CD & Anor v The Commonwealth of Australia

[2025] HCATrans 35

[2025] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A2 of 2025

B e t w e e n -

CD

First Plaintiff

TB

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 MAY 2025, AT 10.00 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends MR D.F. O’LEARY, SC and MS S. PALANIAPPAN for the plaintiffs.  (instructed by Agresta Moran Barristers & Solicitors)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear with MS M.R. SALINGER and MR M.P.A. MAYNARD for the defendant.  (instructed by Australian Government Solicitor)

MR C.S. BYDDER, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend MS A.K. MILLER on behalf of the Attorney‑General for the State of Western Australia and the Attorney‑General for the State of Victoria, intervening.  (instructed by State Solicitor’s Office (WA) and Victorian Government Solicitor)

MR S. ROBERTSON, SC:   May it please the Court, I appear with my learned friend MS L.A. COLEMAN on behalf of the Attorney‑General for the State of New South Wales, intervening.  (instructed by Crown Solicitor (NSW))

MR M.G. HINTON, KC:   If the Court pleases, I appear with my learned friends MS A.F. CAIRNEY and MR W.M. SCOBIE on behalf of the Director of Public Prosecutions (SA), seeking leave to intervene.  (instructed by Office of the Director of Public Prosecutions (SA))

GAGELER CJ:   And that is not opposed, as I understand it?

MR HINTON:   As I understand it, that is correct, your Honour.

GAGELER CJ:   Yes, you have that leave.

MR HINTON:   Thank you, your Honour.

GAGELER CJ:   Mr Walker.

MR WALKER:   May it please the Court.  The title of the statute which is under challenge in these proceedings refers to its intended purpose or hoped‑for function of confirming something.  What it is said to confirm is variously describable by reference to the arguments that you have read through party exchange, but at its core it involves a question of the character to be given, by reason of evidence, to the conduct of authorities by which communications never intended for the authorities were taken – I am trying to use neutral expressions, as your Honours appreciate – so as to be available to those who covertly were engaged in surveillance.

In our submission, it is clear that the means adopted by the Confirmation Act is to stipulate, as a matter of legislative conduct, a factual conclusion – what might, in a different context, be described as an intermediate fact to be found by reference to so‑called primary facts, all on the basis of evidence and appropriate reasoning.

GAGELER CJ:   It is put against you that it is just a matter of legal characterisation.

MR WALKER:   It is indeed, it is indeed..  In our submission, that is no more cogent than to suggest that the description of conduct as “reasonable” or, for that matter, “late”, would be described, by reason of it having considerable legal consequences in both those example, merely a matter of legal character.  It is not.  Because the law, and what the law is doing when there is a judgment or reasonableness, which is undoubtedly a conclusion based on primary facts, what the law is saying when there is a finding of lateness, which is also based upon primary facts, is making a finding of fact to which the law may, otherwise and by other provisions, attach a consequence or not.

Many things that are late have no legal consequences, and many things that are unreasonable have no legal consequences.  And it is, in our submission, a fundamental misunderstanding of the useful division between facts and their legal consequences, for the purposes of our legal system, for those arguing against us simply to say:  nothing to see here, all that is being done is what the Court said in Duncan is naturally within the purview of a legislature’s salutary capacity to remedy certain matters.  And you will have seen from our written submissions that, naturally, we do not doubt the salutary nature of that legislative competence.

There is no crude ex post facto notion underlying our argument.  Rather, we submit that when you look at the Confirmation Act and the Act that it is affecting, so far as the consequences for our clients are concerned, it does so by stipulating for a matter or state of affairs which is essentially and, indeed obviously, factual.  Could I remind you, as quickly as appropriate, of the critical provisions of the Confirmation Act.  It is an Act which is constrained in its application to what might be called cases or circumstances arising from or in relation to so called “relevant warrants”. 

