Catchwords                         CATCHWORDS

Criminal Law and Procedure - Warrants - Warrants issued by eligible Judges under Telecommunications (Interception) Act 1979 (Cth) and Customs Act 1901 (Cth) in relation to a practising barrister - Criminal trial pending in which evidence obtained under warrants is proposed to be adduced against the barrister - Federal Court applications challenging the validity of the warrants - Whether Federal Court has jurisdiction to review the decisions to apply for and issue the warrants - Whether the criminal trial court has jurisdiction to treat the warrants as being issued without jurisdiction or power - Whether Federal Court should exercise its discretion not to entertain the hearing of the application for judicial review - Whether warrants authorise the interception and recording of communications the subject of legal professional privilege - Whether failure of warrants to provide for or deal with the protection of privileged communications may invalidate warrant - Whether issue of law in relation to privilege is appropriate for determination by Federal Court - Whether other issues of mixed fact and law are appropriate for determination by trial court.

Practice and Procedure - Whether Federal Court proceeding speculative and foredoomed to failure - whether discovery and interrogatories should be ordered where applicant has no other evidence - Whether limited discovery and interrogation should be ordered in relation to uncontroversial facts relevant to determination of issue of law - Whether s.63(2) of the Telecommunications (Interception) Act 1979 prohibits inspection by the applicant of discovered documents - Whether general principles in administrative law proceedings should apply to telecommunication intercept or listening device warrants issued in secret.

Words and Phrases - meaning of "improper conduct".

Administrative Decisions (Judicial Review) Act 1977 ss.5(2), 6(2) and Schedule 1

Constitution s.75(v)

Customs Act 1901 (Cth) ss.219A, 219B and 219F

Judiciary Act 1901 ss.39B

Telecommunications (Interception) Act 1979 (Cth) ss.5(1), 6EA, 6L, 7, 45, 49(2) and 63

Flanagan v. Commissioner of Australian Federal Police and Others (1996) 60 FCR 149

Walton v. Gardiner (1993) 177 CLR 378

Kizon v. Palmer & Others (Northrop J, unreported 24 October 1995)

Bunning v. Cross (1978) 141 CLR 54

Hilton v. Wells (1985) 157 CLR 57

Second Life Decor Pty. Ltd. v. Comptroller General of Customs (1994) 53 FCR 78

Coco v. The Queen (1994) 179 CLR 427

The Queen v. Robinson (unreported, Court of Appeal of Supreme Court of Victoria 29 February 1996)

Re Wilcox (1996) 137 ALR 47

R v. Drake-Brockman (1943) 68 CLR 51

Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564  

Love v. Attorney-General for New South Wales (1990) 169 CLR 307

Craig v. The State of South Australia (1995) 184 CLR 163

Grollo v. Palmer (1995) 184 CLR 348

Re Rozenes: Ex parte Burd (1994) 68 ALJR 372

Melbourne Home of Ford v. Trade Practices Commission (1979) 36 FLR 450

W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 FLR 175

Australian Securities Commission v. Somerville (1994) 51 FCR 38

Carroll v. The Attorney General for New South Wales (1993) 70 A Crim R 162

Arno v. Forsyth (1986) 19 FCR 576

Carter v. Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121

Baker v. Campbell (1983) 153 CLR 52

Federal Commissioner of Taxation v. Citibank Ltd. (1989) 85 ALR 588 

O'Connell v. Palmer (1994) 53 FCR 429

Textile House v. Carmody (1976) 9 ALR 58

Kingston v. Keprose Pty. Ltd. (1987) 11 NSWLR 404

VG875\95 CHRISTOPHER JOHN CARMODY V. PAUL STEPHEN MACKELLAR & OTHERS.

 

 

MERKEL J.

MELBOURNE

5 SEPTEMBER 1996

Orders

ReasonsIN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION                      1995 No VG 875

 

B E T W E E N:

 

 

CHRISTOPHER JOHN CARMODY

                                                   Applicant

- and -

 

PAUL STEPHEN MACKELLAR

                                            First Respondent

 

PETER EDWARD PHILLIPS

                                           Second Respondent

 

ALLAN JAMES DAVID SHARP

                                            Third Respondent

 

COMMISSIONER OF POLICE,

AUSTRALIAN FEDERAL POLICE

                                           Fourth Respondent

 

KENNETH JOSEPH JENKINSON

                                            Fifth Respondent

 

CHARLES AUGUSTINE SWEENEY

                                            Sixth Respondent

 

DONNELL MICHAEL RYAN

                                          Seventh Respondent

Coram:    Merkel J.

Place:    Melbourne

Date:     5 September 1996

                    REASONS FOR JUDGMENT

 

                            INDEX

                                                    PAGE NO.

1.0  INTRODUCTION                                          2

2.0  THE WARRANTS                                          4

3.0  THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT        6

4.0  THE APPLICANT'S CLAIMS                                7

5.0  THE ISSUES ARISING ON THE MOTIONS                    11

6.0  THE LEGISLATIVE SCHEME                               13

6.1  THE CUSTOMS ACT 1901 (CTH)                           13

6.2  THE TELECOMMUNICATIONS (INTERCEPTION) ACT 1979 (CTH)16

7.0  JURISDICTION TO REVIEW THE VALIDITY OF WARRANTS - FEDERAL COURT OF AUSTRALIA                                            18

8.0  JURISDICTION TO REVIEW THE VALIDITY OF WARRANTS - THE CRIMINAL TRIAL COURT                                                23

9.0  FRAGMENTATION OF THE CRIMINAL PROCESS                27

10.0SHOULD DISCOVERY BE ORDERED?                         31

11.0LEGAL PROFESSIONAL PRIVILEGE                         36

12.0SECTION 63(2) OF THE TELECOMMUNICATIONS (INTERCEPTION) ACT 1979 (CTH)                                                     41

13.0IS THE PROCEEDING FOREDOOMED TO FAILURE?             48

14.0CONCLUSION                                           50

1.0  Introduction

The applicant, a barrister, is seeking to review 26 decisions in relation to the issuing of listening device warrants ("LD warrants") under the Customs Act 1901 (Cth) ("the CA") and telecommunications interception warrants ("TI warrants") issued under the Telecommunications (Interception) Act 1979 (Cth) ("the TIA").

Review is sought of the decisions to apply for and issue the LD warrants under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"), s.39B of the Judiciary Act 1901 and the accrued jurisdiction of the Federal Court. Decisions in relation to the issue of TI warrants are not decisions to which the ADJR Act applies by reason of Schedule
1 to that Act. Accordingly, review of the decisions to apply for and issue the TI warrants is sought under s.39B and the accrued jurisdiction of the Court.

The first three respondents to the proceeding are the officers of the Australian Federal Police ("the AFP") who made decisions to apply for the warrants. The fourth respondent is the Commissioner of the AFP. The fifth, sixth and seventh respondents ("the eligible Judges") separately issued the warrants in their capacity as Judges of the Federal Court who had consented to become Judges eligible to issue warrants under s.219AA of the CA and s.6D of the TIA respectively. The judicial respondents entered an Appearance but have not played any role in the proceedings.

The first four respondents ("the AFP respondents") have applied by motion for orders that the proceeding be dismissed or forever stayed.

The motions raise a number of important issues of principle which can now be resolved in the light of the decision of the Full Court in Flanagan v. Commissioner of Australian Federal Police and Others (1996) 60 FCR 149.

The applicant opposed the motion of the AFP respondents and has by his own motion sought discovery and leave to interrogate to enable him to prosecute his proceeding.

