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John Kizon v Michael John Palmer [1997] FCA 21 (31 January 1997)

CATCHWORDS

ADMINISTRATIVE LAW - warrants - warrants issued by eligible Judge on application of Australian Federal Police ("AFP") under Telecommunications (Interception) Act 1979 (Cth) ("TI warrant" and "TI Act") and Customs Act 1901 (Cth) ("Customs warrant" and "Customs Act") - prosecution of applicant for offence against Misuse of Drugs Act 1981 (WA) - police brief delivered to applicant containing copies of warrants and references to material obtained pursuant to them - application for review of Customs warrant under Administrative Decisions (Judicial Review) Act 1977 and of TI warrant under s 39B of the Judiciary Act 1903 - claim by AFP in such proceeding of public interest immunity from giving discovery of certain documents - order for discovery against AFP in favour of applicant subject to outstanding issue of public interest immunity - whether discovery would involve disclosure to applicant of product of warrants in contravention of sub-s 63 (1) of TI Act and sub-s 219F (1) of Customs Act - whether discovery would involve disclosure of "designated warrant information" in contravention of sub-s 63 (2) of TI Act - whether applicant's allegation that AFP had failed to disclose information to eligible Judge in breach of supposed duty of utmost good faith constitutes "alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth" for purpose of statutory exclusion from prohibitions - whether prohibitions in s 63 of TI Act and s 519F of Customs Act constitutionally invalid - scope of power to make laws with respect to telephonic services in s 51 (v) of the Constitution - implied freedom of communication - whether prohibitions interfere with exercise of judicial power of the Commonwealth.

CONSTITUTIONAL LAW - warrants - warrants issued by eligible Judge on application of Australian Federal Police ("AFP") under Telecommunications (Interception) Act 1979 (Cth) ("TI warrant" and "TI Act") and Customs Act 1901 (Cth) ("Customs warrant" and "Customs Act") - prosecution of applicant for offence against Misuse of Drugs Act 1981 (WA) - police brief delivered to applicant containing copies of warrants and references to material obtained pursuant to them - application for review of Customs warrant under Administrative Decisions (Judicial Review) Act 1977 and of TI warrant under s 39B of the Judiciary Act 1903 - claim by AFP in such proceeding of public interest immunity from giving discovery of certain documents - order for discovery against AFP in favour of applicant subject to outstanding issue of public interest immunity - whether discovery would involve disclosure to applicant of product of warrants in contravention of sub-s 63 (1) of TI Act and sub-s 219F (1) of customs Act - whether discovery would involve disclosure of "designated warrant information" in contravention of sub-s 63 (2) of TI Act - whether applicant's allegation that AFP had failed to disclose information to eligible Judge in breach of supposed duty of utmost good faith constitutes "alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth" for purpose of statutory exclusion from prohibitions - whether prohibitions in s 63 of TI Act and s 519F of Customs Act constitutionally invalid - scope of power to make laws with respect to telephonic services in s 51 (v) of the Constitution - implied freedom of communication - whether prohibitions interfere with exercise of judicial power of the Commonwealth.

WORDS AND PHRASES - "person" - whether court a person - "improper conduct" - whether non-disclosure of information to eligible Judge issuing warrant in breach of supposed duty of utmost good faith constitutes "misbehaviour" or "improper conduct" for purpose of statutory exclusion from prohibitions.

The Constitution, s 51 (v)

Telecommunications (Interception) Act 1979 , ss 5 (1), 5B (f), 6EA, 6L (1) (f), 7 (1), 63, 67, 74

Customs Act 1901 , s 219F

Telecommunications (Interception) Amendment Act 1995 , Schedule 1, Pt 4

Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1

Stapleton v Wilson [1956] QWN 48

Geraghty v Woodforth [1957] QWN 41

Cowan v Stanhill Estates Pty Ltd [1966] VR 604.

Miller v Miller [1978] HCA 44; (1978) 141 CLR 269

R v Padman [1979] Tas R 37

Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57

Duff v McCulloch (1985) 11 FCR 237

Brown v Commissioner of the Australian Federal Police (1988) 83 ALR 477 at 480

John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 Green v R (1996) 135 ALR 181

Alexandra Private Geriatric Hospital Pty Ltd v The Commonwealth [1987] HCA 6; (1987) 162 CLR 271

Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1

Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79

Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272

Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12; (1993) 176 CLR 555

Leask v The Commonwealth [1996] HCA 29; (1996) 140 ALR 1

Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565

Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104

ASC v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492

Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168

Chu Kheng Lim v Minister for Immigration & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1

Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368; (1986) 12 FCR 257

Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106

Carmody v Phillips, unreported, FCA/Merkel J, 5 September 1996 VG 875/1995

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323

McGinty v Western Australia [1996] HCA 48; (1996) 134 ALR 289

Langer v The Commonwealth [1996] HCA 43; (1995) 134 ALR 400

JOHN KIZON v MICHAEL JOHN PALMER

No VG 812 of 1995

Jenkinson, Lindgren, Kiefel JJ

Sydney (heard in Brisbane)

31 January 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY ) No VG 812 of 1995

GENERAL DIVISION )

BETWEEN:

JOHN KIZON

Applicant

AND:

MICHAEL JOHN PALMER

First Respondent

MARTIN VOYEZ

Second Respondent

JUSTICE CHRISTOPHER CARR

Third Respondent

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Fourth Respondent

CORAM: Jenkinson, Lindgren, Kiefel JJ

PLACE: Brisbane

DATE: 31 January 1997

MINUTE OF ORDERS

THE COURT ORDERS:

(1) THAT the questions the subject of the reservation on 5 July 1996 for the consideration of a Full Court, be answered as follows:

"1 Is an affidavit required by section 42 of the Telecommunications (Interception) Act 1979, as amended ('the principal Act'), to accompany a written application by an agency for a warrant under Division 3 of Part VI of the principal Act, 'designated warrant information' within the meaning of section 6EA of the principal Act?"

No, but such an affidavit will necessarily contain designated warrant information.

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

(a) prevent the first respondent from producing for inspection by the applicant the documents, or those parts thereof which comprise material of the kind specified in sub-section 63 (2), from the list of discovered documents given by the first respondent on 14 November 1995?"

(a) Yes, as to those parts which comprise material of the kind referred to in sub-section 63 (2).

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

(b) prevent the applicant from placing reliance, in whole or in part, upon the 'open' affidavit of Alan James Mills dated 4 April 1996, and the edited version of the discovered documents annexed thereto, to the extent that such affidavit and annexures contain material of the kind specified in sub-section 63 (2)?"

(b) No.

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

(c) prevent the applicant from contending that there is no public interest immunity which would operate to prevent him from inspecting, in whole or in part, the discovered documents, to the extent that such documents contain material of the kind specified in sub-section 63 (2)?"

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

(d) affect in any other way the conduct of this proceeding?"

(d) It is inappropriate to answer a question expressed in these terms.

"3 If the answer to any or all of the questions in 2. is 'yes', are section 6EA, sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 valid laws of the Commonwealth?"

Yes.

"4 Are section 6EA, sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 otherwise invalid?"

No.

"5 Do sub-section 63 (1) and paragraph 67 (a) of the principal Act operate to:

(a) prevent the first respondent from producing for inspection by the applicant the documents, or those parts thereof which comprise material of the kind specified in sub-section 63 (1), from the list of discovered documents given by the first respondent on 14 November 1995?"

(a) Yes, as to those parts which comprise material of the kind referred to in sub-section 63 (1).

"5 Do sub-section 63 (1) and paragraph 67 (a) of the principal Act operate to:

(b) No.

"5 Do sub-section 63 (1) and paragraph 67 (a) of the principal Act operate to:

"6 If the answer to any or all of the questions in 5. is 'yes', are sub-section 63 (1) and paragraph 67 (a) of the principal Act valid laws of the Commonwealth?"

6. Yes.

"7 Does:

(a) the word 'person', or

(b) the expression 'another person'

in either or both of sub-section 63 (1) or 63 (2) or in section 67 of the principal Act apply to, or include, the Court in this proceeding?"

No, as to each of paras (a) and (b).

"8 If the answer to any or all of the questions in 7. is 'yes', is the judge hearing the first respondent's claim for public interest immunity in relation to the discovered documents prevented from examining those documents or parts thereof to the extent that such documents contain material of the kind specified in sub-sections 63 (1) and (2)?"

It is unnecessary to answer this question.

"9 Does sub-section 219F of the Customs Act 1901 operate to:

(a) prevent the first respondent from producing for inspection by the applicant the documents, or those parts thereof which comprise material of the kind specified in sub-section 219F (1), from the list of discovered documents given by the first respondent on 14 November 1995?"

(a) Yes, as to those parts which comprise information of the kind referred to in sub-s 219F (1).

"9 Does sub-section 219F of the Customs Act 1901 operate to:

(b) No.

"9 Does sub-section 219F of the Customs Act 1901 operate to:

"10 If the answer to any or all of the questions in 9. is 'yes', is sub-section 219F (1) of the Customs Act a valid law of the Commonwealth?"

Yes.

"11. Does the expression 'another person' in sub-section 219F (1) of the Customs Act apply to, or include, the Court in this proceeding."

No.

"12. If the answer to question 11. is 'yes', is the judge hearing the first respondent's claim for public interest immunity in relation to the discovered documents prevented from examining those documents or parts thereof to the extent that such documents contain material of the kind specified in sub-section 219F (1)?"

It is unnecessary to answer this question.

(2) THAT the applicant pay the costs of the first respondent of the decision of the questions reserved.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY ) No VG 812 of 1995

GENERAL DIVISION )

BETWEEN:

JOHN KIZON

Applicant

AND:

MICHAEL JOHN PALMER

First Respondent

MARTIN VOYEZ

Second Respondent

JUSTICE CHRISTOPHER CARR

Third Respondent

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Fourth Respondent

CORAM: Jenkinson, Lindgren, Kiefel JJ

PLACE: Brisbane

DATE: 31 January 1997

REASONS FOR JUDGMENT

JENKINSON AND KIEFEL JJ:

In our opinion the questions reserved for this Court's consideration should be answered in the terms proposed by Lindgren J, for the reasons which his Honour states. We agree that the first respondent's costs of the proceeding in this Court should be ordered to be paid by the applicant.

I certify that this page is a true copy of the Reasons for Judgment of the Honourable Justices Jenkinson and Kiefel.

Associate:

Dated: 31 January 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY ) No VG 812 of 1995

GENERAL DIVISION )

BETWEEN:

JOHN KIZON

Applicant

AND:

MICHAEL JOHN PALMER

First Respondent

MARTIN VOYEZ

Second Respondent

JUSTICE CHRISTOPHER CARR

Third Respondent

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Fourth Respondent

CORAM: Jenkinson, Lindgren, Kiefel JJ

PLACE: Brisbane

DATE: 31 January 1997

REASONS FOR JUDGMENT

LINDGREN J:

INTRODUCTION:

On 5 July 1996, the Court, constituted by Davies J, stated a case and reserved certain questions for the consideration of a Full Court: see Federal Court of Australia Act 1976 , sub-s 25 (6) and O 50 of the Federal Court Rules. The case was stated and the questions were reserved on the basis of agreed facts. The questions reserved arise out of an order that there be discovery of the material which was placed before the issuer of certain warrants. The first respondent, who was ordered to give discovery, contends that certain legislation has the effect of prohibiting him from complying with the order. The applicant, to whom discovery was ordered to be given, contends that to the extent that the legislation has that effect, it is constitutionally invalid.

The second, third and fourth respondents had indicated that they would consent to such orders as the Court might make, save as to costs. Accordingly, only the applicant and the first respondent participated in the hearing. Unless the context otherwise indicates, the term "parties" is intended to refer to the applicant and the first respondent.

It is convenient to consider the agreed facts before I state the questions reserved. First, however, I will identify the parties and the general nature of the proceeding.

The case concerns two warrants. The first was a "listening device warrant" ("LD warrant") issued on 12 October 1994 under sub-s 219B (5) of the Customs Act 1901 ("the Customs Act") on the application of Detective Superintendent Thomas Nicholas Drew ("Drew"), a member of the Australian Federal Police ("AFP"). The second was a "telephone intercept warrant" ("TI warrant") issued on 28 October 1994 under s 45 of the Telecommunications (Interception) Act 1979 ("the TI Act"), also on the application of Drew on behalf of the AFP.