You see that they are defined in section 4 by reference to the specific documents which, naturally enough, will have consequences for persons – particular persons – by reason, for example, of the stipulation of specific premises.  The same thing is true with what are called computers.  One sees the link with what might be called the principal statute in the matter in the definition of the phrase:

intercepting a communication passing over a telecommunications system –

because that is to bear:

the same meaning –

I interpolate, not to alter it, not to modify it for a particular case, but it is to have:

the same meaning as in –

what I am going to call the Interception Act:

the Telecommunications (Interception and Access) Act 1979 and intercepted while passing over a telecommunications system –

particularly what I might call the concept of “duration”, the phrase starting with “while”, that:

has a corresponding meaning.

Which, as shorthand, must surely mean one looks to the Interception Act to understand it.  Section 5, in its own heading, in our submission, is frank in its statement of what it intends to achieve.  It intends to achieve a stipulation in the negative about the occurrence of “interception” in relation to those warrants and, in our submission, as you will see from the Interception Act, that must be, and must be only, a stipulation as to a conclusion of fact to be drawn from primary facts, to which I am going to come.

One sees that there are consequences, then, which are also factual, because they refer to those matters which are caused – which is a factual question – or are consequences in the real world – which are factual questions – such as you see in paragraph 5(1)(b).

BEECH-JONES J:   Mr Walker, that phrase in (b):

a communication passing over a telecommunications system –

maps onto section 7(1).

MR WALKER:   Yes, it does.

BEECH-JONES J:   As does (a), is that right?

MR WALKER:   Yes.

BEECH-JONES J:   Yes, I understand.

MR WALKER:   Your Honour is referring to the principal Act ‑ ‑ ‑

BEECH-JONES J:   I am, yes.

MR WALKER:   Yes.  It is, in our submission, a striking feature of the theory behind the Confirmation Act that it does not engage in something that might be called an amendment or might be called – to use the language from Duncan – the attachment of a different or new legal consequence to an established state of affairs”.  It is mapping – as Justice Beech‑Jones says – onto the notions, relevantly, intensely and purely factual, to be found in the Interception Act and to say of them that they do not actually have the character – factual in nature – which, under the Interception Act, they would otherwise have had.

GLEESON J:   Does not the object of the Confirmation Act indicate that this is about the confirmation of the application of the Act to what are called “newer technologies”?

MR WALKER:   Your Honour will have noticed that there is actually no suggestion anywhere that this is an amendment of the Interception Act or, for that matter, even more remotely, the Surveillance Devices Act, so as to bring within their purview technologies – whether they are newer or not does not matter, different, perhaps, is all that might matter – than would otherwise be the case.

This is not a case at all where it was by reference to difference in technology that there was the consequence for which we contended, albeit unsuccessfully, in the courts below.  It had nothing to do with novelty of technology.  And, in our submission, that, of course, entirely vindicates the acceptance, as we would see it, of the Parliament or Parliaments of Mr Blunn’s important recommendation that legislation in this area, to the extent possible, needs to be technologically neutral.  In other words, there is no use in having a statute which is outdated the next day by a development in Silicon Valley.

GORDON J:   Do you accept that the Confirmation Act selects a factum on which it operates, and that factum is information obtained or purportedly obtained under the AN0M warrants?

MR WALKER:   No, not in the sense that your Honour is putting it to me.  May I spend a bit more time answering that, it is close to the heart of the matter.

GORDON J:   Right.

MR WALKER:   The Latin expression both reveals and sometimes conceals or diffuses the reality that the constitutional doctrine in which it plays an important part treats, of facts – factual states of affairs – which, existing, are available for Parliament to attach new, different, or sometimes opposite consequences after the event of their occurrence or coming into existence.

So, a factum is still something that has happened, hence invalid exercise of administrative power – AEU, for example, or even a contested outcome of a judicial proceeding can nonetheless, as to component parts of it, constitute a factum upon which a Parliament can later legislate by reference to it so as to bring about a new or different legal consequence from what would been the case but for that Commonwealth legislation, and the same thing applies at the level of States, and this is not a case which raises any difference between the competence of the States or the Commonwealth to do so.