2.0  The warrants

During 1994 the applicant was in active practice as a barrister in the State of Victoria. At that time he was acting for a number of accused persons in criminal matters. Although his practice was carried on primarily at his chambers at 180 William Street, it is likely that he also carried out some professional work at his residential unit in East Malvern. He used a telephone service at his chambers and his unit as well as a mobile telephone service. The applicant alleges that he was in "the habit of conducting telephone conferences with clients of his practice".

On 5 July 1994 the first respondent decided to apply to one of the eligible Judges for three LD warrants which were issued on that date. The first two LD warrants were issued under s.219B(7) of the CA and authorised the use of a listening device in relation to "particular premises" being the applicant's residential unit and his chambers. The third LD warrant was issued under s.219B(5) and authorised the use of a listening device in relation to "a particular person" being the applicant, who was described in the warrant as a "Barrister at Law" and as residing at the unit. At the same time the first respondent also successfully applied to the eligible Judge for TI warrants in respect of the applicant's mobile telephone service and the telephone service at his unit. All of the warrants were to remain in force for a period of 90 days from 5 July 1994.

On 30 September 1994 the third respondent made application to another of the eligible Judges for new LD warrants in relation to the unit and the applicant and for new TI warrants in relation to the two telephone services. Each of the warrants applied for was issued for a period of 60 days from 30 September 1994. The LD warrant which was issued in relation to the applicant under s.219B(5) of the CA described the applicant in the same manner as the previous warrant which had been issued under that sub-section. No further LD warrants were issued in respect of the applicant's chambers.

On 24 November 1994 the second respondent applied for and obtained from the third eligible Judge two new LD warrants and two new TI warrants for periods of 90 days from that date.

Although new warrants were issued on each of the three occasions it is likely that on the latter two occasions the warrants were in substance an extension of those previously issued in relation to the applicant, his unit and the two telephone services. In each case the warrant issued was in identical or substantially identical terms to its predecessor.

The warrants were issued in the prescribed form which provided for a warrant to be issued subject to such "conditions or restrictions" as the eligible Judge sees fit to specify. Further, the TI Act and the CA specifically empower a Judge to specify "conditions or restrictions" in relation to
"interceptions under the warrant" (s.49(2), TI Act) or "in the warrant" (ss.219B(5) and (7), CA).

In each of the warrants issued on the first two occasions the provision for "conditions or restrictions" was crossed out and initialled by the eligible Judge. On the third occasion the eligible Judge wrote in the word "Nil" directly under the provision for "conditions or restrictions".

Pursuant to the warrants, some 3600 hours of communications were recorded. Those communications included confidential communications protected by legal professional privilege ("privilege"). The failure to make provision in the warrant for the protection of privileged communications constituted the main basis for the challenge to the validity of the warrants.

The 13 decisions to apply for the issue of the warrants and the 13 decisions to issue the warrants on the three occasions are the subject of the application for review in the present proceeding.

3.0  The criminal proceedings against the applicant

On 11 January 1995 the applicant and his wife were arrested and charged with being knowingly concerned in the importation and being in possession of a prohibited import, being heroin  and with trafficking a drug of dependence, also being heroin.

On 20 April 1995 a hand up brief for the committal hearing was served on the applicant. Committal proceedings against the applicant, his wife and a third alleged co-offender commenced on 15 November 1995. The evidence adduced included some tapes obtained from using listening devices and telephonic interception. On 15 December 1995 the applicant and his two alleged co-offenders were committed for trial.

On 24 April 1996 the applicant's arraignment hearing came on before Judge Hassett in the County Court. At the hearing an Indictment/Presentment listing a number of counts was filed in relation to the three accused. The offences were alleged to have been committed between 17 March 1994 and 11 January 1995.

The Indictment/Presentment listed in excess of 80 witnesses proposed to be called by the Crown at the trial. I was informed that a trial date of 3 March 1997 has been fixed.

4.0  The applicant's claims

The applicant's case may be divided into two parts. The first part is general and alleges that:

(a)  the information provided to the eligible Judges in support of the applications for the issue of the warrants did not satisfy the requirements of s.219B of the CA and s.45 of the TIA ("the inadequacy claims");

(b)  the applicants for the warrants breached their "duty uberrimae fidei to make full and frank disclosure" to the eligible Judges ("the non-disclosure claims").

Having regard to the reasons for decision in Flanagan at 213-218, to succeed in the non-disclosure claim it is likely that the applicant will have to establish mala fides in the sense there discussed.

Counsel for the applicant has in effect, conceded that the review sought on both of these grounds is foredoomed to failure in the absence of discovery in relation to the information provided to the eligible Judges. The concession arises from the fact that it appears that without discovery the applicant will not be able to put forward a factual basis for the allegations made.

The second part relates to the issue of legal professional privilege arising from the issue of warrants in relation to a barrister in active practice. The facts pleaded are:

      1.    The Applicant is and was at all material times -

           

            (a)   admitted to practice as a barrister and solicitor of the Supreme Court of Victoria;

 

            (b)   in active practice as a barrister;

 

            (c)   the occupant of professional chambers at Level 3, 180 William Street, Melbourne;

 

            (d)   the occupant of premises at Unit 1, 8 Basil Street, East Malvern;

 

            (e)   accustomed to and in the habit of conducting conferences with clients of his practice at his said professional chambers and elsewhere;

 

            (f)   accustomed to and in the habit of conducting telephone conferences with clients of his practice, including conferences on his mobile telephone and his home telephone.

 

1A.   In the course of conducting the conferences referred to in paragraphs 1(e) and (f) the Applicant and his clients were likely to and frequently did discuss matters giving rise to legal professional privilege.

 

....

 

69A.  (b)   that if each or any of the warrants ... applied for was granted, it was likely that a member or members of the AFP would listen to and/or record communications which were subject to legal professional privilege.

The applicant also made non-disclosure claims in relation to these facts and alleged a failure by the eligible Judges to give any or any proper consideration to the issue of legal professional privilege. These claims ("the factual privilege claims") involve questions of mixed fact and law, as their determination will involve enquiring into the knowledge, belief and bona fides of AFP officers concerning the applicant as well as some enquiry into the decision making process.

The factual privilege claims also appeared to be doomed to failure in the absence of discovery, as the applicant would be unable to put forward a factual basis for them.

Further, the evidence before me does not support the existence of a factual basis for these claims. It is apparent that on each occasion the eligible Judge issued a LD warrant under s.219B(5) in relation to a particular person being a "Barrister at Law". Other warrants related to the residence and telephones used by that person. The evidence before me also discloses that the information provided to the eligible Judge on the first occasion led him to state that any material intercepted which may be privileged should be marked with an asterisk. Similar information was likely to have been provided to the other two eligible Judges when "extending" or "renewing" the warrants. Further, on the first occasion a LD
warrant issued in relation to the applicant's chambers at 180 William Street. In these circumstances it is almost inevitable that, when they issued the warrants, the eligible Judges were informed of, considered and had regard to the occupation of the applicant. It is also probable that they gave some consideration to the issue of legal professional privilege.

At all events, the relevant matter on this aspect of the present applications is whether the applicant has established any basis for inferring that the eligible Judges may not have been informed of the applicant's occupation and of matters raising, at the least, the possibility of questions of legal professional privilege arising as a result of the issue of the warrants. For the reasons I have set out above and on the basis of the material before me that question must be resolved in the negative against the applicant.

The final issue is whether the decisions to apply for and issue the warrants, in failing to deal with or provide for the protection of legal professional privilege in the warrants, were in excess of the power conferred under the CA and the TI Act ("the legal privilege claim").

Essentially, this claim involves a question of law arising on uncontroversial facts, being the information disclosed to the eligible Judges which gave rise to the possibility, likelihood or inevitability of privileged communications being recorded or intercepted pursuant to the warrants.

