns personnel provisions relating to Federal Magistrates. Section 9 states that "Schedule 1 has effect". Schedule 1 to the Act makes extensive provision with respect to the appointment of Federal Magistrates.
The proper characterisation of the judicial status of Federal Magistrates has been considered in a number of cases. These cases assist the resolution of the present application.
In Re Bryant; Ex parte Guarino [2001] HCA 5; 178 ALR 57, Hayne J considered a challenge to the appointment of and exercise of certain powers by a Federal Magistrate. In dismissing the application, Hayne J said at 58-59 [7]-[8]: "7. Section 79 of the Constitution provides: 'The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.' Section 79 is, therefore, concerned with whether federal jurisdiction is to be exercised by a court constituted by one or by more than one judge. 8. Section 11(1) of the Act provides: 'For the purposes of the exercise of the jurisdiction of the Federal Magistrates Court, the Federal Magistrates Court is to be constituted by a single Federal Magistrate.' It is not arguable that this provision offends s 79. Indeed, it is a provision of the very kind for which s 79 is intended to provide. True it is, as Mr Guarino pointed out in oral argument, s 79 uses the word 'judges' and does not use the word 'magistrate'. Nevertheless, it is clear when regard is had to s 71 and the power given to the Parliament to create 'other federal courts' that the title given to the judicial officer by Parliament in creating such another federal court is not determinative of the constitutional reach of s 79 and the other provisions in Ch III. The constitutional reach of s 79 extends to the Federal Magistrates appointed to serve in the court created by the Parliament by the Act."
Hayne J stated at 60 [13]: "Finally, as for the last of the matters mentioned by the applicant in his affidavit, s 72 of the Constitution does, subject to some qualifications which need not now be noticed, permit the Parliament to fix an age as the maximum age for Justices of a court created by the Parliament. There is no reason to consider it arguable that the constitutional expression 'Justice of a court created by the Parliament' does not extend to Federal Magistrates. There is, therefore, no reason to consider that the provisions made in s 9 and Sched 1 of the Act about the term of office and conditions for resignation or removal from office of Federal Magistrates are invalid."
In Clark v Commissioner of Taxation [2008] FCAFC 51; 247 ALR 739, Branson and Sundberg JJ said at 747 [35]: "The Macquarie Dictionary relevantly defines a 'judge' as 'a public officer whose function is to adjudicate on matters brought before a court for decision'. It is therefore clear that the ordinary meaning of the word "judge" is broad enough to encompass a Magistrate holding office under the Magistrates Act. The Constitution itself reflects this broad meaning when, by s 79, it provides that the "federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes". The word "judges" in this context includes magistrates (Re Bryant; ex parte Guarino (2001) 178 ALR 57 at [8])."
The decision of Hayne J in Re Bryant; Ex parte Guarino has been applied as well in Simandl v Deputy Commissioner of Taxation [2008] FCA 450; 167 FCR 501 at 504-505 [8]-[15]. In State of South Australia v Totani [2010] HCA 39; 242 CLR 1; French CJ referred, at 40 [54] (footnote 183), to the decision of Hayne J in Re Bryant; Ex parte Guarino.
It is clear that Federal Magistrates appointed under the Federal Magistrates Act 1999 (Cth) were "Justices" and "Judges", with these terms having meaning for the purpose of ss.71, 72 and 79 of the Commonwealth Constitution. Construction of Relevant Provisions of the TIA Act
I turn to relevant features of the TIA Act. As originally enacted, the legislation was entitled the Telecommunications (Interception) Act 1979 (Cth). As will be seen, it became the TIA Act in 2006.
In its original form, s.20 Telecommunications (Interception) Act 1979 (Cth) empowered a "Judge" to issue a telecommunications warrant. Section 18 of that Act provided: "18. In this Part, 'Judge' means - (a) a Judge of the Federal Court of Australia or of the Supreme Court of the Australian Capital Territory; (b) a Judge of the Supreme Court of a State in respect of whom an appropriate arrangement in force under section 19 is applicable; or (c) a Judge of the Supreme Court of the Northern Territory who is not a Judge referred to in paragraph (a) and in respect of whom an appropriate arrangement in force under section 19 of this Act is applicable."