In this case, perhaps the nub of the matter in our argument is that this is not taking a factum and attributing to it a different legal consequence from that which would have followed in the state of law before the legislation in question, such as in Duncan, but actually imposing artificially, fictitiously, a fact – call it a factum if you like – and demanding that, notwithstanding what the evidence would support, notwithstanding what the primary facts would compel, stipulating that a new factum – not an established state of affairs, or let alone an established factum – establishing a new one, by fiction and, more to the point, bypassing any role for a court in examining evidence, making primary findings of fact and drawing a factual inference as to the factual character of the state of affairs such as, for example:  was somebody reasonable, or somebody was late.

In our submission, that is the difference between this case and the orthodox and now, we suppose, unremarkable category of remedial legislation, the power to enact which cannot be in doubt, which is the capacity to take a factum – a state of affairs which is factual in nature, to which the law formally attached either no consequence or some different consequence – and saying of that, notwithstanding it is in the past, perhaps because it is in the past, it now has the following consequence, which might even be radically different from the expectations legitimately engendered by the state of affairs before that legislation was enacted, but this legislation does no such thing.

It does not say that communications passing, in a way to which I will come in a little bit more detail, from the Interception Act provisions to which Justice Beech‑Jones just referred.  It does not take them and say that those are now facts – I do not know whether I can use the expression “factor” – to which a different legal consequence follows in their singled‑out group, being those matters to which the relevant warrants relate.  In that class of case, those matters of fact which exist are now said not to be an interception, and information obtained in reliance on the warrants in question are not to be taken factually to be the result of an interception.

STEWARD J:   Mr Walker, can I ask you, is the concept in the Interception Act of when a communication is passing over a telecommunication system, in your view, a purely factual matter?

MR WALKER:   Yes.

STEWARD J:   Then, if that is so, why does section 5F talk about something being “taken”, to use the language of a deeming?

MR WALKER:   Because it embraces, correctly, a fiction.

STEWARD J:   Which is?

MR WALKER:   That notwithstanding what the facts show, the fact is to be taken oppositely.

STEWARD J:   But does that mean that the deeming in section 5F is a legal characterisation or consequence that the Act is imposing on facts?

MR WALKER:   I am sorry, no.  In 5F, it does not matter whether it is a fiction or not – 5F is a definition, and the “taken” to be provisioned there does not embrace deeming in the sense of fiction.

STEWARD J:   What is the work of “is taken”?

MR WALKER:   It is laying down that state of fact which will place communication – or passage, I should say – between two temporal and sometimes territorial locations.

STEWARD J:   And that you say is a purely factual inquiry?

MR WALKER:   Yes, it is driven entirely by a matter of fact concerning the action of some humans and the operation of some technology.  Could I, at that point – jumping ahead to that matter, there has to be meaning given to the notion of starting to pass over a telecommunication system to adapt the expression in 5F of the Interception Act, and that is because, obviously enough in human affairs, the taking of decisions which result in a communication undoubtedly covered by the Interception Act might have a number of different beginnings.

STEWARD J:   Is it designed to address that we are looking at something that is not discernible by the human eye?

MR WALKER:   It may be useful in that regard, but it is still going to have to yield to factual findings.  My emphasis in relation to 5F is that it is not a deeming in the sense of embracing the imposition of a fiction – a known fiction – it is a stipulation from among facts as to those which are available for the factual conclusion in any particular case:  when did this communication start to pass?  Why I say that is because the state of affairs, which is taken to be the start of the passing of a communication over a telecommunication system, is plainly described in factual terms.  I quote: 

when it is sent or transmitted –

If your Honours ask me to distinguish between the meaning of “sent” and “transmitted”, I am going to say I cannot – Anglo‑Saxon and Latin, I think:

by the person sending the communication –

They are all, intensely, fact matters.  There is no question of law involved in whether a person is the person sending the communication – though there may be borderline factual cases requiring decision, it does not make it not factual – and there is no legal question involved in sending or transmitting. 