The applicant seeks -

.    declaratory relief that the warrants were unlawful, void and of no effect with the consequence that the information obtained pursuant to the warrants was obtained unlawfully and is or ought to be prohibited from being given in evidence or otherwise used by the AFP respondents;

.    orders quashing or setting aside each of the 26 decisions, including the decisions to issue the warrants;

.    injunctions restraining the AFP respondents from giving in evidence or otherwise using information obtained pursuant to the warrants.

5.0  The issues arising on the Motions

The object or principal purpose of the applicant's proceeding is to prevent the information obtained pursuant to the warrants, from being given in evidence at his trial. Accordingly, a substantive issue raised by the proceeding is whether it is appropriate for the Federal Court, rather than the trial court, to entertain the challenge to the validity of the warrants for the purpose of controlling the admissibility of evidence proposed to be adduced at the criminal trial of the applicant. At the outset, that issue requires consideration of the jurisdiction of this Court and the trial court to resolve the challenge to the validity of the warrants.

The AFP respondents' primary submissions are that the applicant's proceeding should be dismissed or stayed at this stage on the grounds that the proceeding:

.    is an impermissible fragmentation of the criminal process: see Flanagan at 187;

.    is entirely speculative and "can be clearly seen to be foredoomed to fail": see Walton v. Gardiner (1993) 177 CLR 378 at 393.

It was also submitted that there was unreasonable delay. Although copies of some warrants were received in April 1995, copies of all of the relevant warrants were not received until 16 October 1995. The proceeding was issued on 15 November 1995. In my view no factual foundation for summary dismissal on that ground at this stage has been made out.

The applicant's motion for discovery was in response to the argument that the proceedings were entirely speculative. The applicant contended that it is inherent in the nature of the legislative scheme authorising the issue of LD and TI warrants that it will only be after discovery that an applicant is able to determine the factual foundation for any challenge to the validity of the warrants. However, he submitted that his proceeding was a bona fide challenge to the issue of the warrants and in a case such as the present that fact alone warrants discovery: see Kizon v. Palmer & Others (Northrop J, unreported 24 October 1995). Alternatively, the applicant contended that, at the least, the legal privilege claim was
not speculative, stood in a special category and warranted appropriate orders for limited discovery and interrogation.

The issues raised by the motions are inter-related. For example, if it is appropriate to dismiss the proceeding on the ground of fragmentation then it is inappropriate to allow the Court's processes to be used in aid of discovery to further advance the proceeding. On the other hand, if discovery is appropriate it would be inappropriate to dismiss the proceeding as speculative prior to discovery.

Before turning to the issues it is necessary to consider the legislative scheme.

6.0  The legislative scheme

6.1  The Customs Act 1901 (Cth)

It is unlawful to use a listening device without consent other than in accordance with a warrant (s.219B(1)). An eligible judge may issue a warrant authorising the use of a listening device in relation to a particular person or particular premises for the purpose of assisting enquiries in relation to narcotics offences as defined in s.219A. The warrants authorise entry for the purpose of using the listening device at the particular premises or at any premises where the particular person is or is likely to be (s.219B(5) and (7)).

Information obtained from the use of a listening device shall only be used for the purposes of narcotic enquiries by
officials of a Commonwealth law enforcement agency although the information may, with the authorisation of the chief officer of the agency, be used for the investigation of prescribed offences by federal or state police officers (s.219F). Prescribed offences mean narcotics offences and Commonwealth, State or Territory offences punishable by imprisonment of not less than 3 years (s.219A).

A person may also divulge or communicate information obtained by using a listening device in connection with a relevant proceeding (s.219F(3)) which includes a prosecution in relation to a prescribed offence (s.219A). In a prosecution for a prescribed offence the Court may refuse to permit information obtained by using a listening device to be given in evidence if satisfied it would be "unfair" to the accused (s.219F(4)).

Finally, records or copies of information obtained by virtue of a warrant are required to be destroyed when they are no longer required for a purpose authorised by the statute (s.219G).

Although it is unlawful to use a listening device without a warrant (s.219B) and use of information obtained in breach of s.219F is an offence with a penalty of imprisonment for 3 years, the CA does not contain a prohibition against the giving in evidence of information obtained from the unlawful use of a listening device.

A discretion is given to the trial court under s.219F(4) to refuse to admit evidence if it is "unfair". Also, depending on the facts of the particular case, the exclusion of such evidence may arise as a matter for the discretion of the trial court in accordance with Bunning v. Cross (1978) 141 CLR 54 to the extent it adds to the discretion under s.219F(4). In that regard the situation under the CA appears to be similar to that which applied to the TI Act prior to the 1987 amendments which enacted s.63(1): see Hilton v. Wells (1985) 157 CLR 57 at 77 per Gibbs CJ, Wilcox J and Dawson J.

Several observations may be made. First, the exclusion of information unlawfully or unfairly obtained from being given in evidence before a court in a proceeding for a prescribed offence, is a matter for decision by the trial Judge. It is difficult to conceive of circumstances in which this Court, as opposed to the trial court, would control the exercise of a s.219F(4) or a Bunning v. Cross discretion by the trial court: see Second Life Decor Pty. Ltd. v. Comptroller General of Customs (1994) 53 FCR 78 at 83-85 per Heerey J. However, it does not follow that this Court will not entertain a challenge by way of review under the ADJR Act or otherwise, to the validity of a warrant, which if made out, will found the basis to apply to the trial Judge for the exercise of those discretions. In that regard the validity of the LD warrant will be of critical significance in determining whether the use, disclosure or giving in evidence of information obtained pursuant to the warrant is unlawful or unfair.

Secondly, there is no express provision in the CA which prevents the disclosure or use of information obtained from the lawful use of a listening device which is subject to legal professional privilege, provided that the disclosure or use is for a purpose permitted under s.219F or is in connection with a relevant proceeding.

6.2  The Telecommunications (Interception) Act 1979 (Cth)

The scheme under the TI Act is quite different. Interception of a communication passing over a telecommunications system is unlawful under s.7(1) unless it is pursuant to a warrant or falls within one of the other limited circumstances set out in s.7(2).

A warrant may be issued under ss.45 or 46 if the information that would be likely to be obtained pursuant to it would be likely to assist in connection with the investigation by an agency (which includes the AFP) of a class 1 or class 2 offence as defined in s.5(1). The warrant which is to be in the prescribed form, authorises interception of communications made to and from the telecommunications service specified in the warrant (ss.45 and 46).

Section 63(1) provides that a person shall not communicate, use, record or give in evidence in a proceeding, information obtained by intercepting a communication save in accordance with Part VII. Part VII authorises, inter alia, the communication, use etc. of information obtained pursuant to a
warrant for a permitted purpose or in an exempt proceeding. A "permitted purpose" is defined in s.5 and enables use of information lawfully obtained, inter alia, for the investigation by the AFP or State Police of prescribed offences which are given an extensive definition in s.5. Exempt proceedings are defined in s.5B and include a range of prosecutions and other proceedings.

The following observations may be made. Unlike the CA, Part VII operates to prohibit a person communicating, using, recording or giving in evidence information obtained by intercepting a communication in contravention of s.7(1). To this extent the discretionary power of the trial judge to exclude evidence will be governed by the prohibition contained in s.63(1).

Secondly, as with the CA, there is no express provision preventing the interception pursuant to a valid warrant or the communication, use or disclosure of information obtained under the warrant which is subject to legal professional privilege, provided that it is for a permitted purpose.

As a result of the mandatory requirements of s.63(1) a determination that a TI warrant was invalid can be determinative of the admissibility of the evidence obtained pursuant to the warrant at the criminal trial: see Coco v. The Queen (1994) 179 CLR 427.