The first respondent is the Commissioner of the AFP. The second respondent is a member of the Western Australian Police Force. He charged the applicant and one Michael Rippingale with conspiring to possess 19.409 kg of cannabis with intent to sell and/or supply it contrary to para 6 (1) (a) and sub-s 33 (2) of the Misuse of Drugs Act 1981 (WA). The police brief delivered to the applicant contained copies of the two warrants and references to material obtained pursuant to them. The third respondent is the "eligible Judge" who issued the warrants. The fourth respondent is responsible for the prosecution of the charge to which I referred.

By his application filed on 6 October 1995, the applicant seeks an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 in relation to the first respondent's decision to apply for the issue of the LD warrant and the third respondent's decision to issue that warrant. He claims declaratory and injunctive relief in relation to both the LD warrant and the TI warrant.

AGREED FACTS

(In the following account, bold typeface indicates a paragraph from the statement of agreed facts.)

"1. Following an investigation by the Australian Federal Police and the Western Australian Police, on 3 April 1995 the applicant in this proceeding and Michael Rippingale were charged by the second respondent (a member of the W.A. Police) with conspiring to possess 19.409 kilograms of cannabis with intent to sell and/or supply contrary to sections 6 (1) (a) and 33 (2) of the Misuse of Drugs Act 1981 (W.A.).

2. The police brief was delivered to the defendant/applicant on 24 May 1995. That brief contained copies of a listening device warrant issued on 12 October 1994 under the Customs Act 1901 and a telecommunications interception warrant issued on 28 October 1994 under the Telecommunications (Interception) Act 1979 by Justice Carr of the Federal Court, as well as references to material obtained therefrom. Copies of the warrants are at Annexure 1."

According to Annexure 1, the LD warrant was issued on 12 October 1994. It authorised certain members of the AFP to use a listening device or listening devices for the purpose of listening to or recording, words spoken by, to, or in the presence of the applicant anywhere in Australia, subject to a condition not presently relevant. The TI warrant was issued on 28 October 1994. It authorised certain members of the AFP to intercept communications made to or from mobile telephone service 015-771 100.

"3. On 6 October 1995 the applicant commenced this proceeding by way of an application and statement of claim seeking orders of review under ADJR Act and orders under section 39B of Judiciary Act regarding the issue of the warrants referred to in the brief. Copies of the application, statement of claim and further and better particulars of the statement of claim are at Annexure 2."

(In the following account of the statement of claim, bold numerals indicate paragraph numbers in that document.) The application for, and issuing of, the LD warrant are pleaded (6, 7). Pursuant to that warrant, a member or members of the AFP, on and after 14 October 1994, installed and used a listening device or devices and recorded words spoken by, to, or in the presence of the applicant (8). Significantly for present purposes, further particulars are promised "after discovery".

Similarly, the application for and the issue of the TI warrant are pleaded (9, 10, 11). Pursuant to that warrant, a member or members of the AFP intercepted communications passing over telephone service 015-771 100 and recorded the communications (12). The second respondent charged the applicant (13). For the purposes and in furtherance of the investigations and/or the prosecution, a member or members of the AFP recorded, made use of and communicated to other persons, information allegedly obtained by the listening devices and/or by the interceptions (14). For example, as particulars it is stated that the information obtained by the use of the listening devices was used as material supporting the application for the TI warrant.

The validity of the decision to issue both warrants is challenged on the ground that the information provided to the third respondent was not reasonably capable of satisfying him of the matters of which an eligible Judge is required to be satisfied by the relevant statutory provisions, and that it was not open to him to be satisfied in relation to those matters (18, 19; 25, 26). When applying for each warrant, Drew was under a duty uberrima fides to make a full and frank disclosure to the third respondent of facts and matters which were or might be material to the exercise of his discretion, or which he might reasonably regard as material to his decision, whether to issue the warrant (20; 27). It was a condition of the exercise of the power or discretion to issue each warrant, that Drew should have discharged that duty of disclosure (21; 28), yet he breached it (22; 29). In the case of each warrant, what was not disclosed was "the facts and matters which were or [might] be material to the exercise of [the third respondent's] discretion to issue the ... warrant" including the fact that Drew "had no reasonable or proper basis for believing that the applicant had been or was involved in" the offence or offences referred to on the face of the warrant. Importantly for present purposes, it is said that further particulars of the breach of the duty of disclosure "will be provided after discovery."

The application for each warrant was an abuse of the processes provided under the relevant Act; the application for the warrant, the decision to issue it and the warrant itself, were and are in each case ultra vires, unauthorised by statute, void, unlawful, and of no force or effect; the recording, use and communication (and in the case of the TI warrant, the interception) of information obtained were and are unlawful and contrary to the relevant Act; and the applicant has suffered and continues to suffer an unlawful invasion of his privacy, his right to confidential communications and other rights, and has suffered and continues to suffer loss and damage (30; 33).

By reason of certain provisions of the Customs Act and the TI Act respectively and by operation of law, the respondents are prohibited from communicating to another person, making use of, making a record of, or giving evidence in any proceeding or at all of, information obtained, unless, in the case of the TI warrant, the use was authorised by the TI Act, the information obtained was lawfully obtained under the TI Act, and the use is expressly permitted under Part VII of the TI Act 1995 (31; 34). Yet, unless restrained, the respondents threaten to use the information (32; 35).

An alternative ground of attack in the case of the TI warrant is that material which purported to justify the issue of it was based on "product" of the LD warrant (36). Accordingly, if, as pleaded, the LD warrant was invalid or unlawfully procured, the information purporting to justify the application for, and the issue of, the TI warrant was unlawfully obtained, and there was no information lawfully obtained on which the third respondent could be satisfied to justify the issue of that warrant, which is, therefore, also invalid (37, 38).

Before I pass from the pleading, two matters may be noted. First, it is plain that the applicant relies heavily on the availability of discovery in order to mount his attack on the warrants. It is essential to his case as pleaded that he establish what information was provided to the third respondent in support of the applications for the warrants, but without discovery he cannot do so. Secondly, it is perhaps ironic that the applicant relies in his challenge to the validity of the TI warrant, on a statutory provision which is directed, in whole or in part, to the protection of his privacy by prohibiting revelation of the product of the LD warrant, and, as will be seen, the first respondent relies on statutory provisions so directed, as prohibiting his giving discovery to the applicant.

"4 On 24 October 1995 Justice Northrop made orders that there be discovery and inspection of the material placed before Justice Carr in support of the application for the warrants. A copy of the orders of Justice Northrop is at Annexure 3."

Relevantly, the order of Northrop J made on 24 October 1995 (entered on 25 October 1995) was as follows:

"1 There be limited discovery given by the Respondents of the material placed before the Respondent Justice Christopher Carr in support of the application for the warrants referred to in the application and inspection of those documents. Discovery and inspection is to be given within 21 days;"

It was common ground that the order was to be subject to the determination of any application by the respondents or any of them based on public interest immunity.

"5 On 14 November 1995 the first respondent filed and served a list of documents in response to the discovery order - being five affidavits sworn by Detective Superintendent Drew of the Australian Federal Police - and claimed public interest immunity for the whole of the documents. A copy of the list is at Annexure 4."

The verified list of documents was in two numbered categories. Category 1 related to the application for the LD warrant issued on 12 October 1994. Category 2 related to the application for the TI warrant issued on 28 October 1994. Category 1 comprised an affidavit of Drew sworn 10 October 1994 and, as annexures to it, copies of affidavits by him sworn 9, 26 and 31 August 1994. Category 2 comprised a fifth affidavit of Drew sworn 27 October 1994 and, as annexures to it, copies of the four affidavits in Category 1.

"6 The applicant seeks to rely on inspection of the documents listed by the first respondent, among other things, to provide further particulars of the statement of claim to the first respondent.

7 On 11 December 1995 the applicant filed a notice of motion seeking certain orders, including an order that the five affidavits be produced for inspection and that the first respondent file and serve a list discovering each of the written applications (as distinct from the affidavits in support) for the warrants. A copy of the notice of motion, which is part-heard by the Court, is at Annexure 5."

(Annexure 5 does not call for comment).

"8 On 14 March 1996 the first respondent filed a minute of amended defence. A copy of the minute of amended defence is at Annexure 6."

Annexure 6 calls for comment in only one respect. In para 27 of his minute of amended defence, the first respondent admits that part of the material provided to the third respondent in support of the application for the TI warrant was obtained by the AFP from a listening device installed pursuant to the LD warrant.

"9 On 15 March 1996 the first respondent filed an amended notice of motion seeking certain orders, including an order that, on the grounds appearing in the affidavits of Detective Superintendent Drew sworn 29 November 1995 and Deputy Commissioner Allen sworn 17 January 1996 in support of the public interest immunity claim, the applicant is not entitled to inspect or call for the production of the documents enumerated in the first respondent's list of documents. A copy of the notice of motion, which is part-heard by the Court, is at Annexure 7."

(Annexure 7 does not call for comment).

"10 On 18 March 1996 Justice Davies held that the affidavit material filed by the first respondent in support of the public interest immunity claim was not sufficiently detailed. Justice Davies made certain orders, including an order that the first respondent file a more detailed affidavit supporting the public interest immunity claim. A copy of the orders is at Annexure 8."

(Annexure 8 does not call for comment).

"11 On 4 April 1996 the first respondent filed and served an 'open' affidavit sworn by Assistant Commissioner A.J. Mills of the Australian Federal Police supporting the claim of public interest immunity [`the Mills open affidavit']. An edited version of the five affidavits which supported the warrant applications was annexed. The open affidavit and the annexed edited affidavits variously contain information relating to five telecommunications interception warrants and, in one paragraph of one affidavit, information which was obtained by intercepting a communication. A copy of the open affidavit and annexed edited affidavits is at Annexure 9."

The Mills open affidavit identifies (in para 8) the five affidavits by reference to deponents and dates, and says that the first four supported the applications for the issue of both the LD warrant and the TI warrant and that the fifth supported the application for the issue of the TI warrant. In his affidavit, Assistant Commissioner Mills claims public interest immunity in respect of specified parts of the affidavits which are exhibited to the open affidavit in five sealed envelopes. Annexed to the Mills open affidavit were copies of the five affidavits from which the parts for which public interest immunity was claimed were omitted. Most of the body of the Mills open affidavit (25 out of 29 pages) was devoted to complying with the order of Davies J made on 18 March 1996 that the first respondent file a more detailed affidavit in support of the claim of public interest immunity. It identified, by reference to paragraph numbers, those parts of the five affidavits for which that claim was made and the effect adverse to the public interest which it was alleged disclosure would have. Of course, the affidavit did not reveal the content of those paragraphs or parts of paragraphs for which the claim was made.

"12 Also on 4 April 1996 Assistant Commissioner Mills swore a confidential affidavit supporting the claim of public interest immunity. The confidential affidavit, which annexes the unedited versions of the five affidavits, is yet to be filed. The annexed unedited affidavits and possibly the confidential affidavit variously contain information relating to five telecommunications interception warrants and information which was obtained by intercepting a communication pursuant to the warrants, as well as information obtained by using listening devices.

13 At the hearing before Justice Davies in Sydney on 21 June 1996 of the first respondent's public interest immunity claim, the first respondent submitted to the Court that statutory prohibitions against disclosure applied to the documents in the respondent's list of documents served on 14 November 1995 (see paragraph 5 above). Schedules prepared by the first respondent indicating which paragraphs of the documents possibly fall within the prohibitions are at Annexure 10. At the hearing it was also suggested by counsel for the applicant that the prohibitions, as construed by counsel for the first respondent, might also extend to other documents and submissions made or to be made in this proceeding in relation to the claim for public interest immunity. Upon the submission of counsel for the applicant, which was supported by counsel for the first respondent, Justice Davies decided that a case should be stated to a Full Court of the Federal Court under section 25 (6) of the Federal Court of Australia Act 1976. Determination of the public interest immunity claim has been deferred pending resolution of the stated case. A copy of the transcript of the hearing before Justice Davies is at Annexure 11."

(Annexures 10 and 11 do not call for comment.)

The reference in para 13 above to the "statutory prohibitions against disclosure" is a reference to prohibitions to be found in the following:

(i) sub-section 63 (1) (with s 6E and para 67 (a)) of the TI Act;

(ii) sub-section 63 (2) (with s 6EA, and para 67 (b)) of the TI Act and cl 34 of Schedule 1 to the Telecommunications (Interception) Amendment Act (Act No 141 of 1995) ("the TI Amendment Act");

(iii) sub-section 219F (1) of the Customs Act.

The provisions of the TI Act referred to in para (ii) above were enacted by the TI Amendment Act with effect on and from 12 December 1995. The Court was informed on the hearing that the existence and supposed impact of the statutory prohibitions referred to in paras (i), (ii) and (iii) above on the obligation to give discovery were drawn to the attention of counsel for the respondent for the first time the evening before the hearing listed for 21 June 1996 before Davies J.