We imagine we know the meaning of those words and we look at the evidence and ask:  when is it that this was sent by the person sending the communication?  That may require understanding the nature of the technology, because, as your Honours know from the next case listed here, there is a dispute about the significance – one way or the other – of evidence concerning the, if you like, instantaneous and irrevocable nature of the technical description of the communication upon a person – if I can use the physical description – pressing the send button.

So, those are all factual matters and, to anticipate, this is the difference between this case in the need to distinguish between matters of fact and the legal consequences that may or may not flow from them – this is the difference between the nature of the argument here and the observation, for example, in this Court in Vetter v Lake Macquarie where that very familiar mantra of the application of the law – say, legislation – to fully found facts is itself a question of law.  A matter that arises has a long prehistory with respect, for example, to reviews of juries and the like, as well as administrative law.

This is a case where, instead of fully‑found facts which are taken without alteration as facts, something which is truly a fiction is to be imposed.  Continuing a response to Justice Steward, 5F of the Interception Act, for example, is not amended by a carve‑out provision for the cases affected by these warrants.  These matters are still just to be understood by the general provisions of the Interception Act, according to the Confirmation Act.

Then, that means that if you are looking for when it started, you ask yourself:  when was it sent or transmitted by the person sending the communication?  That is, obviously enough, a matter which, on the hypothesis that we advance for constitutional case, if found in our favour – pursuant, say, to the appeal that follows – that would produce the conduct of the authorities as being an interception, we say, by dint of findings of fact.

What the Confirmation Act does – we can put to one side the idea that it is adjusting the Interception Act to some technology not within the purview of the Interception Act, no one suggests that; that is not true – it is confirming – one might be forgiving for thinking, and I will not dwell on this point – the outcome of the litigation to date concerning the preliminary questions for the prosecutions. Obviously enough, section 73 of the Constitution stands in the way of preventing this Court, for example, from deciding either to confirm or affirm, or not, that outcome.

So, you put all that to one side, and one asks then, well, what is this statute doing?  In our submission, starting with section 5, it is bluntly making a factual conclusion as a matter of legislative fiat, rather than as a matter of judicial decision in a proceeding, which has come to the point of special leave being granted, to appeal the unfavourable conclusions on this matter against us in the courts below.

BEECH-JONES J:   Mr Walker, in 5(1) where it says:

is taken for all purposes –

of the Confirmation Act – it is the opening words in 5(1) – one of those purposes, I assume, would include the purposes of the Telecommunications Interception Act.

MR WALKER:   Yes.

BEECH-JONES J:   What are the other possible purposes?

MR WALKER:   Only with a slightly facetious touch could I suggest one of the purposes is to nip in the bud our forensic ambitions in our criminal proceedings.  Putting that to one side is, one hopes, unworthy of the Commonwealth.  It is difficult to understand that phrase other than as something that has been taken off the shelf, and we are not suggesting it is defective on that account.

The notion of interception over a telecommunication system may have all sorts of social consequences for people who do it to their friends, but that will not have legal consequences in most cases.  It is going to be something which is the creature of a statute.  I confess I have not traced through whether there are other statutes of the Commonwealth where one can simply say this deals with interception of communication while passing over to a telecommunication system, because in truth the Interception Act, I think is ‑ ‑ ‑

BEECH-JONES J:   The only relevant one.

MR WALKER:   ‑ ‑ ‑ either the only, or by far the most important.  So, I cannot add beyond the Interception Act, and the consequences of it, to the phrase or purposes.  One knows that the consequences of it include its own provisions concerning, in particular, nondiscretionary inadmissibility, and it would not be cynical to say, well, that is obviously intended to be a consequence of this statute if it is effective, but it does so – and here there is a fictitious deeming – by taking, for all purposes, that the information obtained under those warrants was:

not to have been, and always not to have been –

I am not quite sure what that will add in this case:

intercepted while passing over a telecommunications system –

At the moment, oddly, the prosecution has won that point.  It was not intercepted while passing over a telecommunications system, but there is, before this Court, a live issue as to whether that was correct.  If it was not correct, then that state of affairs as a matter of fact would not be true.  That is, the facts that produced the hoped‑for outcome on an appeal in this Court – that the communications were intercepted while passing over a telecommunication system – being our appellate argument. 