7.0  Jurisdiction to review the validity of warrants - Federal Court of Australia

Two important jurisdictional issues were raised in the submissions of the parties. Counsel for the AFP respondents submitted that judicial review of the warrants was unavailable in this Court. Counsel for the applicant submitted that there is doubt as to the jurisdiction of the trial court to review the validity of the warrants and that it was only this Court that had an unfettered jurisdiction to review.

In support of her submission as to the unavailability of judicial review in this Court, Counsel for the AFP respondents relied upon the following passage in relation to the review of a TI warrant by the Court of Appeal of the Supreme Court of Victoria (Phillips CJ, Calloway JA and Vincent AJA) in The Queen v. Robinson (unreported, 29 February 1996).

      Judicial review is nevertheless unavailable, by reason of a combination of statutory provisions, the most important being ss.3 and 9 of, and Schedule 1 to, the Administrative Decisions (Judicial Review) Act 1977. Once the judge is functus or functo officio, neither s.75(v) of the Constitution nor s.39B of the Judiciary Act 1903 affords relief against the judge as an officer of the Commonwealth. As Brennan, CJ., Deane, Dawson and Toohey, JJ said in Grollo's case at p.237, "[t]he decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information". at 29-30.

If their Honours had said no more than that difficulties may arise if the only relief sought on judicial review was relief against the eligible Judge under s.75(v) of the Constitution or s.39B of the Judiciary Act then that statement may be unexceptionable. However, their Honours went much further in apparently stating that judicial review under s.75(v) or s.39B
of a decision to issue a TI warrant is "unavailable". With respect to their Honours, I am unable to agree with that conclusion.

In Flanagan, which was apparently not considered by their Honours as it was decided only 4 weeks earlier than Robinson but after Robinson was heard, in my view the Full Court accepted that it had jurisdiction to review the decisions of the eligible Judge to issue the TI warrant under s.39B and grant appropriate relief including declaratory relief if the grounds in favour of invalidity had been made out. That conclusion must follow from the fact that the Full Court determined that it would be prepared to exercise its jurisdiction to review a decision to issue a TI warrant in an appropriate case if the review only involved the determination of a question of law.

Secondly, it is not correct to say that as the eligible Judge is functus officio, neither s.75(v) nor s.39B afford relief against the judge. As was said recently by the Full Court of the Federal Court in Re Wilcox (1996) 137 ALR 47 at 66 :

      Prohibition will not issue if the order the subject of prohibition is exhausted in the sense that all possible operation of it is at an end: see R. v. Hibble; Ex parte BHP Co. Ltd. (1920) 28 CLR 456 at 463 per Knox CJ and Gavan Duffy J. The test is not whether the Federal Court is functus officio or whether the order can no longer be enforced.

It is not a simple issue to determine whether all possible operation of the warrants is at an end. The warrants, or certified copies pursuant to s.61A of the TIA, are required to
be and will be adduced in evidence at the trial to establish that the evidence obtained pursuant to the warrants was lawfully obtained. In a limited sense the "operation" of the warrants as authorising interception as such may be at an end. On the other hand, the warrants (or certified copies) will be tendered in evidence. In that regard, their legal effect and validity will be relied upon to support the admissibility of evidence obtained pursuant to them.

If it was necessary for me to arrive at a conclusion it would be that all "possible" operation of the warrants is not yet at an end. However, I need not decide the question of jurisdiction on that basis as s.75(v) of the Constitution and s.39B of the Judiciary Act are not limited to prohibition or mandamus nor are they limited in the present case to relief against the eligible Judges. Section 75(v) and s.39B also confer jurisdiction on the Court if an "injunction" is sought.

In the present case the primary relief sought is an injunction to restrain the use, including the tender at the trial, of evidence and information alleged to have been unlawfully obtained pursuant to the warrants. When that relief is sought against AFP officers or the Commonwealth Director of Public Prosecutions there is jurisdiction to grant it under s.75(v) and s.39B: see Coward v. Allen (1984) 52 ALR 320 at 325 per Northrop J and Duff v. McCulloch (1986) 11 FCR 237 at 239 per Wilcox J.

Further, judicial review under s.75(v) or s.39B may be sought against the eligible Judges, the Commissioner of the AFP and, if thought necessary, the Commonwealth Director of Public Prosecutions as officers of the Commonwealth seeking prohibition of the tender or use of evidence in breach of s.63(1) of the TIA: see Coward and Duff. Further, the decision in R v. Drake-Brockman (1943) 68 CLR 51 is an example of prohibition being granted against parties other than the decision maker in order to ensure that the jurisdiction and relief granted under s.75(v) is effective. There is also jurisdiction to quash or set aside the warrants in aid of prohibition or injunctive relief.

The High Court and the Federal Court also have jurisdiction to grant declaratory relief in relation to the warrants. Recent decisions of the High Court in Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 at 581-2, 595-7, Johns v. Australian Security Commission (1993) 178 CLR 408 and Oil Basins Ltd. v. Commonwealth (1993) 178 CLR 643 discuss the width of the power to grant declaratory relief. In Ainsworth the majority of the Court said at 581-2.

      It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter....by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" of if "the court's declaration will produce no foreseeable consequences for the parties".

In the present case declaratory relief, for the reasons set out earlier would clearly produce "foreseeable consequences for the parties".

The passage cited by the Court of Appeal from Grollo's case relates to the "practical" rather than the "legal" difficulties of review as a result of the secrecy attending the decision making process, the absence of records in relation to the decision and the absence of reasons for the decision to issue a warrant. The High Court in Grollo said nothing about the availability of judicial review as a remedy if and when the veil of secrecy is pierced by the disclosure of the existence of the warrant to those whose privacy had been invaded by it.

Finally, the apparent conclusion of the Court of Appeal would result in LD and TI warrants being unreviewable for those having the most obvious entitlement to review. I am referring to individuals whose private communications have been intercepted and recorded pursuant to a warrant which has not led to any criminal charges against those individuals. An example arises in the present case in relation to the applicant's clients whose privileged communications have been intercepted and recorded. In my view there is nothing in the Constitution, s.39B or the legislative scheme in relation to warrants which immunises the warrants from judicial review for the benefit of those or any other persons in an appropriate case.

8.0  Jurisdiction to review the validity of warrants - the criminal trial court

Several decisions have left the entitlement of the criminal trial court to review the validity of a warrant in a state of some uncertainty. Indeed, as recently as Robinson at 32-3 the Court of Appeal stated it need not decide this point and left it open, although its dicta appeared to favour the trial court having jurisdiction to treat a warrant as invalid. As a result counsel for the applicant submitted that the only clearly established mode of review of the warrants' validity is by proceedings in this Court. That submission is of some significance as, if the trial court's lack of jurisdiction resulted in it being unable to effectively deal with the real issues of validity and inadmissibility, it may be unjust for this Court to exercise its discretion by declining to do so.

As the trial court in a criminal proceeding may not grant administrative law remedies as if it was a court with jurisdiction to judicially review a decision to issue a warrant, doubt has been expressed both in earlier and recent decisions as to the nature and extent of the trial court's jurisdiction in that regard. In my view it can now be accepted that in order to exercise its undoubted jurisdiction to ascertain whether evidence proposed to be adduced was lawfully obtained the trial court can determine whether there was jurisdiction or power to issue a warrant and therefore whether it constituted a valid authorisation in law to obtain the
evidence proposed to be adduced: see Flanagan at 187 and 204-213.