THE STATUTORY PROHIBITIONS

The TI Act was enacted in 1978 as the successor to the Telephonic Communications (Interception) Act 1960 . Part VII was introduced by amendments in 1987. It is headed "DEALING WITH INTERCEPTED INFORMATION". Prior to the enactment of the TI Amendment Act in 1995, s 63 in Part VII prohibited a person, subject to the exceptions provided for in that Part, from (a) communicating to another person, making use of, or making a record of, or (b) giving in evidence in a proceeding, not only information obtained by the interception of a telephonic communication in contravention of sub-s 7 (1) (noted below), but also "lawfully obtained information". Section 6E gave (and gives) content to the expression "lawfully obtained information". The expression refers to, relevantly, information obtained by intercepting, otherwise than in contravention of subsection 7 (1), a communication passing over a telecommunications system. In particular, the expression refers to information obtained from an interception under a TI warrant issued under the Act.

Accordingly, the provision prohibited (and prohibits), inter alia, dealing with the "product" of an interception pursuant to a TI warrant in the ways mentioned, subject to the exceptions provided for in Part VII itself. One of those exceptions was (and is) that provided for in sub-s 74 (1), namely, that a person may give lawfully obtained information (eg the product of an interception under a TI warrant, but not information obtained from the interception of a telephonic communication in contravention of sub-s 7 (1)) in evidence in an "exempt proceeding". The expression, "exempt proceeding" was (and is) defined in s 5B of the TI Act, quoted below.

Amendments were made to the TI Act in its then form by the TI Amendment Act. The amendments immediately relevant were contained in Part 4 of Schedule 1 to the TI Amendment Act headed "DISCLOSURE OF INFORMATION ABOUT THE EXISTENCE OF A WARRANT ETC." As noted earlier, the amendments commenced on 12 December 1995. They further safeguarded the confidentiality of telephonic communications by extending the existing prohibitions, to encompass prohibitions against dealing in "designated warrant information" - information broader in scope than the result of an interception. The provision which achieved this effect is sub-s 63 (2), with which must be read para 67 (b) and the definition of "designated warrant information" in the new s 6EA. All these provisions were introduced by Part 4 of Schedule 1 to the TI Amendment Act. (The TI Amendment Act did not, apparently through oversight, re-number the existing s 63 as sub-s 63 (1), although it introduced a new sub-s 63 (2). I have treated the amended section as having two sub-sections.)

Against the foregoing background, the content of the provisions of the TI Act central to the questions before the Court, incorporating the amendments effected by the TI Amendment Act, may be noted. In the following account, the amendments made by the TI Amendment Act are indicated in bold typeface.

Part II of the TI Act is headed "INTERCEPTION OF TELECOMMUNICATIONS" and now comprises but one section - s 7. Sub-section 7 (1) is pivotal for many provisions of the Act:

"7(1) A person shall not:

(a) intercept;

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or another person to intercept;

a communication passing over a telecommunications system."

Importantly, sub-s 7 (2) provides that sub-s 7 (1) does not apply to, or in relation to, inter alia, "the interception of a communication under a warrant". As will be noted below, under s 6E, information obtained by the interception of a telephonic communication under a TI warrant is "lawfully obtained information".

Part III (ss 9-18) of the TI Act provides for the issue of warrants authorising the Australian Security Intelligence Organization constituted under the Australian Security Intelligence Organization Act 1979 , to intercept telecommunications. Section 11A in that Part empowers the Attorney-General to issue TI warrants at the request of the Director-General of Security for the purpose of obtaining "foreign intelligence" (as defined). Information obtained by virtue of a warrant issued under s 11A is called "section 11A information": sub-s 5 (1).

Part VI (ss 32-61) of the TI Act provides for warrants authorising the AFP to intercept telecommunications. Division 3 (ss 39-44) of that Part provides for the making of applications for warrants. Section 39 provides that an "agency" may apply to an "eligible Judge" for a warrant in respect of a telecommunications service, and s 40 requires that, save in identified exceptional cases, the application must be in writing.

Within Part IA (ss 5-6N), which deals with interpretative matters, sub-s 5 (1) defines "agency" to mean, relevantly, "a Commonwealth agency" or "an eligible authority of a State". The only Commonwealth agency of relevance to this case is the AFP and the only eligible authority of a State of relevance to this case is the Police Force of the State of Western Australia. The expression "eligible Judge" is defined in s 6D within Part IA. It suffices to say that the third respondent is an eligible Judge.

Section 42 assumes importance in the present case. It is as follows:

"42(1) A written application by an agency for a warrant shall be accompanied by an affidavit complying with this section.

(2) The affidavit shall set out the facts and other grounds on which the application is based.

(3) The affidavit shall specify the period for which it is requested that the warrant be in force and shall state why it is considered necessary for the warrant to be in force for that period.

(4) The affidavit shall set out, in relation to the service, and in relation to each person to whom the application relates, the following information, so far as it can be derived from the agency's records:

(a) the number of previous applications (if any) for warrants that the agency has made and that related to the service or to that person, as the case may be;

(b) the number of warrants (if any) previously issued on such applications; and

(c) particulars of the use made by the agency of information obtained by interceptions under such warrants.

(5) Notwithstanding subsection (1), a written application may be accompanied by 2 or more affidavits that together set out each matter that, but for this subsection, this section would have required an affidavit accompanying the application to set out, specify or state."

The prohibitions contained in Part VII (ss 62-79), headed "DEALING WITH INTERCEPTED INFORMATION", are central to the questions for separate decision which are before the Court. Although subsequent provisions in Part VII qualify, and therefore contribute to the delineation of the scope of the prohibitions, the prohibitions themselves are found in s 63. The continuing one is found in sub-s 63 (1) and the new one introduced with effect from 12 December 1995 by the TI Amendment Act is found in sub-s 63 (2). Section 63 is as follows:

"63(1) Subject to this Part, a person shall not, after the commencement of this Part:

(a) communicate to another person, make use of, or make a record of; or

(b) give in evidence in a proceeding;

lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7 (1).

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

The opening words "Subject to this Part" import a reference to many exceptions to the prohibitions, only some of which will be noted in these Reasons.

Sub-section 5 (1) defines "communicate" to include "divulge, and "record" as being, in substance, "a record or copy". The notions of communicating, making use of, making a record of, and giving in evidence in a proceeding, information, are elaborated upon by s 5A which is as follows:

"5A For the purposes of this Act, a person who gives to another person, makes use of, makes a record of, or produces in evidence in a proceeding, a record (in this section called the 'relevant record') obtained by an interception, whether or not in contravention of sub- section 7 (1), of a communication shall be taken to communicate to the other person, make use of, make a record of, or give in evidence in that proceeding, as the case may be, so much of the information obtained by the interception as can be derived from the relevant record."

The expression "lawfully obtained information" in sub-s 63 (1) is defined in sub-s 6E (1) as follows:

"6E(1) ..., a reference in this Act to lawfully obtained information is a reference to information obtained (...) by intercepting, otherwise than in contravention of subsection 7 (1), a communication passing over a telecommunications system."

The form of lawfully obtained information with which the present case is concerned is information obtained by interception of a telephonic communication pursuant to a warrant.

The expression "designated warrant information" which appears in sub- s 63 (2) is of central importance in the present case and is defined in s 6EA as follows:

"6EA A reference in this Act to designated warrant information is a reference to:

(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."

In sum, sub-s 63 (1) is the continuing prohibition which relates to information obtained by an interception, whether authorised by a TI warrant or not, while sub-s 63 (2) is the newly introduced prohibition directed to a wide range of information touching a TI warrant itself and the authority conferred by it.

The form of each prohibition is itself dual: each contains first, a prohibition against communicating, making use of, or making a record of the information in question; and secondly, a prohibition against giving such information in evidence in a proceeding.

As will be seen below, s 67 provides for an exception to the prohibitions against communicating, making use of and making a record of, lawfully obtained information (other than s 11A information) and designated warrant information, while s 74 provides for an exception to the prohibitions against the giving in evidence in a proceeding of lawfully obtained information and designated warrant information.

But first, I digress to note that a new s 63AA enacts an exception to both classes of prohibition, in so far as they relate to designated warrant information:

"63AA A person may, for the purposes of Part III, VI, VIII or IX:

(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."

Part III provides for the issue of warrants by the Attorney-General for the Australian Security Intelligence Organization to intercept telecommunications. The purposes of Part VI, referred to earlier, may be summarised as a range of purposes associated with the issue and revocation of TI warrants and the effective exercise of the authority given by them. Part VIII provides for the keeping and inspection of interception records of the AFP and the National Crime Authority. Part IX provides for the making of reports to and by the Minister in relation to applications for, and the issue of, warrants.

Section 67, referred to earlier, is as follows:

"67 An officer of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following:

(a) lawfully obtained information other than section 11A information;

(b) designated warrant information."

The notion of a "`permitted purpose' in relation to an agency, or an eligible authority of a State" is defined in sub-s 5 (1). Relevantly, sub-s 5 (1) provides that:

"`permitted purpose', in relation to an agency, or an eligible authority of a State, means a purpose connected with:

(a) in any case:

(i) an investigation by the agency or eligible authority of a prescribed offence;

(ii) ..................................;

(iii) a relevant proceeding in relation to the agency or eligible authority; ..." (underlining supplied)

The expression "prescribed offence" is defined in sub-s 5 (1) in a way that encompasses the offence noted earlier with which the applicant is charged. In relation to the expression "relevant proceeding", s 6L provides, relevantly, as follows:

"6L (1) A reference in this Act, in relation to an agency, or an eligible authority of a State, to a relevant proceeding is, in the case of the Australian Federal Police or a Police Force of a State, a reference to:

(a) a proceeding by way of a prosecution for a prescribed offence that is an offence against a law of the Commonwealth, or of that State, as the case may be;

(b) ...; (c) ...; (d) ...;

(e) a police disciplinary proceeding that is a proceeding against a member of the Australian Federal Police, or of that Police Force, as the case may be; or

(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."

The word "proceeding" is defined widely in sub-s 5 (1) in a manner which does not call for comment. In relation to the Police Force of the State of Western Australia, the pending prosecution of the applicant is a "relevant proceeding".

While s 67 creates exceptions to s 63's prohibitions against communicating, making use of or making a record of information of the two kinds in question, s 74 excepts from s 63's prohibitions against the giving of information of those kinds in evidence in a proceeding. It does so as follows:

"74(1) A person may give lawfully obtained information ( ... ) in evidence in an exempt proceeding.

(2) .........................................

(3) A person may give designated warrant information in evidence in an exempt proceeding." (underlining supplied)

Section 5B provides, inter alia, as follows:

"5B A reference in this Act to an exempt proceeding is a reference to:

(a) a proceeding by way of a prosecution for a prescribed offence; or

(b) ...; or (c) ...; or (d) ...; or

(e) a police disciplinary proceeding; or

(f) any other proceeding (not being a proceeding by way of 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 a State; or

(g) ...; or (h) ...; or (i) ...; or

(j) ...."

The pending prosecution of the applicant is an "exempt proceeding". The only paragraph in s 5B's definition of "exempt proceeding" that might conceivably be relevant to the present case is para (f) of the definition. The applicant accepted, indeed submitted, that the present proceeding does not fall within that paragraph. The first respondent agrees. So do I (see the discussion under question 2 (b) later).

A final exception to s 63's prohibitions against giving in evidence in a proceeding information obtained by an interception in contravention of sub-s 7 (1) and "designated warrant information", is found in sub-ss 76A (1) and (2) respectively:

"76A(1) A person may give information obtained by intercepting a communication in contravention of subsection 7(1) in evidence in a proceeding by way of an application under section 107A for remedial relief in respect of:

(a) the interception; or

(b) the communication (in contravention of section 63) of information obtained by the interception.

(2) A person may give designated warrant information in evidence in a proceeding by way of an application under section 107A."

(Section 107A is referred to below.)

The question of the admissibility in evidence of information obtained from the interception of telephonic communications is further addressed in s 77:

"77(1) Where a communication passing over a telecommunications system has been intercepted, whether or not in contravention of subsection 7 (1), then:

(a) subject to paragraph (b), neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding except in so far as section 63A, 74, 75, 76 or 76A permits a person to give in evidence in that proceeding information so obtained; and

(b) for the purpose of determining the extent (if any) to which section 63A, 74, 75, 76 or 76A permits a person to give in evidence in a proceeding information obtained by the interception:

(i) a person may communicate to another person, make use of, make a record of, or give in evidence in the last-mentioned proceeding, information so obtained; and

(ii) information, or a record, so obtained is admissible in evidence in the last-mentioned proceeding.