If that be true, this is a statute which says that is not true, and what is said to be not true obviously has to do with, and only with, matters of fact.  Was there a communication?  Yes.  Was it sent by a person?  Yes.  Was there an intended recipient?  Yes.  Was it intercepted, in the sense stipulated by the statute?  Well, it was obtained while passing over.  You look at those factual questions, which 5F of the Interception Act make clear – we will provide you that duration.  When does it start?  So, when was the start button pushed?  How was it obtained?  Was it obtained before or after that?  It was obtained after that.  Was it obtained before being assessable to the intended recipient?

All of these are matters which have to do with expert evidence; they are technical and factual.  Those affirmative answers that we would hope for on an appeal in this Court are purportedly reversed factually, and the fictitious nature can be seen from the fact that this is a statute enacted after the grant of special leave, when it was to be understood that the nature of our appeal, to be described from the application for special leave, had what I have just put at its heart.

So, this is a provision which says, even though we have won this point, by way of confirming that position – not judicially, but by legislation – the fact, which the successful applicants for special leave are going to challenge, that fact is to be taken, as it were, established by statute.

There could not be a neater way of demonstrating that it is a legislative attempt to take out of the hands of the judiciary a finding of fact to which the judiciary must then apply whatever law calls to be applied at the time of the adjudication by the court.  But what it does not do is to amend the Interception Act in any respect at all, including altering the visiting of legal consequences upon an established and accepted state of factual affairs – a factum – such as in the classic case of Duncan.

STEWARD J:   Mr Walker, leaving aside subsection 5(1), do you concede that subsections (2) and (3) do involve attaching new legal consequences to past acts?  And things are taken to be valid and lawful, and never to have been in contravention, et cetera?

MR WALKER:   That is plainly the attachment or nonattachment of legal consequences, but one can see the relation between subsection (2) and what goes before, it is a provision for the avoidance of doubt.  It is describing the hoped‑for legal outcome of a state of affairs which has been changed not by altering legal consequences in subsection (1), but by imposing a fiction in place of a fact.  When I say it is a “fiction”, obviously, that is on the hypothesis that we were to succeed in an appeal.  If we did not succeed in an appeal, it would not go anywhere.

BEECH-JONES J:   Mr Walker, does that answer to Justice Steward’s question mean you cannot sever (2) from (1)?

MR WALKER:   That is right, yes.  As I say, the heading of section 5 really announces its ambition:  it is to change the state of affairs from a judicial finding – not obtained by interception – to a legislative finding of not obtained by interception.  As I say, ironically, they have the judicial finding – not obtained by interception – but being a judicial finding, it is subject to correction in the appellate hierarchy.  That is sought to be avoided, we think – although I do not want to go into matters of strict appeals, et cetera, at least at the moment.

Can I remind you, in particular, as Justice Steward draws to attention, that as well as subsection (2), there is subsection (3).  Subsection (3) quite broad in its ambition.  It now looks, plainly, to the forensic effect which is intended to be preserved from the forensic successes of the prosecution in the arguments below, from which the appeal is brought.

It says, in place of the finding for which we seek – namely, nondiscretionary inadmissibility – it seeks this outcome:  “evidence” – and you can and should take that as meaning the information from communications obtained by interception – that if, but for subsection (1) – now, subsection (1), as I say, imposes a fiction, and were we to succeed on appeal, reverses a fact – and says of that, that it would not have been in contravention.

In our submission, you see in particular the look over the shoulder at section 138 of the Evidence Act in paragraph (b), that which has at least hitherto been regarded as quintessentially for judicial decision, that assessment in relation to admissibility, namely, impropriety or:

consequence of an impropriety –

is now reversed:

for all purposes not to have been, and always not to have been, obtained:

. . .