The earlier doubt related to whether a trial court was  entitled to treat itself as not bound by the decision of a judicial officer to issue a warrant. The doubt, in part, may have arisen as a result of the special position of judicial or court orders, particularly in a superior court of record. A decision of a superior court:

      "even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside": see Cameron v. Cole (1944) 68 CLR 571 at 590 per Rich J and Wilde v. Australia Trade Equipment Co. Pty. Ltd. (1981) 145 CLR 590 at 602 per Stephen, Murphy and Wilson JJ.

However, the issue of warrants even by State judicial officers is now accepted to be an administrative act and not an exercise of judicial power or a decision of a superior court. In Love v. Attorney-General for New South Wales (1990) 169 CLR 307 the High Court said in the joint judgment at 322-3:

      Once it is accepted that the warrant is not a judicial order, it becomes an instrument made pursuant to a circumscribed statutory authority.

A warrant made pursuant to a "circumscribed statutory authority" will be invalid and therefore void if made in excess of power or jurisdiction conferred by the statute: see Coco 444, 446 and 462.

The situation in respect of the review of an administrative decision made without or in excess of power or jurisdiction was considered in Craig v. The State of South Australia (1995)
184 CLR 163. In the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179-180 their Honours discussed the significant distinction between administrative and judicial jurisdictional error or excess of power:

      At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord diplock in In re Racal Communications Ltd.

      The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise of purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

 

      In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question with jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. (Emphasis added)

In the present case decisions to issue LD and the TI warrants, although made by eligible Judges, constituted administrative acts in the exercise of the executive and not the judicial power of the Commonwealth: see Grollo v. Palmer (1995) 184 CLR 348. There is nothing in the CA or the TI which provides for
such decisions or their review to be subject to any special principle or procedure. Accordingly, it follows that it must be open to a trial court in which the issue of the validity of a LD or TI warrant arises, to hear and determine that issue. If the court concludes that there has been jurisdictional error in the sense discussed in Craig, it will treat the decision to issue the warrant as invalid. The fact that the warrant was issued by a judicial officer is of no relevance to the broad jurisdiction of the trial court to determine that there has been jurisdictional error.

Although in my view, Flanagan is authority for that conclusion, it also follows from the decision of the High Court in Coco. In that case the Court held that the trial court wrongly admitted evidence obtained under an invalid warrant to use a listening device in accordance with an approval of a Judge of the Supreme Court of Queensland. The Court concluded that in giving approval the Judge had acted beyond his power or jurisdiction with the consequence that the warrant was void. There can be no doubt from the decision itself that administrative "jurisdictional" error by the Judge granting approval, in the sense discussed in Craig, was treated by the members of the Court as a matter for the trial Judge and where that Judge erred in treating the warrant as valid, for the appellate court: see Mason CJ, Brennan J. Gaudron J and McHugh J at 435, 443-4, 445-6, Deane and Dawson JJ at 446 and Toohey J at 462. As a result of the warrant being invalid the evidence obtained from it should have been held to be inadmissible by reason of the statutory prohibition against its use contained in s.46(1) of the Invasion of Privacy Act 1971 (Q). Section 63(1) is the relevant counterpart in the TIA. On that basis the High Court upheld the appeal to it and quashed the appellant's conviction.

Section 9 of the ADJR Act does not operate to inhibit or impede in any relevant way the exercise by the trial court of its jurisdiction to exclude evidence on the ground of an invalid warrant. That section merely deprives State courts of jurisdiction to review administrative decisions under Commonwealth legislation by way of injunction, prerogative or statutory writ or by the making of a declaratory order. Nothing in the TI Act or the CA evinces an intention to exclude warrants from examination or review by a trial court or otherwise.

It must follow that all of the issues relating to invalidity and any consequential exclusion of evidence which are sought to be agitated in this proceeding are capable of being dealt with in the ordinary course of the criminal proceeding. Accordingly no apparent injustice arises if those issues are left for determination by the trial court, and if there is error, by an appellate court.

9.0  Fragmentation of the criminal process

As both this Court and the trial court have jurisdiction to deal with the real issues relating to the validity of the warrants and the exclusion of evidence, the general principle against fragmentation of criminal proceedings clearly applies in the present case. The issue then arising is whether:

(a)  any of the applicant's claims fall within any of the recognised exceptions to the general principle; and

(b)  it is appropriate that this Court, rather than the trial court, determine those claims.

As was restated in Flanagan it is well established that criminal proceedings should not be fragmented by other courts entertaining, except in exceptional or extraordinary circumstances, applications of various kinds by or against one or more of the participants in the criminal proceedings. After discussing the problems and injustice inherent in delaying the criminal process, the Full Court in Flanagan discussed exceptions to the general principle. At 188 the Court drew a distinction between:

(a)   claims for relief involving pure questions of law, emerging from a context of undisputed facts, especially questions the resolution of which may clarify the law for other cases;

and

(b)   claims based substantially on contentious matters of fact, including questions of mixed fact and law.

The Court then said:

      Prima facie there is much to be said in favour of the courts, in the exercise of their discretion, hearing and determining claims of type (a), above, if they are brought forward at an appropriate time. Where the facts are simple and few and the point is one of law, a claim may, as an exception of the fragmentation principle, be entertained on an application for judicial review, even if it could affect the admissibility of evidence (see, eg. Young v. Quin (1985) 4 FCR 483; cf Sankey v. Whitlam at 25-26. Equally, the courts do not ordinarily entertain claims of type (b), above, because the fragmentation of the criminal process which is involved is not outweighed by any real benefit that might flow from the collateral resolution of the issue (see, eg, Quin at 493).

In Flanagan the Court held that the following claims in that case fell within category (a):

      .     Whether the applicant had standing to apply for the TI warrant.

 

      .     Whether there existed an application in writing for the TI warrant.

 

      .     Whether the TI warrant contained "short particulars" of the relevant offences.

 

      .     Whether the scope of the TI warrant exceeded what the legislation permits a TI warrant to authorise.

 

      .     Whether the applicant's affidavit was inadequate to entitle the eligible Judge to issue the TI warrant.

and the following claims fell within category (b):

     .     Whether the application for the TI warrant was vitiated by an improper purpose.

 

      .     Whether the TI warrant was invalid by reason of the failure of the AFP to disclose material matters.

In the present case only two claims may fall within category (a); they are the inadequacy claims and the legal privilege claim.

In my view the remaining claims being the non-disclosure claims and the factual privilege claims are likely to raise some contentious issues of fact and questions of mixed fact and law and fall within category (b). Those claims ought to be determined in the usual course by the trial court.

In Flanagan the Court determined that it was appropriate for it to resolve the category (a) claims as they involved "pure questions of law". In that case there had been extensive pre-trial interlocutory processes and the matter came on for a final hearing before a Full Court. The fragmentation issue was
first argued at the final hearing. The date of the criminal trial had been adjourned to enable the Full Court to consider the issues raised before it.

In those circumstances there was obviously much to be said in favour of the interests of justice being served by the Full Court resolving the questions of law that had been argued and which it determined as appropriate for resolution before it. However, it does not follow that merely because a case raises a pure question of law that that question is one which is appropriate for determination by way of review in this Court, rather than in the course of the criminal process. Each case will have to be determined on its own facts. However, it is appropriate for a fragmentation issue to be raised at an earlier, rather than a later, stage of the proceedings and for the issue to be determined as soon as the real issues arising in the proceeding are clear.

In the present case, if the only category (a) claims were  the inadequacy claims and the determination of those claims by this court had the potential to delay the trial, that factor would militate in favour of the trial court rather than this court determining that issue. However if all of the facts necessary to enable those claims to be determined were to be before the Court to enable it to determine other category (a) claims which were regarded as appropriate for determination by it, that would approximate the situation in Flanagan.