(2) Neither information, nor a record, obtained by virtue of a warrant under section 11A is admissible in evidence in a proceeding unless section 63A or 74 permits a person to give in evidence in that proceeding information obtained by virtue of the warrant.

(3) Designated warrant information is admissible in evidence in a proceeding only to the extent that section 63AA, 74, 76 or 76A permits a person to give designated warrant information in evidence in that proceeding.

(4) For the purpose of determining the extent (if any) to which section 63AA, 74, 76 or 76A permits a person to give designated warrant information in evidence in a proceeding:

(a) a person may:

(i) communicate the information to another person; or

(ii) make use of the information; or

(iii) make a record of the information; or

(iv) give the information in evidence in the proceeding; and

(b) the information is admissible in evidence in the proceeding."

Clause 34 of Schedule 1 to the TI Amendment Act is as follows:

"34 The amendments made by this Part [a reference to Part 4 of Schedule 1 to the TI Amendment Act which introduced the provisions relating to designated warrant information into the principal Act] apply in relation to a warrant issued before or after the commencement of this item [a reference to cl 34]"

Part X (ss 105-107) of the TI Act is headed "OFFENCES". The following provisions of Part X are noteworthy:

"105(1) A person who contravenes subsection 7 (1) or section 63 is guilty of an offence against that subsection or section.

(2) An offence against subsection 7 (1) or section 63 is an indictable offence and, subject to this section, is punishable on conviction by imprisonment for a period not exceeding 2 years."

(3) ... (4) ..."

"106 A person shall not, without reasonable excuse, obstruct or hinder a person acting under a warrant.

Penalty: Imprisonment for 6 months."

The first respondent contends that he would commit an offence under s 105 if he were to comply with the order for discovery made by Northrop J, whether or not his claim of public interest immunity can be made good.

Part XA (ss 107A-107F) was introduced by Part 2 of Schedule 1 to the TI Amendment Act. It is headed "CIVIL REMEDIES". It is independent of the increase in the protection of confidentiality introduced by Part 4 of Schedule 1 already noted, but that increase gives additional scope for the availability of the civil remedies introduced by the new Part XA.

Section 107A gives a civil remedy to an "aggrieved person" in respect of an interception of a telephonic communication if the interception was in contravention of sub-s 7 (1). A person is an aggrieved person if the person was a party to the communication or the communication was made on the person's behalf. This Court and State and Territory courts are given power to grant a wide range of remedies including a declaration that an interception has been unlawful, injunctive relief, and orders for payment of damages or, subject to a limit, of the amount of the "gross income" derived by the defendant as a result of the interception. Clause 19 of Schedule 1 provides as follows:

"The amendments made by this Part [a reference to Part 2 of Schedule 1 to the TI Amendment Act] apply to the grant of remedial relief as follows:

(a) if the grant is in respect of an interception that contravened subsection 7(1) of the Telecommunications (Interception) Act 1979 - the amendments apply to a contravention that occurs after the commencement of this item; [a reference to cl 19 itself];

(b) if the grant is in respect of a communication of information that contravened section 63 of the Telecommunications (Interception) Act 1979 - the amendments apply to a contravention that occurs after the commencement of this item, even if the information was obtained by an interception that occurred before the commencement of this item [a reference to cl 19 itself]."

In the present case, the TI warrant was issued and the information was obtained by an interception pursuant to it before 12 December 1995, and it is not suggested that there has been any contravention of sub-s 7 (1) or s 63 after that date. Part XA does not make any civil remedy available to the applicant in respect of any contravention which may be shown to have occurred prior to 12 December 1995.

It remains to note the relevant provisions of the Customs Act. Sub- sections 219F (1), (3) and (4) of that Act are as follows:

"219F(1) A person shall not divulge or communicate to another person, or make use of or record, any information obtained by using a listening device for the purposes of narcotics inquiries that are being, or have been, made by officials of a Commonwealth law enforcement agency, being information that has come to his knowledge or into his possession by reason of his being, or having been, an official of the agency or by reason of his having entered into an arrangement with an official of the agency to use a listening device for the purpose of those inquiries, except for the purposes of those inquiries.

Penalty: Imprisonment for 3 years.

(2) ........................................

(3) Without limiting the purposes for which a person may, in accordance with subsection (1), divulge information, a person may divulge or communicate information obtained by using a listening device for the purpose of narcotics inquiries that are being, or have been, made by officials of a Commonwealth law enforcement agency, for a purpose connected with:

(a) the making by an authority, body or person of a decision whether or not to begin a relevant proceeding; or

(b) the conduct of a relevant proceeding.

(4) Where a person is prosecuted before a Court for a prescribed offence, the Court may, in its discretion, refuse to permit information referred to in subsection (3) to be given in evidence in the proceedings if it is satisfied that it would be unfair to the accused to admit the information in evidence." (underlining supplied)

Sub-section 219A (1) defines "Commonwealth law enforcement agency" to mean "the National Crime Authority or the Australian Federal Police". The reference to "narcotics inquiries that are being, or have been, made by officials of a Commonwealth law enforcement agency" is given content by paras 219A (2) (a) and (b) and the expressions "relevant proceeding" and "prescribed offence" are defined in sub-s 219A (1), but I need not stay to discuss the definitions.

It will be noted that the prohibition is against divulging, communicating, making use, and making a record, but not against giving in evidence, information of the kind described in sub-s 219F (1). Moreover, sub-s 219F (1) is directed only to persons who have received information as "officials of a Commonwealth law enforcement agency" or by reason of their having entered into an arrangement with such an official to use a listening device for the purpose of narcotics inquiries being conducted by the agency. In both respects the prohibition is narrower than those contained in s 63 of the TI Act.

THE QUESTIONS RESERVED AND REASONING ON THOSE NOT SUBSTANTIALLY IN DISPUTE

The first respondent's motion seeking an order that the applicant is not entitled, by reason of public interest immunity, to inspect or call for production of Drew's five affidavits listed in his verified list, was before Davies J on 21 June 1996. On and since that time the first respondent has contended that the prohibitions contained in the TI Act and the Customs Act operate of their own force to prohibit production for inspection of any of the five affidavits. For his part, the applicant contends that the statutory prohibitions, properly construed, have such a wide effect that they are invalid for constitutional reasons. Accordingly, questions of construction of the TI Act and the Customs Act, as well as constitutional questions, arise. Notices were given under s 78B of the Judiciary Act 1903 , but no Attorney-General sought leave to intervene.

The questions reserved fall into groups in accordance with a pattern. Question 1 is sui generis. Question 2, relates to the construction and effect, and questions 3 and 4 to the constitutional validity, of the newly introduced prohibitions touching designated warrant information, i.e. the prohibitions contained in sub-s 63 (2), read with the associated s 6EA and para 67 (b). Question 5 relates to the construction and effect, and question 6 to the constitutional validity, of the continuing prohibition touching information obtained from an interception, i.e. the prohibitions contained in sub-s 63 (1), read with the associated s 6E and para 67 (a). Question 7 relates to the construction of the word "person" and the expression "another person" in both sets of prohibitions and question 8 is consequential upon an affirmative answer to question 7. Question 9 relates to the construction and effect, and question 10 to the constitutional validity, of sub-s 219F (1) of the Customs Act. Question 11 relates to the construction of the expression "another person" in that sub-section and question 12 is consequential upon an affirmative answer to question 11.

Paragraphs (a), (b) and (c) of questions 2, 5 and 9 raise, in identical terms, mutatis mutandis, questions as to the proper construction and effect of sub-ss 63 (1) and (2) of the TI Act and 219F (1) of the Customs Act. Paragraph (d) of question 2 and question 4 are "residual" or "catch-all" questions.

It is possible to divide the 12 questions into those dealing with the construction and effect of the three sets of prohibitions (questions 1, 2, 5, 7, 8, 9, 11 and 12) and those dealing with their constitutional validity (questions 3, 4, 6 and 10).

There is considerable overlap as between the considerations relevant to the answering of some of the questions, with the result that the reasons for which a particular answer is to be given to one may be found to yield the answer to another.

It is possible now to identify the questions reserved and, briefly, the ways in which the parties submit they should be answered.

The applicant submits that the correct answer is "yes". The first respondent observes that since s 6EA defines "designated warrant information" as information of various kinds, an affidavit required by s 42, being a document, is not designated warrant information. However, he accepts that any affidavit satisfying s 42 will necessarily contain some designated warrant information. This is plainly correct: the affidavit would, necessarily, at least contain information of the kind referred to in para (b) of s 6EA. Question 1 should be answered: "No, but such an affidavit will necessarily contain designated warrant information."

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

The applicant submits that the answer is "yes". The first respondent submits that the answer is "yes, but only those parts which contain designated warrant information." "Material of the kind referred to in sub-section 63 (2)" is designated warrant information. In my view, the answer suggested by the first respondent is correct, although there seems to be no good reason why the answer should not be in terms of the question asked, "Yes as to those parts which comprise material of the kind specified in sub-section 63 (2)".

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

(a) ........................................;

The applicant submits that the answer is "yes" and the first respondent, "no". I address this question below.

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

(a) ...............; (b) ................. ;

Both parties submit that the answer is "no". I agree. To make the contention referred to in Question 2 (c) does not necessarily involve any of the acts referred to in paras (a) to (d) of sub-s 63 (2).

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

(a) ...; (b) ...; (c) ...;

(d) affect in any other way the conduct of this proceeding?"

The applicant submits that the answer is "yes" and the first respondent says that the question is "unnecessary to answer". In support, the applicant submits that the provisions "will frustrate the conduct of this proceeding" in various ways. I think it inappropriate to answer a question expressed in such broad terms as those of para 2 (d). In any event, the positive answer to question 1 (a) seems to render the question otiose.

The applicant submits that the answer is "no" and the first respondent, "yes". I address this question below.

"4 Are section 6EA, sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 otherwise invalid?"

The applicant submits that the answer is "yes" and the first respondent, "no". I address this question below.

"5 Do sub-section 63 (1) and paragraph 67 (a) of the principal Act operate to:

(a) prevent the first respondent from producing for inspection by the applicant the documents, or those parts thereof which comprise material of the kind specified in sub-section 63 (1), from the list of discovered documents given by the first respondent on 14 November 1995?"

The applicant submits that the answer is "yes". The first respondent submits that the answer is "yes, but only those parts which contain information of the kind specified in sub-s 63 (1)". In my view, the answer suggested by the first respondent is correct, although there seems to be no good reason why the answer should not be in terms of the question asked, "Yes as to those parts which comprise material of the kind specified in sub-section 63 (1)".

"5 Do sub-section 63 (1) and paragraph 67 (a) of the principal Act operate to:

(a) .......................................;

At first the applicant submitted that the answer to question 5 (b) should be "yes". Then he submitted that the answer should be "no", but only on the basis that the Mills open affidavit and its annexures do not contain material of a kind specified in sub-s 63 (1). On the same basis, he submitted, in the alternative, that it is inappropriate that the Court answer the question because it wrongly assumes that the Mills open affidavit and its annexures do contain information of the kind specified in sub-s 63 (1).

Upon attention being drawn to para 33 of Drew's affidavit sworn 26 August 1994, a copy of which was annexed to the Mills open affidavit, the applicant reverted to his original submission that the answer should be "yes". Paragraph 33 is as follows:

"33 Other telephone conversations monitored since the commencement of interceptions have confirmed that KIZON is conscious of police methods of surveillance and has nominated police vehicles used and specified incidents during which he was under observation. As such traditional surveillance methods have been curtailed to the barest minimum and necessity."

Arguably, at least, the first sentence of para 33 is information of a kind referred to in sub-s 63 (1) of the TI Act, that is to say, "lawfully obtained information or information obtained by intercepting a communication in contravention of subsection 7 (1)."

For his part, the first respondent submits that the answer to question 5 (b) is "no" for the same reasons he advances in support of a negative answer to question 2 (b). I address this question below.

"5 Do sub-section 63 (1) and paragraph 67 (a) of the principal Act operate to:

(a) .........; (b) .........;

The parties both submit that the answer is "no". I agree for the reasons, mutatis mutandis, which I gave in relation to question 2 (c) above.

"6 If the answer to any or all of the questions in 5. is 'yes', are sub-section 63 (1) and paragraph 67 (a) of the principal Act valid laws of the Commonwealth?"

The applicant submits that the answer is "No. Alternatively, while sub-s 63 (2) and para 67 (b) of the TI Act continue in force - No". The first respondent submits that the answer is "Yes". I address this question below.