(d)improperly or in consequence of an impropriety.

One goes on to ring the changes in that in paragraphs (c) and (d).  In our submission, what that demonstrates is that this is a statute that all turns upon the imposition of a matter of fact which is not a fact that matters at all if our appeal does not win.

GAGELER CJ:   Mr Walker, can I just understand this distinction that you draw between fact and fiction?  If we look, just for the purposes of analysis, at section 5F of the Telecommunications Act, we see a ‑ ‑ ‑

MR WALKER:   The Interception Act, yes.

GAGELER CJ:   Yes, the Interception Act – we see a pretty standard deeming provision.

MR WALKER:   It is a defining provision, really.

GAGELER CJ:   Well, it is creating a fiction, or ‑ ‑ ‑

MR WALKER:   Not really.

GAGELER CJ:   I see.

MR WALKER:   Not really.  It is:

a communication –

so, your Honour’s ordinary understanding of the word “communication”.

GAGELER CJ:   Yes.

MR WALKER:   It is:

taken to start passing . . . when it is sent or transmitted –

That sounds like a little ponderous but absolutely commonsense and ordinary English usage.

GAGELER CJ:   I see.

MR WALKER:   In other words, it would be unfair to say, of those words:  well, that is the imposition of a fiction; Parliament can deem a dog a goat.  Well, it can, but no, it has not done anything like that here.  As opposed to what are the same words in section 5 of the Confirmation Act, which are a perfect fiction.

GAGELER CJ:   Yes, all right.  Put that to one side.  But if you accept that Parliament can deem a dog to be a goat, is your point that Parliament cannot deem the dog to be a goat after a court has already found it to be a dog?

MR WALKER:   No.

GAGELER CJ:   So, how do you distinguish the general deeming provision?

MR WALKER:   AEU stands against – if I can use this image – the debris of an unsuccessful litigious outcome, in that it can be gone over and bits can be selected, and they are mounted on a plinth, and they now become the showpiece of a new scheme which would be of opposite outcome.  I hope it is detectable in our written submissions, we do not challenge any of that.  That is not what is happening here.

Rather, the unaltered general provisions of the Interception Act, in the case of these warrants, it is said no longer to be the province of a court to find the facts and to apply those provisions to those facts according to the evidence in the case, but rather to impose something – not by something that has been established otherwise, because, by reason of the appeal, it may not be established – but rather, by a state of affairs which derives its reality, its legal reality, only from imposition by legislation.

That is what I am saying is the difference between this and the general approach in AEU, the subset of that more specifically in Duncan, in each of which you have an actual state of affairs, there is no attempt to alter it factually at all, no one’s conduct is to be treated differently either as to what it was or when it happened.  But here, in particular in relation to both what it is and when it happened, there is to be – on the hypothesis that we succeeded in our appeal – a legislated different factual situation.  That is what I mean by the “fiction” about which your Honour asked me.

GORDON J:   May I ask one question about that – and it may be that I am just asking the same question I put earlier in a different form, and if it is, no doubt you will tell me.

MR WALKER:   Not at all, your Honour.

GORDON J:   The opening words of 5(1) are:

Information, or a record obtained under, or purportedly under, a relevant warrant –

MR WALKER:   Yes.

GORDON J:   That is a factual question:  where is the bundle of information obtained under the warrant?

MR WALKER:   Yes.

GORDON J:   And that information – you might put it that that is the factum, that is the legal thing upon which the section operates:

is taken for all purposes –

to have a different legal consequence.

MR WALKER:   That is jumping – your Honour, that is the intended outcome, that they can avoid nondiscretionary inadmissibility, which they are not altering ‑ ‑ ‑ 

GORDON J:   That is the endplay, you would say that is the result of the ‑ ‑ ‑

MR WALKER:   It is the whole exercise, your Honour.

GORDON J:   Sure, but we are, at the moment here, trying to work out whether or not 5(1) is in the relevant available mechanisms or outside it.