In Hilton v Wells, a majority of the High Court of Australia (Gibbs CJ, Wilson and Dawson JJ) held that s.20 was a valid enactment of the Commonwealth Parliament. The majority held that the non-judicial power involved in s.20 was not conferred on the Federal Court, but on the Judges individually as designated persons.
The decision in Hilton v Wells attracted controversy, to the point where there was an unsuccessful attempt to reopen the issue in Jones v Commonwealth of Australia (1987) 71 ALR 497.
Section 6D was inserted in the legislation by the Telecommunications (Interception) Amendment Act 1987 (Cth). In Grollo v Palmer, McHugh J referred, at 374, to the purpose behind the enactment of s.6D: "Although the Court held that s 20 was valid, the amendments to the Act in 1987 responded to some of the concerns of the minority in Hilton v Wells. The Explanatory Memorandum accompanying the amendments made it clear that the legislative purpose in inserting s 6D and creating the process for appointment of 'eligible Judges' by the Attorney-General was to: 'avoid any possible argument that the power given to eligible Judges to issue interception warrants ... is invalid because it amounts to the conferral of a non-judicial power on a court. The matter was considered by the High Court in Hilton v Wells [1985] HCA 16; (1985) 58 ALR 245, where a majority held that there is no necessary constitutional impediment preventing the Parliament from conferring non-judicial power on a particular individual who happened to be a member of a court. Proposed section 6D makes it clear that the power to issue warrants is conferred on individual persons or classes of persons declared by the Minister who happen to be Judges of a court created by the Parliament'."
Section 6D was in the following terms: "(1) In this Act, unless the contrary intention appears: 'eligible Judge' means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force; 'Judge' means a person who is a Judge of a court created by the Parliament. (2) A Judge may by writing consent to be nominated by the Minister under subsection (3). (3) The Minister may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act. (4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court."
In Grollo v Palmer, a majority of the High Court (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ) held that s.6D was a valid law of the Commonwealth. The majority explained (at 359-360) the nature of the power to issue interception warrants.
In the course of determining that the power to issue an interception warrant may be appropriately vested in a judicial officer acting administratively and as a designated person, the majority said at 367: "Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today's continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law's protection of privacy and property (both real and personal), be authorised to control the official interception of communications. In other words, the professional experience and cast of mind of a Judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. It is an eligible Judge's function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible Judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution."
In 1997, s.6DA was inserted, enabling the Minister to nominate in writing a person who holds certain specified appointments to the Administrative Appeals Tribunal ("AAT") to issue interception warrants.
As mentioned earlier, the Federal Magistrates Act 1999 (Cth) commenced on 27 December 2000. Within a few months, Federal Magistrate Scarlett gave consent on 5 April 2001 to be nominated under s.6D(3) (see [34] above). Thereafter, Attorney-General Williams on 4 July 2001 made a declaration under s.6D(3) declaring Federal Magistrates in relation to whom written consents were in force under s.6D(2), and whose names appeared on an accompanying schedule, to be eligible Judges for the purposes of the then Telecommunications (Interception) Act 1979 (Cth) (see [32]-[33] above).
I am satisfied that, as at 2001, Federal Magistrates were capable of being "eligible Judges" for the purpose of s.6D. The Federal Magistrates Court had been created by the Commonwealth Parliament pursuant to s.71 of the Constitution. Accordingly, Federal Magistrates were Justices (Judges) of a court created by Parliament. The fact that they were described as Federal Magistrates, and not Judges, does not undermine this conclusion.