"7 Does:

(a) the word 'person', or

(b) the expression 'another person'

in either or both of sub-section 63 (1) or 63 (2) or in section 67 of the principal Act apply to, or include, the Court in this proceeding?"

Both parties submit that the answer is "no". I agree.

By the operation of para 22 (1) (a) of the Acts Interpretation Act 1901 , unless a contrary intention appears, the word "person" includes "a body politic or corporate as well as an individual". The word "person" does not, in ordinary English usage, refer to a court. A court is not an individual. A court is not a body politic. The Australian Constitution does not make the High Court of Australia a body corporate and the Federal Court of Australia Act 1976 does not make this Court a body corporate. The Third Charter of Justice for New South Wales and the Act 4 Geo IV c96 did not make the Supreme Court of New South Wales, which is continued in existence by s 22 of the Supreme Court Act 1970 (NSW), a body corporate. In my view, no intention appears in the TI Act that the word "person" is to import a reference to a court.

The terms of s 63 itself display an intention that the word "person" is not to refer to a court. Both paras 63 (1) (a) and 63 (2) (a) prohibit communication of information of the kinds with which they are respectively concerned "to another person". If the expression "another person" was intended to encompass a reference to a court, the express prohibitions in paras 63 (1) (b) and 63 (2) (d) against giving the same information in evidence in a proceeding would have been unnecessary.

Authority also favours the view that the word "person" does not encompass a reference to a court. In Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1, Dixon CJ said, with respect to the prohibition in sub-s 16 (2) of the Income Tax and Social Services Contribution Assessment Act 1936 against officers' divulging or communicating certain information "to any person", that courts "would hardly be called persons" (at 6). This view was followed by single judges in Queensland in Stapleton v Wilson [1956] QWN 48 and Geraghty v Woodforth [1957] QWN 41, and in Victoria in Cowan v Stanhill Estates Pty Ltd [1966] VR 604.

In Miller v Miller [1978] HCA 44; (1978) 141 CLR 269, in the context of the prohibition in sub-s 5 (3) of the Telephonic Communications (Interception) Act 1960 against divulging or communicating to another person, or making use of or recording, any information obtained by intercepting a conversation passing over the telephone system, Gibbs J (at 277) expressed doubt whether a court was "another person" for the purpose of the sub-section. However, Jacobs J (at 279) said that "[t]he divulging or communicating by the person as a witness" would be contrary to the prohibition. It may be that his Honour had in mind a voluntary divulging or communicating as a witness, not to the court, but to others such as members of the public present at the hearing (but see the next paragraph).

In R v Padman [1979] Tas R 37, Crawford J held that the same prohibition did not prohibit divulging or communicating information to a court. His Honour expressly did not distinguish between divulging the information to a judge and jury on the one hand and to "any public who are present in the court" (at 41) on the other. His Honour did not, however, refer to the passage from the judgment of Jacobs J in Miller v Miller referred to above.

In Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57, the majority (Gibbs CJ, Wilson and Dawson JJ - at 67) and the minority (Mason, Deane JJ - at 87) thought that the similar prohibition in the then sub-s 7 (4) of the Telecommunications (Interception) Act 1979 against divulging or communicating "to another person" did not catch the giving of the information in question in evidence to a court. The majority noted the "doubt" which had been expressed by Gibbs J in Miller v Miller, supra, that a court fell within the expression "another person" in the prohibition, and the adoption and application by Crawford J in R v Padman, supra, of what their Honours referred to as Gibbs J's "view". The minority also cited the passage from the judgment of Gibbs J. However, like Padman J, neither the majority nor the minority referred to the passage from the judgment of Jacobs J referred to above.

The construction favoured by the High Court in Hilton v Wells was subsequently followed by Wilcox J in Duff v McCulloch (1985) 11 FCR 237 at 241, by Davies J in Brown v Commissioner of the Australian Federal Police (1988) 83 ALR 477 at 480, and by Kirby P, with whom Gleeson CJ agreed on the point, in John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 ("Fairfax v Doe") at 111C. In Green v R (1996) 135 ALR 181 it was conceded, on the authority of Hilton v Wells, that a court was not a "person" within the meaning of ss 5A and 63 of the TI Act. Importantly, a Full Court of this Court held in Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368; (1986) 12 FCR 257, after referring to earlier single judge decisions to the same effect, that the similar prohibition in sub-s 16 (2) of the Income Tax Assessment Act 1936 against divulging or communicating information "to any person" "plainly could not apply to a court" (at 262).

But for the possible exception of the obiter dictum of Jacobs J in Miller v Miller, supra, the authorities to which I have referred all favour the view that at least in contexts such as the present one, a court is not a "person".

It is for the foregoing reasons that I agree with the parties that Question 7 should be answered "no".

Both parties submit that it is unnecessary that this question be answered. Since the answer to none of "the questions in 7" is "yes", I agree.

"9 Does sub-section 219F of the Customs Act 1901 operate to:

(a) prevent the first respondent from producing for inspection by the applicant the documents, or those parts thereof which comprise material of the kind specified in sub-section 219F (1), from the list of discovered documents given by the first respondent on 14 November 1995?"

The applicant submits that the answer is "yes". The respondent submits that the answer is "yes, but only those parts which contain information of the kind specified in sub-s 219F (1)". I address this question below.

"9 Does sub-section 219F of the Customs Act 1901 operate to:

(a) ......................................;

Both parties submit that the answer is "no". I agree. The applicant is not an official of a Commonwealth law enforcement agency or other person referred to in sub-s 219F (1) to whom the prohibition contained in the sub-section applies.

"9 Does sub-section 219F of the Customs Act 1901 operate to:

(a) ................; (b) ................;

Both parties submit that the answer is "no". I agree for the reasons, mutatis mutandis, which I gave in relation to Question 2 (c) earlier.

"10 If the answer to any or all of the questions in 9. is 'yes', is sub-section 219F (1) of the Customs Act a valid law of the Commonwealth?"

The applicant submits that the answer is "No. Alternatively, while sub-s 63 (2) and para 67 (b) of the principal Act continue in force - No". The respondent submits that the answer is "yes". I address this question below.

"11. Does the expression 'another person' in sub-section 219F (1) of the Customs Act apply to, or include, the Court in this proceeding."

Both parties submit that the answer is "no". I agree generally for the reasons which I gave earlier in relation to question 7.

Both parties submit that it is unnecessary that this question be answered. Since the answer to question 11 is "no", I agree.

It can be seen that the questions remaining to be addressed are 2 (b), 3, 4, 5 (b), 6, 9 (a) and 10. These questions are addressed in the next section.

REASONING ON THE QUESTIONS REMAINING TO BE ADDRESSED

Question 2 (b)

"2 Do sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 operate to:

(a) ........................................;

The terms of the prohibition in sub-s 63 (2), the definition of "designated warrant information" in s 6EA, and the "permitted purpose" exception in favour of agencies provided for in para 67 (b) of the TI Act, were all set out earlier. The terms of the Mills open affidavit were not set out earlier, although a brief account of that affidavit was given.

Question 2 (b) concludes with the words "to the extent that such affidavit [the Mills open affidavit] and annexures contain material of the kind specified in sub-section 63 (2)." Material of that kind is designated warrant information. The question assumes that the Mills open affidavit and the edited versions of the five affidavits which were relied on to support the applications for the LD warrant and the TI warrant annexed to that affidavit, may contain designated warrant information.

Two questions should be addressed at the outset. The first preliminary question is whether "placing reliance upon" designated warrant information is caught by one or more of the prohibitions contained in sub-s 63 (2) of the TI Act (communicating, making use, making a record, or giving in evidence). The second is whether, if placing reliance on designated warrant information is caught by one or more of those prohibitions, the exception provided by para 67 (b) or that provided by sub-s 74 (3) applies.

The applicant may place reliance on designated warrant information contained in the Mills open affidavit and its annexures in various ways, with a view to demonstrating that the first respondent's claim of public interest immunity is not made out. The applicant, may make submissions by reference to that information and may tender it or parts of it as admissions. In placing reliance on the designated warrant information in these ways, the applicant would certainly "make use of" it (cf para 63 (2) (b)), and possibly also "communicate [it] to another person [such as his legal advisers]" (cf para 63 (2) (a)) and "give [it] in evidence in a proceeding" (cf para 63 (2) (d)).

The terms of s 67 were noted earlier. Relevantly, the section would permit only an officer of the AFP or of the Police Force of Western Australia to "communicate", "make use of" or "make a record of" the designated warrant information, and in such a case, to do so only "for a permitted purpose". The definition of the expression "permitted purpose" in sub-s 5 (1) was noted earlier. It includes a purpose connected with "a relevant proceeding in relation to [an] agency or eligible authority [of a State]". The "definition" of "relevant proceeding" in s 6L was also noted earlier. The only paragraph of the definition of "relevant proceeding" which might arguably encompass the present proceeding is para (f) which I discuss below.

I turn next to the exception provided for in s 74. If the applicant were to place reliance on the designated warrant information by "giving [it] in evidence in [this] proceeding" within the meaning of para 63 (2) (d), the question would arise whether sub-s 74 (3) would apply. That sub-section provides that "a person" (including a private individual such as the applicant) may give designated warrant information in evidence in an "exempt proceeding". The only paragraph of the "definition" of "exempt proceeding" in s 5B which might arguably encompass the present proceeding is para (f).

In my view, the present proceeding is not one which "relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State" within the meaning of para (f) of either s 5B or sub-s 6L (1). In the case of each provision, para (f) takes colour from the immediately preceding para (e), as well as from the use of the identical expression, "alleged misbehaviour, or alleged improper conduct" in paras (b) and (c) of the definition of "permitted purpose" in sub-s 5 (1). The opening words "any other" in para (f) of s 5B and para (f) of sub-s 6L (1) suggest that the kind of proceeding to which the paragraph refers has something in common with, in the one case, "a police disciplinary proceeding" the subject of para (e) of s 5B, and, in the other case, with "a police disciplinary proceeding that is a proceeding against a member of the Australian Federal Police, or of that Police Force [a Police Force of a State]" the subject of para (e) of sub-s 6L (1). Moreover, in paras (b) and (c) of sub-s 5 (1)'s definition of "permitted purpose", the expression with which we are concerned is used to signify something of a kind that is apt to be the subject of an "investigation" or "inquiry" and to be the cause of "termination" of appointment to an office.

In my view, para 5B (f)'s and para 6L (1) (f)'s reference to a proceeding relating to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State, is a reference to alleged misbehaviour or improper conduct of a kind commonly associated with disciplinary action against an employee or office-holder, such as dismissal, removal from office or other sanction. The alleged non-disclosure by Drew in breach of the pleaded duty uberrima fides incumbent upon him as applicant for a TI warrant, to make full and frank disclosure to the third respondent by disclosing that he had no reasonable or proper basis for believing that the applicant had been or was involved in the offence or offences referred to on the face of the warrant, belongs, in my opinion, to a different realm of discourse. It is not amiss to observe that far from treating Drew's conduct as misbehaviour or impropriety, the first respondent defends it.

The construction of the expression "alleged improper conduct" adopted by Merkel J in Carmody v Phillips, unreported, 5 September 1996, VG 875/1995, differs from that which, with respect, I think, for the reasons which I have sought to explain above, to be preferable. While the meaning of the expression no doubt depends on the context in which it is used, the matters to which I have referred and the particular expression's conjunction with that of "alleged misbehaviour" seem to me to point to a "narrower" construction than that which appealed to his Honour.

I turn now to the more substantial issue raised by Question 2 (b). In my view, the definition of "designated warrant information" and the various provisions which invoke it are to be read purposively. Sub- section 15AA (1) of the Acts Interpretation Act 1901 so requires. That familiar provision is as follows:

"15AA(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

A purposive construction is necessary to avoid absurdity. It would be absurd that the prohibitions in s 63 should continue to apply to information of a kind referred to in the definition of "designated warrant information" once that information is in the public domain by, for example, having been given in evidence publicly in a prosecution. There is no provision in Part VII of the TI Act which expressly permits further divulging of designated warrant information which has been publicly given in evidence in a prosecution, yet according to a non-purposive construction, the prohibition would prevent a reporting of the evidence. This result cannot have been intended.

Specific support for a purposive approach is found in the text of the definition of "designated warrant information" itself. The opening words of para (b) of the definition, "any other information that is likely to enable the identification of", suggest that para (a) is concerned with information about the fact that a TI warrant was or will be applied for (sub-para (i)), was issued (sub-para (ii)), existed or exists or did not or does not exist (sub-para (iii)), or expired or will expire (sub-para (iv)), which will enable identification of that which was not previously identified, namely, the particular telephone service in question or the particular person specified in the warrant as a person using or likely to use that service (see ss 45 and 46 of the TI Act).

