Resolution of the issues
15 I have carefully read the submissions provided by Mr Lange, and those provided on behalf of the Commonwealth. I have also carefully read Latham J's decision in R v Khazaal. In my view, not only can it not be said that Latham J's decision was in error: I would unhesitatingly say that it is plainly correct, and that I agree with it in all respects. Her Honour's reasoning is compelling in relation to the point at issue in the present application. I would merely add some observations of my own.
16 First, it is clear that the relevant certificate or certificates of Mr O'Brien are those that might be described as the "live" certificates. These are the certificates the prosecution will rely on at trial. On their face, those certificates are conclusive as to the legality of the interceptions. They are also conclusive, as Latham J observed, as to the certifier's consideration that the facts set out were relevant to the acts or things done by, or in relation to, Optus employees. That is the very matter stated by Mr O'Brien in the document upon which the Crown will place reliance at trial. In my opinion, there is nothing to suggest that this statement ought not be taken at its face value and given the weight it naturally bears. Indeed, this is one of the matters, which is certified conclusively by Mr O'Brien in terms of the certificate.
17 The underlying issue is - did Mr O'Brien turn his mind to all the necessary matters? He certificates conclusively that he did so in the document to be relied on at trial, and there is no external collateral basis to show that he did not so. In my opinion, essentially for the reasons given by Latham J, the "similarities" argument does not undermine the relevant validity of the certificates.
18 Secondly, the "revocation" argument does not establish a legitimate forensic purpose. The underlying question raised by Mr Lange's submission is - does the revocation suggest a cover up for an illegality? It is, of course, possible that there may have been an illegality, but leaving aside for the moment the question as to who may possibly have committed an offence in such a situation, the change in terminology in the "live" certificates suggests a positive and persuasive inference that, at least in relation to those certificates, Mr O'Brien certainly turned his mind to the relevant matters. This inference stands squarely against that contended for by Mr Lange in his submissions.
19 Thirdly, the cases relied upon by Mr Lange as analogously helpful do not, in my opinion, provide much assistance to the argument. I agree with Latham J that the decision of the Full Federal Court in Williams v Minister for Justice (2007) 239 ALR 689 may be distinguished. It involved as Latham J noted, a precondition to the exercise of an administrative decision. By way of contrast, s 18 of the TI Act is concerned simply with the proof of a matter of evidence. Williams involved clarification of the legal principles relating to the review of an administrative decision. At issue was legislation, which required the Minister for Immigration to hold a certain opinion about a person's conduct before being entitled to issue a document likely to lead to the person's extradition. The Minister simply had no power to issue the relevant notice if he did not have, in one manner or another, details of, or a summary of, the person's conduct. It was plain, from the material the Minister relied on to form his opinion, that he did not have such details or summary. In effect, he acted in a vacuum, and thus failed to satisfy the mandatory statutory conditions necessary to enable the discretion to be exercised.
20 This seems far removed from the present situation. Here, the Optus executive was entitled to form his own views about matters that were relevant in terms of his employees' actions in enabling the interception, (there were no statutory preconditions to the exercise of the power, nor were there any matters of limitation beyond those stated or necessarily implied by the language of s 18 of TI Act).
21 Mr O'Brien has conclusively certified that the particular matters are relevant. Certainly, they give every appearance of being relevant, indeed highly relevant, to the particular aspects the accused would like to challenge. Viewed in that light, the issue of the subpoena is properly seen as more in the nature of a disgruntled attempt to see if there might be more than meets the eye to the certificates. There is no reasonable basis, however, for thinking that Mr O'Brien did not consider that the certified matters were relevant, and his certificate proves conclusively that they were.
22 None of the matters sought to be relied on by Mr Lange in his argument, support the proposition that Mr O'Brien did not consider the appropriate range of relevant matters in terms of the certification. Rather, it appears quite clearly that he did give ample and proper consideration to the relevant matters in the "live" certificates. There is no suggestion he lacked the power or capacity to revoke the earlier certificates. Such a power clearly exists (s 33 Acts Interpretation Act (Cth) 1901).