The Telecommunications (Interception) Amendment Act 2006 (Cth) changed the name of the Act to the TIA Act. The 2006 Act also introduced the concept of stored communication warrants to be issued under s.116 TIA Act. The term "stored communication" is defined in s.5 TIA Act in the following way: "stored communication means a communication that: (a) is not passing over a telecommunications system; and (b) is held on equipment that is operated by, and is in the possession of, a carrier; and (c) cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier."
Accordingly, from 2006, the TIA Act provided for interception warrants (Chapter 2) and stored communication warrants (Chapter 3). A stored communication warrant could be issued under s.116 by an "issuing authority".
Section 6DB was inserted in 2006 to provide for issuing authorities. The section states: "6DB Issuing authorities (1) The Minister may, by writing, appoint as an issuing authority: (a) a person who is: (i) a judge of a court created by the Parliament; or (ii) a Federal Magistrate; or (iii) a magistrate; and in relation to whom a consent under subsection (2) is in force; or (b) a person who: (i) holds an appointment to the Administrative Appeals Tribunal as Deputy President, full-time senior member, part-time senior member or member; and (ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or a Territory; and (iii) has been enrolled for at least 5 years. (2) A person who is: (a) a judge of a court created by the Parliament; or (b) a Federal Magistrate; or (c) a magistrate; may, by writing, consent to be appointed by the Minister under subsection (1). (3) A person's appointment ceases to have effect if: (a) the person ceases to be a person whom the Minister could appoint under this section; or (b) the Minister, by writing, revokes the appointment. (4) An issuing authority has, in relation to the performance or exercise of a function or power conferred on an issuing authority by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court."
On 12 May 2006, Federal Magistrate Scarlett gave his consent to being declared an "issuing authority" for the purpose of s.6DB (see [36] above). On 22 June 2006, Attorney-General Ruddock issued a declaration for the purpose of s.6DB with respect to issuing authorities (See [35] above).
Accordingly, from 22 June 2006, Federal Magistrate Scarlett was authorised to issue stored communication warrants. Are Federal Magistrates "Eligible Judges" Under s.6D?
The essence of the argument for the Accused is that the 2006 amendments, including express reference to Federal Magistrates in s.6DB, support a conclusion that Federal Magistrates were not included as eligible Judges for the purpose of s.6D. A textual comparison between ss.6D and 6DB is invited to support this conclusion.
Mr Jordan SC serves to fortify this submissions by reference to provisions in the Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth) and the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth) (see [46]-[48] above).
I do not accept the submission for the Accused.
It is correct to observe that the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth) makes amendments to the TIA Act (Items 512-514 in Schedule) only with respect to s.6DB TIA Act. That may be explained upon the basis that the 2013 Act was directed to express references in other legislation to Federal Magistrates. I do not consider that the 2013 legislative provisions fortify an argument that Federal Magistrates were incapable (or no longer capable) of being "eligible Judges" for the purpose of s.6D.
Senior counsel for the Accused sought to rely upon s.16C Acts Interpretation Act 1901 (Cth) which stated: "16C References to Stipendiary Magistrate and Magistrate (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 be read as a reference to: (a) a Chief, Police, Stipendiary, Resident or Special Magistrate; or (b) any other Magistrate in respect of whose office an annual salary is payable. (3) A reference in an Act to a Magistrate does not include a reference to a Federal Magistrate."
Section 16C came into force in July 2003 and was repealed in April 2013. I do not consider that this provision provides any assistance concerning the proper construction of s.6D TIA Act and the question whether Federal Magistrates were capable of being "eligible Judges" for the purposes of that provision.
I have mentioned that submissions were made by reference to the Bankruptcy Act 1966 (Cth) and the Family Law Act 1975 (Cth). In my view, care must be exercised in considering an argument advanced by reference to provisions contained in entirely different legislation. I do not think that the terms of the Bankruptcy Act 1966 (Cth) or the Family Law Act 1975 (Cth) assist the resolution of the present question. The task of the Court is to construe the relevant provisions of the TIA Act.