Finally, there is authoritative support for a purposive approach to the construction of Part VII is found in John Fairfax v Doe at 87E (Gleeson CJ) and Green v R (1996) 135 ALR 181 at 185-186 (Franklyn J). (These cases were concerned with the "continuing prohibition" which existed prior to the enactment of sub-s 63 (2) with effect from 12 December 1995, but their Honours' observations are equally applicable to the new prohibition).

In the present case, the designated warrant information is supposedly contained in the Mills open affidavit, its annexures or both. That affidavit and those annexures have been read by the applicant and were intended by the first respondent to be read by him. No purpose to which s 63 is directed would be served by construing the section as preventing the applicant from relying on the affidavit and its annexures. In my view, sub-s 63 (2), importing as it does the definition of "designated warrant information" in s 6EA, is to be read down so that the descriptions of the acts in the paragraphs of the subsection do not catch those acts as they apply to designated warrant information already known to all relevant parties.

Question 2 (b) should be answered "No".

Question 3

Only one of the four questions in 2 has arguably been answered "Yes". As previously indicated, in my view, Question 2 (a) should be answered "yes, as to those parts which comprise material of the kind referred to in sub-s 63 (2)." Since it is clear that some of the documents in the discovery list must contain designated warrant information (see the discussion under Question 1 earlier), it is appropriate to proceed on the basis that Question 3 requires an answer.

The applicant submits that the provisions referred to lie outside the legislative power of the Commonwealth Parliament under the Constitution. In support, he makes three submissions. It will be convenient to deal with them separately, although they are interrelated. They are as follows:

A. As a matter of construction of s 51 (v) of the Constitution, the Parliament lacked the necessary legislative power to enact the prohibitions contained in sub-s 63 (2).

B. The prohibitions in sub-s 63 (2) are inconsistent with the freedom of communication on matters relating to the government of the Commonwealth implied in the Constitution.

C. The prohibitions in sub-s 63 (2) destroy the capacity of the court to determine whether there has been any excess of power, and so (a) intrude into the judicial power which Chapter III of the Constitution vests exclusively in the courts there referred to, and (b) derogate from the direct vesting of judicial power in the High Court effected by s 75 (iii) and (v) of the Constitution.

Before I consider these three grounds of attack, two matters should be noted. First, it is appropriate to recall certain limits inherent in the nature of the answer given to Question 2 (b). That answer is that sub-s 63 (2) prevents the first respondent from producing for inspection by the applicant those parts of the first respondent's discovered documents which comprise designated warrant information. As noted earlier, designated warrant information is limited to information which enables a person to whom the information is revealed to identify a particular telecommunications service or person, as being the subject of a TI warrant. Further, sub-s 63 (2) does not prevent a person from compelling production of the documents in question to this or to any other court by the process of subpoena: Question 2 (a) has been answered affirmatively because it relates to production to a person as distinct from a court. Having compelled production of the documents to a court in which a person such as the applicant is being prosecuted for a prescribed offence, the person would be entitled to give the designated warrant information in evidence in that proceeding in the course, for example, of a hearing, on the voir dire, of the question of the admissibility into evidence against the person charged, of information obtained by the interception of a telecommunications service pursuant to the warrant.

The second matter to which I referred is that the purpose of the prohibition contained in sub-s 63 (2) is not only one of protecting privacy. The prohibition against the disclosure of designated warrant information is also directed to assisting law enforcement. Contravention of sub-s 63 (2) is, on its face, inimical to the processes of law enforcement, because it enables identification of a particular telecommunications service or person the subject of a TI warrant. In addition, the genesis of the prohibition makes clear that the assisting of law enforcement was one of the purposes of its enactment (see paras 4.3.7 and 4.3.8 and recommendation (9) of the report dated 1 March 1994 entitled "Review of the Long Term Cost Effectiveness of Telecommunications Interception" by Pat Barrett of the Commonwealth Department of Finance which is referred to in the report by the Senate Legal and Constitutional Legislation Committee dated March 1995 on the Bill for the TI Amendment Act).

"A. As a matter of construction of s 51 (v) of the Constitution, the Parliament lacked the necessary legislative power to enact the prohibitions contained in sub-s 63 (2)."

Section 51 (v) of the Constitution is as follows:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:-

(v) Postal, telegraphic, telephonic, and other like services: ..."

The applicant submits that in order for the provisions in question to be provisions "with respect to ... telephonic ... services", they must be "reasonably proportional" or "reasonably and appropriately adapted" to achieve the object, end or purpose of s 51 (v). He also submits that they must be "reasonably appropriate to effectuate the exercise of the power conferred by s 51 (v)". He relies on Alexandra Private Geriatric Hospital Pty Ltd v The Commonwealth [1987] HCA 6; (1987) 162 CLR 271 at 281 (Mason ACJ, Wilson, Brennan, Deane, Dawson JJ); Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 ("Nationwide") at 26-30 (Mason CJ), 93-94 (Gaudron J), 101, 103-105 (McHugh J); Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 100 (Mason CJ, Deane, Dawson JJ); and Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 ("Cunliffe") at 297 (Mason CJ), 318 and 320-321 (Brennan J). In particular, he submits that where a law is to be supported by the implied incidental aspect of a constitutional head of power, a test of reasonable proportionality applies, and that in the present case, the provisions attacked may be supported only by the implied incidental aspect of the power given by s 51 (v).

The first respondent submits that a "test of proportionality" is inappropriate in the circumstances of the present case and that the question to be asked is simply whether the provisions, by reference to their operation and effect, have a sufficient connection with the head of legislative power. The first respondent submits, in this regard, that it is necessary to distinguish between a head of power such as that in s 51 (v), and purposive heads of power, such as the defence power in s 51 (vi), as to which proportionality may have a role to play.

In my view the present question is resolved in favour of the validity of the provisions by what was said in Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12; (1993) 176 CLR 555 ("Northern Suburbs"), Cunliffe, and Leask v The Commonwealth [1996] HCA 29; (1996) 140 ALR 1 ("Leask") (judgment was delivered in Leask on 5 November 1996, after the hearing of the present case).

In Northern Suburbs, Mason CJ, Deane, Toohey and Gaudron JJ distinguished between the character which a law bears "on its face" and a purpose which the Parliament had in enacting it. According to their Honours, the former is, and the latter is not, relevant to characterising the law in relation to at least most of the placita of s 51 of the Constitution. They said (at 569) that if a law was one "with respect to" the subject matter of a particular head of power, it did not cease to be so simply because Parliament had sought to achieve, by its enactment, a purpose not within Commonwealth legislative power. Dawson J's judgment was to a similar effect (at 589).

In Cunliffe, it is made clear that a proportionality test becomes relevant only where it is sought to support the validity of the law by reference to the end or object of a head of power. Cunliffe concerned Part 2A of the Migration Act 1958 which established a registration system for persons who, for reward, gave "immigration assistance" or who made "immigration representations", and, subject to certain exceptions, prohibited a person who was not a "registered agent" from doing so. There were other prohibitions and offences were created, directed to supporting the registration system. The legislation was held to be valid as a law with respect to aliens within s 51 (xix) of the Constitution, without resort to any "principle of proportionality".

Mason CJ said (at 296):

" ... in those cases in which the validity of a law depends upon its being characterised as a law directed to carrying out the relevant head of power by providing for a matter incidental to its subject matter, it may be material to ascertain whether the law is capable of being 'reasonably considered to be appropriate and adapted' to that purpose or object, that is, whether the law satisfies the criterion of reasonable proportionality."

It is important to read this passage in the context of what immediately precedes it. At the preceding page (295), his Honour had held that the provisions in question had a sufficient connection with the "core or heart" of the subject matter of the aliens power, or alternatively, that they had an application "to that which is incidental to the subject matter of the power." The first two sentences on p 296 under the heading "The concept of proportionality as an element of characterisation" are as follows:

"What I have said is enough to dispose of the plaintiffs' first contention. But, having regard to the arguments presented, I should make some comments on aspects of those arguments."

In sum, his Honour's observations in relation to proportionality were in the nature of obiter dicta "having regard to the arguments presented" (at 296), and his Honour did not regard the provisions with which he was concerned as attracting them.

Brennan J observed (at 321):

"Proportionality ... is a helpful tool in determining whether a law is appropriate and adapted to achieving a stated purpose but that exercise need not be undertaken unless the connexion with the relevant head of power is more clearly revealed by its purpose than by its effect and operation. The central and peripheral aspects of a power do not evoke different tests of validity; it is simply a fact of constitutional reasoning that connexion between a law and a head of power is more frequently revealed by purpose than by effect and operation when the law is on the periphery of the power. Or, it should be added, when the head of power is purposive in its nature, eg, the defence power. It is in such a case that proportionality has a role to play."

His Honour did not, contrary to the applicant's submission in the present case, accept that in all cases in which validity depends on the implied incidental aspect of a power, reasonable proportionality is a necessary criterion of validity. His Honour went on to discuss two classes of case in which a test of proportionality has been invoked: cases of purposive heads of power, and cases of powers restricted by a limitation. In my view the present case is not within either category.

Deane J (at 334), Dawson J (at 358-360), Toohey J (at 375), Gaudron J (at 387) and McHugh J (at 394-395) expressed the view that the law was properly characterised as a law with respect to aliens without distinguishing between the core and incidental aspects of the power, and their Honours did not need to address the present question. (Toohey J made some observations on "[r]easonable proportionality and the incidental power" at 375-377 but not in ways which give substantial assistance in the resolution of the present question.)

Ordinarily the question whether a law is one "with respect to" the subject matter of a head of power can be expected to be resolved by a comparison between the operation and effect of a law on its face and that subject matter: see Cunliffe at 319-320 (Brennan J), 354- 355 (Dawson J); Nationwide at 27-29 (Mason CJ), 86-88 (Dawson J), 93 (Gaudron J). Ordinarily, any notion of proportionality will be found to be irrelevant to this exercise. Although it has been common to speak of the "core" and "incidental ambit" of the heads of power specified in s 51 of the Constitution, it is important to recall that "the power is an entirety" and "there is but a single grant" (Cunliffe at 318 (Brennan J), 375 (Toohey J); both of their Honours referred to Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 at 177 (Dixon CJ)). To apply a test of reasonable proportionality as a matter of course where an implied incidental aspect of a head of power is relied on suggests a bifurcation which is inconsistent with the single and uniform nature of the head of power.

The subject of "proportionality" in the present context was considered to varying extents by all seven members of the High Court in Leask. The judgments stress the limited role of the concept. The question before the Court was whether sub-s 31 (1) of the Financial Transaction Reports Act 1903 (1988) was a valid law of the Commonwealth. Section 7 of that Act imposed on a "cash dealer" (a person whose business involved cash transactions) an obligation to report certain transactions to which the dealer was a party. They were transactions involving the transfer of $10,000 or more in currency. Section 31 created an offence directed to preventing the evasion of the reporting obligation by splitting a total amount exceeding $10,000 into amounts of less than that sum, and transferring currency in those lesser amounts in a series of separate transactions. All members of the Court agreed in upholding the law as a law "with respect to" "currency" within s 51 (xii) of the Constitution.

Because so much of the judgments in Leask are directly relevant to the present question, I think, it desirable to refer to them at some length (references to authorities are omitted). Brennan CJ said (at 6):

"The character of an Act is determined by its operation and effect: its operation by reference to the rights, duties, powers or privileges that the Act creates or affects; its effect by reference to its operation in the circumstances to which it applies."

After referring to Cunliffe, the Chief Justice added (at 7):

"As Dawson J says, the purpose of the law is an aspect of 'what the law does in fact' so that the basic test of validity remains one of sufficient connection between the operation and effect of the law on the one hand and the head of power on the other. If the head of power is itself purposive (for example, the defence power), the existence of a connection may be determined more easily by comparing the purpose of the law and the purpose of the power. But if the relevant head of power is non-purposive (as the taxation and currency powers are non-purposive) the validity of the law is more likely to be determined by reference to its operation and effect.

The question for determination is therefore whether s 31 (1), by its operation and effect, reveals a sufficient connection with either 'taxation' or 'currency, coinage, and legal tender'. The operation of s 31 (1) must be collected from its terms." (underlining supplied)

His Honour adhered to the view which he had expressed in Cunliffe (at 321) that the concept of proportionality might be useful to ascertain whether an Act achieved an effect or purpose within power, but emphasised that it had "nothing to say about the appropriateness, necessity or desirability of the law to achieve an effect or purpose or to attract the support of the power" (at 8).