It is sufficient for present purposes to conclude that the inadequacy claims and the legal privilege claims are capable of being exceptions to the fragmentation principle. However, the point to be made is that it does not follow that by merely being capable of being exceptions an applicant is entitled to have those claims determined by this Court rather than the trial court or in the usual course of the criminal process: see Re Rozenes: Ex parte Burd (1994) 68 ALJR 372 at 373.

Whether such claims remain in the Court for determination depends on the Court's discretion, whether the applicant is entitled to discovery and whether the claims should be struck out as speculative or misconceived.

10.0Should discovery be ordered?

The question then arises whether discovery should be ordered in respect of the inadequacy and the legal privilege claims.

The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v. Trade Practices Commission (1979) 36 FLR 450, W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 FLR 175 and Australian Securities Commission v. Somerville (1994) 51 FCR 38.

.    the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;

.    the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought;

.    if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;

.    the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;

.    if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.

The nature of the case is of particular relevance when the challenge is made to a decision made in the secret exercise of investigatory powers such as the issue of LD or TI warrants. Decisions to issue such warrants have been described as:

      "for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information." Grollo v. Palmer at 367 per Brennan CJ, Deane, Dawson and Toohey JJ.

It would be an odd result if the practical difficulties referred to by their Honours in reviewing such decisions by reason of their secrecy, were fortified by the imposition of unrealistic criteria for discovery, which for practical purposes, further immunised the decisions from review. Such an outcome would tend to render nugatory the statutory entitlement to review such decisions conferred under the ADJR Act or under s.39B. The Federal Court's authority has been interposed between state and citizen under those provisions inter alia to ensure that any intrusions into fundamental rights, including those of privacy, are only those which are lawful and authorised by statute. See Carroll v. The Attorney General for New South Wales (1993) 70 A Crim R 162 at 175 per Kirby ACJ.

It would be a matter of concern if the secrecy of the processes by which warrants were issued effectively immunised that process from judicial review as a result of an applicant failing to achieve the factual threshold necessary to persuade a court to order discovery.

The difficulty in that regard is that the decisions in Melbourne Home of Ford and W.A. Pines related to ex parte decisions to exercise coercive investigatory powers albeit under different statutory provisions. The nature of the case in relation to LD or TI warrants may justify the exercise of the discretion to order discovery in an appropriate case if some evidence or some other appropriate basis is put forward for suspecting that the warrants might have been issued unlawfully. Put another way a threshold in such cases remains but it may be a lower one. For example if an applicant deposes to facts that suggest there may have been no adequate justification for the issue of the warrant or that the applicants were not bona fide, that may suffice.

The applicant endeavoured to establish an evidentiary basis for challenging the warrants. The basis was that the Crown's case as it is now known only relates to events which post-dated the issue of the first warrants. The implication was said to be that therefore there was no proper basis for the warrants. However, the Affidavit filed to establish those matters also established that prior to the date of the first warrants, being 5 July 1994:

.    there was relevant information from an undisclosed source;

.    there had been a "controlled buy"; and

.    there had been surveillance of and enquiries made about the applicant.

In addition the counts in the Indictment/Presentment relate to alleged offences which pre-date 5 July 1994. These circumstances distinguish the present case from the ex tempore decision of Northrop J in Kizon v. Palmer, in which his Honour ordered discovery of the material relied upon for the issue of a TI warrant, as he was satisfied that the claim of inadequacy of material before the eligible Judge was bona fide and not merely fishing.

In the present case I am not satisfied that the evidence adduced takes the inadequacy claims outside of the realm of speculation. I should add that I also regard as relevant to the exercise of my discretion the fact that the decision to
refuse discovery does not prevent these claims from being raised and pursued in the trial court.

The legal privilege claim stands in a different category. There is an evidentiary basis for the challenge to the validity of the warrants on this ground, the claim is bona fide and not merely fishing and the determination of it will be aided by discovery in relation to the information provided to the eligible Judges which relates to the privilege issue. However, counsel for the AFP respondents has submitted that the claim is without substance. There is also the possibility that determination of the privilege claim in this Court might delay the trial. These matters are relevant to the discretion of the Court to entertain the claim and order discovery in relation to it.

Before considering these matters I should indicate that if I had not determined that the two category (b) claims ought not to be entertained by the Court by reason of the fragmentation principle, I would have refused the application for discovery in relation to those claims for the same reasons as my refusal to order discovery on the inadequacy claims. All 3 groups of claims consist of bare allegations without any evidentiary basis to support them. The applicant in the present case stands in the same position as the appellant in W.A. Pines. As Lockhart J said at 191 in that case:

      "The appellant is seeking to use the weapons of discovery and interrogatories to find out if it has a case of which it presently knows nothing."

I turn to consider the legal privilege claim.

11.0Legal professional privilege

Counsel for the AFP respondents submitted that neither the CA, the TIA or the circumstances of the present case imposed any obligation or duty on the eligible Judges to deal with or provide for the protection of legal professional privilege when issuing the LD and TI warrants: see Arno v. Forsyth (1986) 19 FCR 576. It was also submitted that the warrants did not and could not properly deal with that issue as they related to communications which have not yet occurred. Accordingly, so it was said, there is no basis in law for the contention that the warrants were invalid.

The riposte of Counsel for the AFP applicant was that:

.    it was an inevitable or likely consequence of the issue of the warrants that communications protected by legal professional privilege would be recorded and intercepted by officers of the AFP;

.    neither the CA nor the TIA expressly or impliedly authorised the issue of warrants which permitted the recording or interception of privileged communications;

.    the warrants authorised the recording and interception of privileged communications and accordingly were invalid and unlawfully issued.

The present motions do not require me to decide between the competing contentions. For present purposes it is only
necessary for me to determine whether the applicant's contentions and the consequential relief he seeks on this ground involve a question of law which ought to be determined by this Court.

In my view the applicant's case for invalidity on this ground does raise substantial and important questions of law which ought to be determined by this Court. I will endeavour to state my reasons for that conclusion.

The role of legal professional privilege was discussed recently in Carter v. Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121 in the following terms:

      Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is "a practical guarantee of fundamental, constitutional or human rights". By protecting the confidentiality of communication between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality. at 161 per McHugh J.

    

      The fundamental principle is now so well entrenched in the common law of this country that it should not be overturned or significantly curtailed by the courts, in the absence of compelling legal considerations. Indeed, so much has been expressly recognised on a number of occasions in this Court where it has been acknowledged that "legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision" and that, any curtailment of the operation of the privilege "is for the legislature, not the courts". at 138 per Deane J.

In the present context it is to be noted that communications within the crime/fraud exception to legal professional privilege are excluded from the reach of the privilege and therefore there is no impediment to such communications being intercepted or recorded under a warrant. In Carter at 134-135 Deane J said:

      In particular, the privilege does not extend to communications or documents made or brought into existence for the purpose of, or as part of the process of, crime, fraud, abuse of statutory powers or, in some circumstances, defeating or frustrating the administration of justice by the courts. For present purposes, a critical characteristic of those "exceptions" is that they are exclusions from the reach of legal professional privilege rather than exceptions to the scope of the protection which it affords. They are directed to circumstances in which the privilege does not attach with the result that the particular communication or document is not protected by legal professional privilege at all.

The High Court considered the operation of legal professional privilege in relation to search warrants in Baker v. Campbell (1983) 153 CLR 52. In Arno at 587 Lockhart J restated the principles for which Baker v. Campbell is authority: Notwithstanding some divergence in approach between the justices who constituted the majority, the case is authority for the following propositions:

      -     the doctrine of legal professional privilege is not confined to judicial and quasi-judicial proceedings but extends to administrative proceedings and to the extra judicial processes of search and seizure;

 

      -     the doctrine is not merely a rule of evidence, but is part of the federal common law attaching to federal statutory powers of search and seizure unless excluded expressly or by necessary implication;

 

      -     section 10 of the Crimes Act evinces no intention to exclude the common law rule;

 

      -     section 10 should be construed as not including, in the things which it authorises to be inspected or seized, documents whose confidentiality would be protected in the courts by the doctrine of legal professional privilege.