I am satisfied that the statutory scheme, as it existed in 2001, accommodated Federal Magistrates being "eligible Judges" for the purpose of s.6D. For the reasons set out above, Federal Magistrates were Justices (Judges) of a court created by the Commonwealth Parliament to exercise the judicial power of the Commonwealth. There is nothing in the power to issue interception warrants itself which demanded that it be exercised only by a Judge of a superior court. This may be illustrated by the fact that, in 1997, nominated AAT members were included by the Commonwealth Parliament as persons having power to issue interception warrants: s.6DA TIA Act.
The skills to be brought to bear in the exercise of the warrant issuing function, as described by the majority in Grollo v Palmer at 367 (see [86] above), are possessed likewise by judicial officers serving as Federal Magistrates.
The fact that the Commonwealth Parliament has chosen, in 2006, to make express reference to Federal Magistrates in the context of creating a power to issue stored communication warrants, does not, in my view, undermine the conclusion that Federal Magistrates fell within s.6D. The Commonwealth Parliament used more elaborate and detailed language, in an omnibus provision, to describe categories of persons in s.6DB. The use of this mechanism should not operate to, in some way, confine the construction and operation of the pre-existing provisions in s.6D. No amendment was made to s.6D in 2006. It would be wrong to conclude that some implied or inferred alteration was made to s.6D as a result of the 2006 amendments, which did not touch s.6D at all.
I have kept in mind the approach to statutory construction in Project Blue Sky at 381-383 [69]-[71] and 384 [78]. I do not consider that there is any ambiguity in the wording of s. 6D that needed to be clarified by reference to later legislation. The earlier legislation (s. 6D) and later legislation (s. 6DB) did not deal with the same topic: R v Sieders; R v Somsri [2008] NSWCCA 187; 72 NSWLR 417 at 431 - 436 [118]-[135].
To the extent that the submissions for the Accused contend for a form of implied or inferred repeal or amendment of s. 6D following the introduction of s. 6DB, I have kept in mind the statement of Gaudron J in Saraswati v The Queen [1991] HCA 21; 172 CLR 1 at 17: "It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict.) (62), per Fullagar J, and per Windeyer J (63)."
There are not very strong grounds to support an implication that the Commonwealth Parliament, in 2006, intended to alter the construction and meaning of s. 6D, whilst leaving that section untouched. For reasons already expressed, I do not consider that the argument of the Accused is assisted by any other provision of statutes to which reference was made.
It is, of course, a matter of statutory construction as to whether Federal Magistrates fall relevantly within s.6D. However, it is, at least, noteworthy that the Attorney-General of the Commonwealth of Australia was acting in 2001 in a manner which accepted that Federal Magistrates were capable of being appointed as eligible Judges for the purpose of s.6D.
The construction urged on behalf of the Accused would, in my view, give rise to an unintended outcome. I do not accept this construction. I am satisfied that the proper construction of the legislation permitted Federal Magistrates, such as Federal Magistrate Scarlett, to be appointed as eligible Judges under s.6D.
In my view, this is the clear conclusion which ought be reached having undertaken the necessary process of construction.

Conclusion and Orders

The Accused have failed to demonstrate that the challenged interception warrants issued by Federal Magistrate Scarlett on 7 August 2012 are invalid.
The Notice of Motion filed on behalf of the Accused on 2 June 2015 is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2015

Federal Court of Australia (Consequential Amendments) Act 2013(Cth)

Federal Magistrates Act 1999(Cth)

Telecommunications (Interception) Act 1979(Cth)

Telecommunications (Interception) Amendment Act 1987(Cth)

Federal Circuit Court of Australia (Consequential Amendments) Act 2013(Cth)

Federal Magistrates Court Act 1999(Cth)

Telecommunications (Interception) Amendment Act 2006(Cth)

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