Dawson J generally rejected the utility of the concept of proportionality, as the passages quoted below from his Honour's judgment show:

"To say that a law is not reasonably capable of being seen as appropriate and adapted to achieving an object or purpose within power or is not reasonably proportionate to some object or purpose within power is to posit a proposition or propositions which do not assist in determining the validity of the law. The expressions are borrowed from other jurisdictions and their usefulness is limited; indeed, it may be thought that they confuse rather than clarify the processes by which the validity of a law under our Constitution must be determined." (at 13 - underlining supplied)

After referring to the European origin of the concept of "reasonable proportionality", his Honour referred to "the inappropriateness of such a concept in Australian constitutional law where legislative power is, with few exceptions, conferred by reference to subject matter rather than aims or objectives", and said:

"The fact that the legislative powers conferred upon the Commonwealth Parliament by s 51 of the Constitution are expressed to be with respect to subject matters means that a law is within power if the acts, facts, matters or things upon which it operates fall within the description of one or more heads of power." (at 15)

"Putting purposive powers to one side, so far as I am able to discern, the attempt to [introduce the concept of proportionality] has been made only in relation to the incidental power which is to be implied as an aspect of each of the substantive heads of power in s 51, that is to say, the power to legislate with respect to all those things which are reasonably incidental to the complete fulfilment of the power. In this context it is important to appreciate that, while it is correct to speak of implied incidental powers, each head of power is but one grant of power. As Brennan J said in Cunliffe 'the core and incidental aspects of a power are not separated; the power is an entirety.' No doubt as one moves closer to the outer limits of a power, the purpose of a law which lies at 'the circumference of the subject [matter of the power] or can at best be only incidental to it' becomes important, because 'by divining the purpose of a law from its effect and operation, its connection with the subject of the power may appear more clearly'. 'Purpose' in that connection is merely an aspect of what the law does in fact and the test remains one of sufficient connection. If that connection is established, it matters not how ill- adapted, inappropriate or disproportionate a law is or may be thought to be." (at 15-16)

"But as I have said, most heads of power do not have an end or purpose other than the authorisation of legislation upon their subject matter and whether a law is upon a subject matter depends upon its connection with that subject matter." (at 17)

" ... it is my view that the relevant test of the validity of a law made under one of the substantive heads of power in s 51 of the Constitution is that of sufficiency of connection with its subject matter. That is so whether or not in characterising the law it is necessary to invoke the implied incidental power. ... Whatever the position may be in other legal systems, the terms 'appropriate and adapted' and 'reasonable proportionality' are best avoided when enunciating a test to determine whether a law exceeds a non-purposive head of power under s 51 of our Constitution.

The situation may be different where the purpose of a law is a crucial determinant of validity, as it is where a power is conferred in purposive terms. Taking the defence power for example, a court must ask whether a law is for the purpose of defence. There is no subject matter as there is with other powers - lighthouses or external affairs, for example - and it is therefore not possible to delineate the boundaries of the power by reference to subject matter: ..." (at 18 - underlining supplied)

Toohey J was of the view that concepts of proportionality had no part to play in the appeal. His Honour said that he remained of the view, to which he had referred in Cunliffe, that:

" ... the place of reasonable proportionality in the characterisation of the law is where there is a tension between two operative principles."

and that

"This is most likely to arise as between an express grant of power under s 51 of the Constitution and some implied freedom, for instance an implied freedom of communication." (both at 25)

His Honour also repeated (at 25) the following two sentences from his judgment in Cunliffe (at 376):

"The implied freedom [of communication] does not override the express grant of power. Rather, it points to the likely limits of the express grant."

Gaudron J agreed with Toohey J that the concept of proportionality had no part to play in the appeal, while expressing adherence to the view which she had expressed in Nationwide (at 93-94), that proportionality "is one of several considerations that may be taken into account in determining purpose, whenever that is in issue and for whatever reason, and, also, in determining whether a law is relevantly connected with a particular subject or with a head of constitutional power." (at 26)

McHugh J considered that where the dominant subject matter of an impugned law is not itself a head of federal power, but the law has ostensibly been passed to achieved some purpose falling within a subject of Commonwealth power, the "sub-test of proportionality may sometimes prove helpful in determining whether the subject matter of the impugned law is sufficiently connected to the subject of federal power." (at 27) However, his Honour stressed that it was necessary to recall that in such a case proportionality is no more than a guide to "sufficiency of connection" (at 27).

Gummow J referred, with approval, to the statement by McHugh J in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368-9 that in determining whether a law is one "with respect to" a head of power in s 51, first, the character of the law must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates, and secondly, a judgment must be made as to whether the law as so characterised so operates that it can be said to be connected with a head of power conferred by s 51. His Honour considered that the question before the Court was whether sub-s 31 (1) operated upon or affected the subject matter of currency, and that its validity did not turn upon the end or objective for the attainment of which the legislation operated. It was not necessary, in his view, that there be recourse to ancillary or incidental legislative power. His Honour added the following remarks which, in my view, apply in the present case:

"The legislation rests upon a 'non-purposive' power. The concept of 'proportionality' has no part to play here. In a case such as the present, 'proportionality' is an inappropriate and impermissible tool of constitutional interpretation. The issue is not whether the concept of 'proportionality' may be seen as useful, it is whether its application is permissible in dealing with non-purposive powers." (at 33)

Perhaps this statement is all the more significant in the light of the fact that his Honour, when a member of this Court, had acknowledged that "the proportionality doctrine has taken root and, indeed, extended its reach into the heartland of federal constitutional law": Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 576.

Kirby J found it difficult to accept that proportionality might be an appropriate criterion for some heads of power in s 51 but not for others. His Honour said that "recent cases suggest a growing acceptance of the notion as a useful test of general application" (referring to Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 at 286), and that proportionality "may sometimes be helpful in the context of constitutional characterisation" (at 41 and 42 respectively). His Honour considered that sub-s 31 (1) was supported by the taxation power of s 51 (ii) but expressed doubt as to whether it was supported by the "currency" power of s 51 (xii).

The Commonwealth Parliament's power to make laws with respect to telephonic services found in s 51 (v) of the Constitution is a non- purposive power. It is necessary to identify the operation and effect of the impugned provisions and to inquire as to the sufficiency of connection between them and the subject matter, "telephonic services".

The long title of the TI Act is:

"An Act to prohibit the interception of telecommunications except where authorised in special circumstances or for the purpose of tracing the location of callers in emergencies, and for related purposes."

Sub-section 7 (1) of the TI Act contains prohibitions directed against the interception of communications passing over a telecommunications system. As noted earlier, this provision is central to the TI Act. Much of the remainder of the Act is concerned to delineate exceptions to sub-s 7 (1). Thus, para 7 (2) (b) provides:

"(2) Subsection (1) does not apply to or in relation to:

(b) the interception of a communication under a warrant; ..."

The expression "warrant" is defined in sub-s 5 (1) to mean, relevantly, a warrant issued under the TI Act.

In prohibiting interception and closely confining the exceptions to the prohibition, the TI Act makes for the confidentiality of telephonic communications, and thus the utility of telephonic services. Laws having that effect are "laws with respect to ... telephonic services", in my view. The general prescription in sub-s 7 (1) and the exception to it under para 7 (2) (b) which respectively create and continue the prohibition, have that effect.

Section 63 further safeguards the confidentiality of telephonic communications. It does so by prohibiting, subject to Part VII in which the section occurs, the communication, making use of, making of a record of, or giving in evidence of, first, information obtained by a telephone interception, and secondly, designated warrant information. In this way, the operation and effect of s 63 are also those of increasing the utility of telephonic services. The prohibition in relation to designated warrant information, at least, also safeguards the processes of law enforcement, as noted earlier, but this does not signify that it does not also protect privacy.

The operation and effect of s 63 referred to above show that it is a law with respect to telephonic services. Section 67 carves out an exception to the "communication", "making use" and "making a record" prohibitions of s 63, and s 74 carves out an exception to the "giving in evidence" prohibition of s 63. These exceptions contribute to the delineation of the extent of the prohibitions created by s 63, and so form an essential part of the "map" of the prohibited territory, which it creates. Accordingly, they are part and parcel of s 63's protection of the confidentiality of telephonic communications and advancement of the utility of telephonic services.

The reference in question 3 to s 34 of the TI Amendment Act is an error: the reference should be to cl 34 of Schedule 1 to the TI Amendment Act. But, that clause provides no more than that the amendments made to the TI Act by Part IV of the Schedule (the provisions relating to designated warrant information) apply in relation to a warrant issued before or after the commencement of cl 34. No independent submissions were addressed to the backward reach of the amendments to encompass warrants issued prior to 12 December 1995. It was not submitted, for example, that the element of retrospectivity renders the provisions not ones "with respect to ... telephonic ... services" and I do not think that it does.

In my view, the provisions in question fall well within the scope of the "telephonic services" power. If it is necessary to speak in terms of the "core" and the "incidental ambit" of the scope of the power, I think that the provisions fall within the core. With respect, I agree with the observations made in Fairfax v Doe by Gleeson CJ (at 89F,G) and Kirby P (at 108D) to the effect that the former s 63 (now apparently sub-s 63 (1)) is at the core of the Commonwealth's power to legislate with respect to telephonic services. In my view, the new prohibitions introduced as from 12 December 1995 by the TI Amendment Act are no different in this respect and are likewise at the core of that power.

For the foregoing reasons, in my view the present submission of the applicant fails.

"B. The prohibitions in sub-s 63 (2) are inconsistent with the freedom of communication on matters relating to the Government of the Commonwealth implied in the Constitution."

In support of the second basis of attack on sub-s 63 (2), the applicant relies on Nationwide at 48-49 (Brennan J), 72-74 (Deane, Toohey JJ); Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 ("ACT") at 139, 142 (Mason CJ), 217 (Gaudron J), 231 (McHugh J); and Cunliffe, at 298 (Mason CJ), 329 (Brennan J), 379 (Toohey J). As well, he relies on Langer v The Commonwealth [1996] HCA 43; (1996) 134 ALR 400 at 419 (Dawson J).

This ground of challenge may be disposed of relatively briefly. The statements which may be relied on as lending some support to the existence of an implied constitutional freedom of communication have all been referable to the system of democratically elected representative government for which the Constitution provides. They do not support a proposition that the Constitution guarantees a general freedom of communication. The prohibitions in s 63 of the TI Act do not touch upon such matters as elections, political discourse, public affairs or the holding of public office, which may, arguably, be the subject of implied protections to be found in the Constitution.

The limited nature of the implied freedom of communication recognised in Nationwide and in ACT was acknowledged by the High Court in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 ("Theophanous") at 121 (Mason CJ, Toohey, Gaudron JJ), and has been referred to elsewhere (see F A Trindade, "Political Discussion and the Law of Defamation" (1995) 111 LQR 199 at 204-205; A R Blackshield, "The Implied Freedom of Communication" in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (The Federation Press, 1994) at 239 ff; P Hanks, Constitutional Law in Australia (2nd ed, Butterworths 1996) at 555-556). The judgment in Theophanous was delivered on the same day as that in Cunliffe, in which the descriptions of the freedom in question reveal its limited nature (see esp Brennan J at 326-328, Deane J at 335-338, Dawson J at 360-364, Toohey J at 379, Gaudron J at 387-389, McHugh J at 395). There are also passages which stress the limited basis and scope of the implied freedom of communication recognised in ACT and Nationwide and its dependence on the text or structure of the Constitution in the judgments of the majority in McGinty v Western Australia [1996] HCA 48; (1996) 134 ALR 289 at 295-296 (Brennan CJ), 303-308 (Dawson J), 345, 348, (McHugh J) and 390-392 (Gummow J), and the judgment of Gummow J in Langer v The Commonwealth, supra, at 431.

In Fairfax v Doe, the New South Wales Court of Appeal held by majority (Gleeson CJ (at 90A) and Kirby P (at 107-109)) that the former prohibition contained in s 63 (now apparently sub-s 63 (1)) of the TI Act was valid, and, in particular, was not inconsistent with the implied right to freedom of speech which had been recognised in ACT and Theophanous. I see no relevant difference in this respect between the continuing prohibition now found in sub-s 63 (1) which was the subject of that decision, and the new prohibition located in sub-s 63 (2).

In my view, the applicant's present submission should be rejected.

"C. The prohibitions in sub-s 63 (2) destroy the capacity of the Court to determine whether there has been any excess of power, and so (a) intrude into the judicial power which Chapter III of the Constitution vests exclusively in the courts there referred to, and (b) derogate from the direct vesting of judicial power in the High Court effected by s 75 (iii) and (v) of the Constitution."