Decisions in this Court have not finally resolved whether and if so how, a search warrant ought to deal with or provide for the protection of privilege in an appropriate case or provide for the resolution of a dispute over privilege: see Arno v. Forsyth at first instance (1985) 9 FCR 537 and before the Full Court at 576, Federal Commissioner of Taxation v. Citibank Ltd. (1989) 85 ALR 588 and Croft v. Jumeau (1990) 22 FCR 276; see also Allitt v. Sullivan 1988 VR 621. As a practical matter privilege in relation to items seized pursuant to a search warrant is resolved by a court determining claims of privilege in respect of items seized prior to their inspection by the law enforcement officers executing the warrant. In that way privilege and confidentiality are both maintained.

However, the situation with privileged communications recorded or intercepted pursuant to LD or TI warrants is different.

There is force in the submission of the applicant, that as with the statutory provisions considered in Baker v. Campbell, the provisions in the CA and the TIA authorising the issue of warrants do not evince any intention to oust the privilege and therefore do not authorise the interception or recording of privileged communications. The difficulty is that the warrants only authorise the recording or interception of future communications. Privilege attaches to a communication only when it comes into existence: see Baker v. Campbell at 96 per Wilson J. Therefore whether a communication is privileged can only be determined when the recording or interception is occurring or has occurred. In Coco at 438 Mason CJ, Brennan, Gaudron and McHugh JJ said:

      The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasise that the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming
inoperative or meaningless. However, it would be very rare for general words in statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope.

It may be that an implication arises from the fact that it is inherent in the nature of LD and TI warrants that the statutes authorise the interception or recording of privileged communications and that any protection of privilege is to be by the imposition of appropriate conditions or restrictions in the warrant. Whether a legal obligation to do so exists may depend initially on the determination of whether, on the facts disclosed, it is likely or inevitable rather than merely possible, that privileged communications will be intercepted or recorded. If such an obligation exists it will raise the question of the consequences, if any, which follow if it has not been complied with.

On the other hand if, as is submitted by the applicant, the statutes do not authorise the interception or recording of privileged communications then it may be that such communications cannot be and have not been authorised to be intercepted or recorded by the issue of TI or LD warrants: see Love at 323. Accordingly, so it might be said, the warrants did not authorise infringement of privilege with the consequence that if privileged communications have been intercepted or recorded under the warrants there was no legal authority to do so. That consequence may impugn the conduct of intercepting or recording of privileged communications but not the validity of the warrants.

I have set out the nature of the privilege issues requiring resolution as they demonstrate that the resolution of those issues is a matter of substance, can have important consequences in other cases and has implications for the issue of LD and TI warrants in the future.

The resolution of the legal privilege claim will depend on the facts disclosed to the eligible Judges in relation to the matters set out in paragraphs 1, 1A and 69A(b) of the applicant's Statement of Claim.

In my view the legal privilege claim is appropriate for resolution in this Court and limited discovery should be ordered to enable that to occur subject to the AFP respondents' submissions based on s.63(2) of the TIA.

12.0Section 63(2) of the Telecommunications (Interception) Act 1979 (Cth)

The AFP respondents submitted that if I was otherwise disposed to order discovery, I should not do so in respect of the TI warrants as the amendments made to the TI Act by Act No. 141 of 1995 would result in any inspection of discovered documents contravening s.63(2) of the Act.

In order to deal with that submission it is necessary to examine the changes brought about by the amending Act. It enacted s.63(2) which provides:

     

      "(2)  Subject to this Part, a person must not, after the commencement of the subsection:

 

            (a)   communicate designated warrant information to another person; or

            (b)   make use of designated warrant information; or

            (c)   make a record of designated warrant information; or

            (d)   give designated warrant information in evidence in a proceeding."

Section 6EA defines designated warrant information as:

      (a)   information about any of the following:

 

            (i)   an application for a warrant;

            (ii)  the issue of a warrant;

            (iii)the existence or non-existence of a warrant;

            (iv)  the expiry of a warrant; or

 

      (b)   any other information that is likely to enable the identification of:

 

            (i)   the telecommunications service to which a warrant relates; or

            (ii)  a person specified in a warrant as a person using or likely to use the telecommunications service to which the warrant relates."

Section 63(2) is subject to Part VII. Section 67 in Part VII provides that an officer of an agency may communicate to another person, use or make a record of designated warrant information for a permitted purpose in relation to the agency.

Section 5(1) defines a permitted purpose in relation to any agency, including the AFP, as a purpose connected with a relevant proceeding. Section 6L defines a relevant proceeding in relation to an agency as a reference to particular categories of proceedings concluding with:

      (f)   any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, or of that State, as the case may be.

Proceeding is defined in s.5(1) as:

      (a)   a proceeding or proposed proceeding in a federal court or in a court of a State or Territory;

 

      (b)   a proceeding or proposed proceeding, or a hearing or proposed hearing, before a tribunal in Australia, or before any other body, authority or person in Australia having power to hear or examine evidence; or

 

      (c)   an examination or proposed examination by or before such a tribunal, body, authority or person;

The TI warrant was issued on the application of officers of the Commonwealth on behalf of an agency being the AFP: see 39(2) and 41(b). Those officers are the first three AFP respondents. The Commissioner of the AFP is the fourth AFP respondent.

The initial issue arising is whether the claims in the proceeding in respect of which discovery and inspection is proposed to be ordered relate to:

      "alleged improper conduct, of an officer of the Commonwealth"

The allegations in so far as they may relate to "improper conduct" are that:

(a)  officers of the Commonwealth, in applying for and issuing TI warrants which were invalid, acted in a manner not authorised by and contrary to law;

(b)  the interception and recording of intercepted information by AFP officers, subject to the supervision of the Commissioner of the AFP, pursuant to the invalid TI warrants have unlawfully breached confidentiality in and the legal professional privilege of communications between the applicant in his capacity as a barrister and his clients.

The meaning of "improper" must be determined from the context in which it appears. It was submitted on behalf of the AFP respondents that in its context in s.6L "improper conduct" has a meaning importing moral obloquy similar to that given by the Full Court in O'Connell v. Palmer (1994) 53 FCR 429 at 434.

      The Macquarie Concise Dictionary gives the word "improper" the following meanings:

 

      "1.   not proper; not strictly belonging, applicable or right; an improper use for a thing.

      2.    not in accordance with propriety of behaviour, manners, etc: improper conduct.

      3.    unsuitable or inappropriate, as for the purpose or occasion: improper tools.

      4.    abnormal or irregular."

 

      The New Shorter Oxford English Dictionary includes in its treatment of the word "improper" the meaning "unbecoming, unseemly, indecorous". In our view the word "improper" appearing as part of the expression "improper conduct" in reg 18(1)(d) of the Discipline Regulations is used in the second sense of the Macquarie concise Dictionary definition set out above. That is, we conclude  that reg 18(1)(d) is directed at conduct which may be regarded as lacking propriety or as unbecoming or unseemly in the circumstances. We do not regard the regulation as seeking to embrace in addition conduct which is merely technically irregular.

In that case the Court was considering the expression "guilty of disgraceful or improper conduct" as a disciplinary offence under the Australian Federal Police (Discipline) Regulations 1979 (Cth).