23 Mr Lange also relied upon a series of taxation cases. A number of these invoked the well-known "Hickman principle" (R v Hickman: Ex Parte Fox and Clinton (1945) 70 CLR 598, 615 per Dixon J). There is no need for me to detail these decisions. They were relied upon by way of analogy, even though Hickman dealt with a privative clause, not an evidentiary certificate. Those decisions arose, however, within a very particular statutory context. The analogy, in my opinion, is so remote as to be of virtually no assistance at all.
24 The end result sought to be drawn from these cases, however, was to liken the present situation to the position where the Commission of Taxation had issued an assessment without turning his mind to the actual assessment or calculation of the taxpayer's income. Mr Lange argued that the tax cases demonstrated that a conclusive evidentiary certificate would not stand in such a situation, and that this would be so even where a "malicious" certification had not been demonstrated. Of course, at issue here is not an application to set aside the warrants - although that is contemplated - but a question as to legitimate forensic purpose.
25 In my view, however, Mr Lange's analogy breaks down at the precise point he argues that there is "well and truly" available an inference that the certifier in the present matter did not turn his mind to the facts he certified. I simply do not agree with this proposition. I have no doubt the belief is genuinely held by Mr Lange, but it is, in my view, not one reasonably available as an inference from the matters on which reliance has been placed. To adopt (and to adapt) the words of Brennan J in Alister v The Queen here the party believes and hopes that documents exist that may advance his position, but there is an absence of "reasonable grounds" so as to lead to a belief that the material exists.
26 In its reply submissions, the Commonwealth noted, however, that the authority of the decisions to which the accused made reference (the tax cases) had very recently been fundamentally undermined by the decision of the High Court in Commissioner of Taxation v Futuris Corporation (2008) HCA 32. This led to a flurry of additional written submissions on both sides, as to whether the Futuris decision achieved the result argued for by the Commonwealth. That point, however, is so remote from the present decision, for the reasons, I have given, that I will not attempt to resolve in any definitive or detailed way the differing submissions of the parties in that regard. It is simply not necessary for the purposes of my present task. It is an interesting, but in the end, unnecessary diversion.
27 This much, however, may be said: in 1995 the "Hickman principle" was considered by the High Court in a situation where the Tax Commissioner had issued assessments on an alternative basis to different taxpayers in respect of the same income (Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168). The Commissioner's actions, however, were not found to be wanting in validity. In the following year, the Federal Court (Spender, Burchett and Hill JJ) applied the Hickman principle, in reliance on Richard Water Pty Limited, to a sales tax issue. (Darrell Lea Chocolate Shops Pty Limited v Commissioner of Taxation (1996) 72 FCR 175). There, the Commissioner had issued assessments to the appellant in circumstances where the assessments were necessarily wrong, and were known to the Commissioner to be wrong. The Commissioner was held to be unable to issue assessments based on facts he knew to be wrong. It was, on that basis, an exercise that was not "bona fide". The assessments were set aside.
28 In Commissioner of Taxation v Futuris, the Commissioner was accused of breaching the Hickman principle, and acting without bona fides. The Commissioner was asserted to have engaged in "double counting" when issuing assessments. The High Court rejected the challenges and held that there was no jurisdictional error involved in the assessment process. The Commissioner had acted within jurisdiction. Two points were made for relevant purposes: first, a lack of bona fides was equated with "conscious maladministration" of the legislation (majority decision at [25] and [52]. Second, Dawson J (in Richard Walter Pty Limited) had rejected the application of the Hickman principle to the particular tax assessment, (Dawson J at p 222) either directly or by analogy. In Futuris, the majority adopted the reasoning and remarks of Dawson J. (Futuris at [58 to [70]). The scope of the Hickman principle will only apply to tax assessments where a jurisdictional error has occurred involving conscious maladministration. Otherwise in general litigation the evidentiary certificate will prevail.
29 This brief analysis emphasises that Mr Lange's use of the Hickman principle has no real value to the present issue, even by way of analogy. This is so because here Mr Lange does not assert "conscious maladministration" but merely inadvertence to matters within the statutory ambit.