The application in the present proceeding, in so far as it relates to the TI warrant, relies on s 39B of the Judiciary Act. The jurisdiction of the High Court has not been invoked, but in such circumstances the High Court has, in the past, regarded it as convenient to deal with questions of validity as if s 75 (v) of the Constitution was applicable; cf Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168. The following considerations in relation to s 75 (v) apply equally to s 75 (iii) of the Constitution.

Paragraph 63 (2) (d) has the effect of prohibiting a person who wishes to challenge the validity of a TI warrant in administrative review proceedings from putting into evidence the written application for the warrant referred to in sub-s 40 (1) and s 41, and the accompanying affidavit referred to in s 42. (As well, it would prevent the giving of evidence of the content of an application made by telephone pursuant to sub-s 40 (2) and oral information given in support pursuant to s 43, and any further information given orally pursuant to s 44, but for convenience I will refer to written applications only.)

As noted previously, the applicant would be entitled to give designated warrant information in evidence in the course of a challenge on the voir dire to the tender of the information obtained by an interception pursuant to a TI warrant in a prosecution of him. This arises from the facts that (i) sub-s 74 (3) provides that a person may give designated warrant information in evidence in an exempt proceeding; (ii) by para 5B (a), the expression "exempt proceeding" refers to, inter alia, "a proceeding by way of a prosecution for a prescribed offence"; and (iii) the expression "prescribed offence" is defined in sub-s 5 (1) in such a manner as to include the offence allegedly committed by the applicant, namely, conspiring to possess 19.409 kilograms of cannabis with intent to sell/supply contrary to para 6 (1) (a) and sub-s 33 (2) of the Misuse of Drugs Act 1981 (WA). Conformably with what a Full Court of this Court said in Flanagan v Commissioner of Australian Federal Police (1996) 134 ALR 495, a challenge to a warrant directed to the admissibility of evidence in a trial should ordinarily be brought as part of the trial in order to avoid "fragmentation" of the trial. But persons whose telephone conversations have been intercepted pursuant to an invalid warrant may not be prosecuted at all. Accordingly, the present constitutional attack on the validity of the TI warrant is not fully answered by the fact that designated warrant information could be given in evidence in the course of a voir dire at the trial of the present applicant.

The applicant relies principally on Chu Kheng Lim v Minister for Immigration & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 35-37 (Brennan, Deane, Dawson JJ), 53 (Gaudron J) ("Lim"). He also relies on Australian Building Construction Employees' and Builders' Federation v The Commonwealth [1986] HCA 47; (1986) 161 CLR 88 at 96; R v Quinn, Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1 at 11; and Deputy Commissioner of Taxation for New South Wales v Brown [1958] HCA 2; (1958) 100 CLR 32 at 40.

In Lim the High Court, by a 4:3 majority, held s 54R of the Migration Act 1958 invalid. That section was part of a series of sections (Division 4B (ss 54J-54U) of Part 2 of the Act) which had been introduced to deal with "the problem of boat people". Such persons were called "designated persons" in the new provisions. The statutory definition of "designated person" included, as one element, the giving of a "designation" by the Department to a person. Section 54R provided:

"A court is not to order the release from custody of a designated person."

It will be clear that the provision was, in terms and on its face, a direction by the Parliament to the courts as to how they were to perform their function. In this respect, the provision was different from the prohibitions with which we are concerned.

The conclusion of the majority (Brennan, Deane, Dawson and Gaudron JJ) that the section was invalid arose from, and depended upon, their Honours' construction of s 54R. Their Honours and the minority (Mason CJ, Toohey and McHugh JJ) differed in this respect. The majority did, and the minority did not, construe s 54R as a direction to Chapter III courts not to give effect to substantive legal rights. More specifically, according to the majority, s 54R directed courts not to order the release from custody of a designated person, even though, upon a proper analysis of the relevant substantive common law and statutory provisions (of which s 54R itself was not one), the designated person was being unlawfully held in custody. The minority, on the other hand, thought that s 54R should be understood as a direction to courts not to order release from custody of designated persons who, in accordance with the substantive law, were being lawfully held in custody, and that, so construed, s 54R did not direct a court not to give effect to substantive legal rights.

Sub-section 63 (1) is a law of general application prohibiting the communication, making use, making of a record, or giving in evidence, of information obtained by intercepting a communication passing over a telecommunications system, whether the interception took place in contravention of sub-s 7 (1) or not. Sub-section 63 (2) is a law of general application prohibiting the communication, making of use, making of a record, or giving in evidence, of designated warrant information. Both prohibitions are subject to Part VII. Succeeding sections within that Part provide for exceptions to the prohibitions.

Unlike the provision considered in Lim, neither prohibition is itself, even potentially, inconsistent with an individual's substantive rights. The operation and effect of s 63 in the present case is to make certain evidence unavailable to the applicant, and so, in practice, to prevent him from proving a case of invalidity of a certain kind in administrative review proceedings. Where, as here, the applicant is being prosecuted, in order not to "fragment" the criminal proceeding it is only in exceptional or extraordinary circumstances that this Court would grant relief in respect of a warrant (cf Flanagan v Commissioner of Australian Federal Police, supra). The effect of s 63 is that it is impossible for a person in the applicant's position, in any proceeding other than an exempt proceeding, to establish what was contained in, or omitted from, the application and supporting affidavit, and, to that extent and in that respect, to establish that the "warrant" does not enliven the exception in para 7 (2) (b) to the prohibition in sub-s 7 (1).

In my opinion, sub-s 7 (1) and Part XA reveal an intention that the only rights which an individual is intended to have in respect of an interception are the rights provided for in the TI Act, and that the only remedies which he or she is to have are those provided for in Part XA. The "map" of substantive rights of the individual in respect of the interception of telephone communications is that laid down in the TI Act itself, and is not to be found elsewhere. It seems clear that there is no general actionable right of privacy in Australian law, with the result that the initial eavesdropping and the subsequent communication, making use, making of a record, or giving in evidence in a proceeding, of the information which was overheard, do not constitute tortious conduct: Bernstein v Skyviews Ltd [1978] 1 QB 479; Kaye v Robertson [1991] FSR 62 (CA); Markesinis (1990) 53 MLR 802 and (1992) 55 MLR 118; Prescott (1991) 54 MLR 451; Bedingfield (1992) 55 MLR 111; Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65 at 69; Walker, "Regulating the Media: Reputation, Truth and Privacy" (1994) 19 MULR 729. In this respect, the case is distinguishable from Lim in which the common law recognised a right in the individual not to be taken into custody and provided, no doubt as the most important remedy for infringement of that right, an order for immediate release.

Section 63 does not detract from the enforcement of the rights created by the TI Act, but is a provision of general application which may, incidentally, prevent the exercise of other rights. In my view, this does not indicate an interference with the exercise of judicial power by Chapter III courts. Abrogation of rights, including procedural rights, by Commonwealth legislation has often been upheld, notwithstanding its practical effect on the outcome of litigation: cf Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 (removal of privilege against self-incrimination); The King v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 and Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 (privative provisions); Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth [1986] HCA 47; (1986) 161 CLR 88 (cancellation of registration and consequential loss of standing to enforce rights); Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501 (retrospective criminalisation of conduct not criminal when engaged in). Reference may also be made to Nelungaloo Pty Ltd v The Commonwealth [1947] HCA 58; (1948) 75 CLR 495 and R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231.

Many Commonwealth statutory provisions deny the availability to courts and tribunals generally of particular evidence: Ombudsman Act 1976 , sub-s 35 (8); Administrative Appeals Tribunal Act 1975 , sub-s 34A (7), s 66; Prices Surveillance Act 1983 , sub-s 43 (2); National Health Act 1953 , s 98E, esp para 98E (2) (b); Merit Protection (Australian Government Employees) Act 1984 , sub-s 84 (5); Taxation Administration Act 1953 , sub-s 3C (3); Federal Court of Australia Act 1976 , s 53B; Disability Discrimination Act 1992 , sub-s 127 (2); Radiocommunications Act 1992 , sub-s 210 (6); Native Title Act 1993 , sub-s 72 (3), s 181; Family Law Act 1975 , s 19N.

As noted earlier, the provision which was held invalid in Lim was in form a direction to the courts. However, even if the provisions in the present case had been in form a direction that the courts were not to admit into evidence information obtained by interception or designated warrant information, this would, in my view, have made no difference in the result. Indeed, paras 63 (1) (b) and 63 (2) (d), although expressed to be directed to parties or witnesses rather than courts, prohibit the giving of information in evidence in any proceeding in a court.

Again, in my view the applicant's submission should not be accepted.

Question 4

"4 Are section 6EA, sub-section 63 (2) and paragraph 67 (b) of the principal Act and section 34 of the Telecommunications (Interception) Amendment Act 1995 otherwise invalid?"

No reason other than those advanced for the answering of Question 3 "Yes", has been suggested for concluding that the provisions are invalid. Therefore, I would answer question 4, "No".

Question 5

"5 Do sub-section 63 (1) and paragraph 67 (a) of the principal Act operate to:

(a) ....................................;

Paragraph 33 of Drew's affidavit sworn 26 August 1994, a copy of which is annexed to the Mills open affidavit, appears to contain information of the kind referred to in sub-s 63 (1). Neither party submits to the contrary. The factual assumption contained in the qualification which appears towards the end of question 5 (b) is therefore supported, and it is appropriate that the question be answered.

The question should be answered "no" because the prohibition should be construed purposively for the reasons which I gave earlier in relation to question 2 (b). Fairfax v Doe at 87E (Coleeson CJ) and Green v R (1996) 135 ALR 181 at 185- 186 (Franklyn J) offer direct support for that approach to the construction of the prohibition in sub-s 63 (1).

Question 6

"6 If the answer to any or all of the questions in 5. is 'yes', are sub-section 63 (1) and paragraph 67 (a) of the principal Act valid laws of the Commonwealth?"

I think that the correct answer is "yes" generally for the reasons which I gave earlier in relation to question 3. In Fairfax v Doe, the "judicial power" basis of attack was not relied on, but the arguments that the prohibition was ultra vires s 51 (v) of the Constitution and inconsistent with an implied constitutional freedom of political communication were put and were rejected by the New South Wales Court of Appeal (see Gleeson CJ at 89D-90E and Kirby P at 107-109). This Court should follow the decision of the New South Wales Court of Appeal as a decision of an intermediate appellate court on a provision of Commonwealth legislation unless this Court is convinced that that decision is "plainly wrong" (ASC v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492). I do not think that the decision of the New South Wales Court of Appeal on the point is plainly wrong.

Question 9

"9 Does sub-section 219F of the Customs Act 1901 operate to:

(a) prevent the first respondent from producing for inspection by the applicant the documents, or those parts thereof which comprise material of the kind specified in sub-section 219F (1), from the list of discovered documents given by the first respondent on 14 November 1995?"

I think that the correct answer is "Yes, as to those parts of the documents which contain information of the kind specified in sub-s 219F (1)." It is common ground that the first respondent is an officer of a Commonwealth law enforcement agency and that information which was obtained by the use of a listening device for the purpose of narcotics inquiries that were made by officials of the agency came to his knowledge or into his possession by reason of his being an official of the agency. Therefore, the conditions of the operation of the prohibition contained in sub-s 219F (1) are satisfied.

Question 10

"10 If the answer to any or all of the questions in 9. is 'yes', is sub-section 219F (1) of the Customs Act a valid law of the Commonwealth?"

Generally for the reasons which I gave earlier in answer to question 3, I would answer this question "Yes".

CONCLUSION

I would answer the questions the subject of the order for separate decision as follows:

1. No, but such an affidavit will necessarily contain designated warrant information.

2. (a) Yes, as to those parts which comprise material of the kind referred to in sub-section 63 (2).

(b) No.

(d) It is inappropriate to answer a question expressed in these terms.

3. Yes.

4. No.

5. (a) Yes, as to those parts which comprise material of the kind referred to in sub-section 63 (1).

(b) No.

6. Yes.

7. No, as to each of paras (a) and (b).

8. It is unnecessary to answer this question.

9. (a) Yes, as to those parts which comprise information of the kind referred to in sub-s 219F (1).

(b) No.

10. Yes.

11. No.

12. It is unnecessary to answer this question.

The applicant should be ordered to pay the costs of the respondents of the decision of the separate questions.

I certify that this and the preceding 86 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated: 31 January 1997

Heard: 6, 7 August 1996

Place: Brisbane

Decision: 31 January 1997 (Sydney)

Appearances: Mr M S Weinberg QC with Mr P Hanks of counsel instructed by Pryles & Defteros, solicitors, appeared for the applicant.

Mr J J Spigelman QC with Mr C R Staker of counsel instructed by the Australian Government Solicitor appeared for the first respondent.

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