In a quite different context in relation to an "improper" trade mark Barwick CJ (with the agreement of other members of the Court) in Textile House v. Carmody (1976) 9 ALR 58 at 60 commented that the word "improper" is not of itself a term of art and must be read in the whole of the context in which it appears in the Trade Marks Act 1955. His Honour concluded that in that context it meant "objectionable".

The purpose of providing for permitted uses under the TI Act, the width of the definition of "proceeding", the exclusion of a prosecution for an offence from sub-paragraph (b) and the altogether separate category of "misbehaviour" in that sub-paragraph do not support a narrow meaning of improper in the sense of moral obloquy (which is not alleged in the present case). Indeed textual considerations do not afford any reason whatsoever for importing the notion of moral obloquy. Rather, those matters suggest a meaning in the more general sense of conduct which is unsuitable, inappropriate or irregular for conduct engaged in as an officer of the Commonwealth.

The legislature would have had in mind the possibility of conduct of Commonwealth officers in relation to TI warrants being reviewable for "jurisdictional" error in proceedings under s.75(v) of the Constitution and s.39B of the Judiciary Act. Review of the TI warrants is excluded under Schedule 1 of the ADJR Act but in that Act the legislature has seen fit to describe acting in excess of power or without jurisdiction as "improper": see ss.5(2) and 6(2). In the context of proceedings for judicial review the exercise of power in excess of, or without jurisdiction, might be quite readily perceived by the legislature as "improper".

The purpose of the amendments concerning designated warrant information in Act 141 of 1995 was the protection of privacy. That appears from the amending Act itself. Part XA provided an additional statutory cause of action and remedy in particular circumstances to protect privacy in the case of an unlawful breach of it. The purpose was also made clear in the Second Reading Speech of the Minister Mr. Sciacca.

      The amendments also create a new civil right of action against a person who unlawfully intercepts or publishes a telephone communication. These, together with the new prohibition on the disclosure of designated warrant information, represent major new privacy protections, adding to the already stringent controls in the Telecommunications (Interception) Act. Commissioner of Stamps v. Telegraph Investments (1995) 70 ALJR 155 at 159. Hansard, House of Representatives at 4317, 30 November 1995:

Although it is true that the sub-paragraph in question, s.6L(f), was not affected by the amending Act it is well established that:

      Both the act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature: see also Acts Interpretation Act 1901 (Cth) s.15. Commissioner of Stamps v. Telegraph Investments (1995) 70 ALJR 155 at 159.

Not only is the wider or more general meaning of "improper" consistent with the jurisdiction conferred under s.75(v) and s.39B but it promotes the purpose of s.63(2) by better enabling persons whose privacy has been invaded to take any appropriate proceedings in addition to those provided for in Part XA. A narrower definition, particularly one connoting moral obloquy, would defeat that purpose: see s.15AA of the Acts Interpretation Act 1901 (Cth) and Kingston v. Keprose Pty. Ltd. (1987) 11 NSWLR 404 at 421-4 per McHugh JA. Moreover a general meaning promotes the beneficent purpose of the relevant provisions.

In the present case the narrow meaning can have absurd results. A barrister has alleged that confidential and privileged communications with his clients were unlawfully intercepted and recorded. These proceedings could also be taken by his clients, being the persons whose privacy and confidentiality is sought to be protected. Yet, if the AFP's submission is correct s.63(2) would operate to prevent those persons from seeking to protect their privacy by appropriate proceedings, by denying access to the very information they require to maintain such proceedings. Such an approach to construction impedes proceedings against law enforcement agencies for the protection of the very privacy the amendments were to procure.

The resulting absurdity was manifest in the application before me. Both the "interceptor" and the intercepted party are in court. Both are fully aware of the warrant and of the communications intercepted. Yet it is contended that the party whose privacy has been invaded cannot have access to the material he requires in order to establish and maintain his claim of an alleged invasion of his right to privacy.

In my view the present proceeding, in so far as it relates to the legal privilege claim and raises the allegations I have summarised above, is one in which an allegation is made of improper conduct by officers of the Commonwealth.

In the light of the view I have formed of the proper construction of s.6L(f) it is not necessary for me to consider the issue of whether inspection will involve the disclosure of information in breach of s.63(2) or whether a narrower or more limited construction of "improper" would be beyond the legislative power conferred under the Constitution. The latter question was heard recently by a Full Court in Kizon v. Palmer (VG812 of 1995).

Accordingly, in my view s.63(2) does not operate to prohibit the inspection of discovered documents in relation to the legal privilege claim.

13.0Is the proceeding foredoomed to failure?

The AFP respondents finally submitted that the proceeding was foredoomed to failure and that the bare and unsubstantiated allegations should be struck out. The difficulty for the applicant is that without discovery all of its claims other than the legal privilege claim stand as bare allegations and unsubstantiated assertions. In W.A. Pines Brennan J said at 183:

      Though the jurisdiction conferred by O.20, r.2 to strike out a proceeding as an abuse of the process of the court should be sparingly used (General Steel Industries Inc. v. Commissioner for Railways (N.S.W.); Tampion v. Anderson), this is a case where the proceedings based on par.6 appear clearly to be no more than an unsubstantiated assertion which will not be substantiated, and that paragraph should be struck out. Despite the careful argument to the contrary, I would allow the cross appeal and I would dismiss the appeal with costs.

and at 181-2:

      This is a case where a bare allegation is made by par.6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing.

As I have refused to order discovery on the unsubstantiated claims they cannot be particularised, are entirely speculative and should be struck out.

It may transpire that the factual inferences I have drawn or the factual assumptions I have made, particularly as to disclosure to the eligible Judges of matters relating to the applicant, may prove to be incorrect. My decision is not intended to and would not prevent the applicant from seeking leave to amend his application or his pleading if that is the case. Whether the leave would be granted would be a matter for determination on that occasion if and when it arises.

I also wish to emphasise that the principles applied by me in striking out all claims other than the legal privilege claim are those established in this Court for the judicial review of an administrative decision in the exercise of the jurisdiction of the Court under the ADJR Act or s.39B. Quite different principles might be applied by the trial court in relation to the exercise of its quite different jurisdiction and procedures in a criminal trial. Nothing that I have said should fetter or inhibit the trial court in that regard.

Finally, it has been a relevant factor in my decision to strike out those claims and to refuse discovery, that an alternative and more appropriate course is open to the applicant to pursue his challenge to the validity of the warrants on those grounds. If for any reason, in a particular case, such a challenge was not available in the course of the
criminal process then fresh consideration may have to be given as to how to resolve the tension between the two competing principles of the Court not lending the aid of its processes to a fishing exercise and the Court not allowing its processes to be used to immunise LD and TI warrant decisions from judicial review.

14.0Conclusion

For the reasons set out above I have concluded that the only claim which is to continue to be entertained by the Court is the legal privilege claim. I have also concluded that it is appropriate to order limited discovery and inspection and to grant limited leave to interrogate in respect of that claim. I have concluded that otherwise it is appropriate for all the other claims in the proceeding to be struck out.

Discovery and interrogatories are to be limited to the facts disclosed to the eligible Judges in relation to the matters set out in paragraphs 1, 1A and 69A(b) of statement of claim.

It is appropriate that the parties prepare orders to give effect to my conclusions. There will be liberty to apply generally in that regard. At this stage I will reserve the costs of the motions but direct that within 7 days the parties file submissions as to the costs orders which they contend are appropriate.

                        I certify that this and the preceding 50 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel

                        Associate:

                        Dated:

Heard:        8 & 22 August 1996

Place:        Melbourne

Judgment:     5 September 1996

Appearances:  Mr. J. Brett instructed by Geoffrey Tobin Pty. appeared on behalf of the applicant.

              Dr. S. Kenny instructed by the Australian Government Solicitor appeared on behalf of the first to fourth respondents.