MR WALKER:   Quite, quite.

GORDON J:   So, if that is right, that is, it is taken for all purposes – that group of documents, fact, information, whatever it is – to have a different legal consequence, an attachment of a different legal concept, how is that any different from Nicholas?

MR WALKER:   Because your Honour’s description of this as attaching a different legal consequence elides the thing which is distinctive in this confirmation legislation, which is that it seeks to do so by pretending the facts are different from what, on the hypothesis, this Court would hold them to be in the appeal.

GORDON J:   So, this is where, I think, the reference to “facts” are to be different.  Picking up the question put to you, I think, by the Chief Justice, is the facts are the facts, whether or not that is in contravention of an Act is not a factual question, it is a legal question.

MR WALKER:   They have not said anywhere that for these warrants, an interception within the Interception Act is not unlawful.

BEECH-JONES J:   Mr Walker, if that section 5(1) had been included in the Act as originally passed as 5FA, and operated prospectively about information obtained under a warrant ‑ ‑ ‑

MR WALKER:   So, a carve-out for certain species of warrants?

BEECH-JONES J:   Yes.

MR WALKER:   If we know there is an – we know that if you have a warrant of a particular kind, then interception will not be illegal.

BEECH-JONES J:   It is taken – well, it is said to have – but otherwise, had the words “it is taken for” the purposes of this Act, or “for all purposes”, would there be any problem with the section then?

MR WALKER:   What your Honour is putting to me is using the approach of 5(1), and 5(1) takes the approach of imposing a legislated state of factual affairs ‑ ‑ ‑ 

BEECH‑JONES J:   It is really ‑ ‑ ‑ 

MR WALKER:   ‑ ‑ ‑ not a legal one – legislated fact:

not . . . intercepted while passing over a telecommunications system –

notwithstanding the evidence shows it was.

BEECH‑JONES J:   Maybe that is another way of asking what Justice Steward’s question is:  what is the difference between 5(1) and 5F?

MR WALKER:   I am repeating myself, I am sorry.  In summary, 5F is a definition which simply puts paid to argument about what, in ordinary English, might be a question concerning when a communication starts to pass.  I do not mean to mock the possibilities, but one of them would be, at its extremity, when the person who sends it decides to do so.  Now, you do not have to be worried about such matters, because the statute says it:

is taken to start passing . . . when it is sent or transmitted –

and bearing in mind what “sent” and “transmitted” both mean, and what “passing” means, and what “starting to pass” means, it might be thought another example of overanxious Commonwealth drafting, because, in order to send something, you must start it passing; in order for it to be transmitted, it must start to pass.

BEECH‑JONES J:   Would your argument get to, as a position, that Commonwealth cannot deem something in an Act – cannot use a deeming provision – where, to use the Chief Justice’s phrase, a dog is being deemed to be a goat?

MR WALKER:   No, I bring up that hackneyed example precisely because you can.  And if, effectively, there were already provisions in the Interception Act carving out things from the definition of “interception”, then so be it.  That is not the case.  They are taking interception – as they say in section 4, it “has the same meaning” as in the Interception Act.

They are simply coming in, we submit, with excessive institutional crudity, to say the exercise for a court will remain the same – apply the understanding of “interception” from the Interception Act to the facts shown by the evidence to answer the question, (a), what anything intercepted, and (b), was it intercepted during the passing, that is, the temporal duration?

STEWARD J:   Mr Walker, can I ask you another question.  Do you accept that whether facts as found fall within 5F is a question of law?

MR WALKER:   Yes, of course.  That is the Vetter point; that is, the facts as found.

STEWARD J:   Yes.

MR WALKER:   That is, in a nutshell, why we say you cannot answer our case by saying:  it is a question of law as to whether facts – to use the alliterative phrase, “facts fully found” – whether they amount to a state of affairs normally required by statute ‑ ‑ ‑

STEWARD J:   Your point is that this is Parliament seeking to alter one of those facts in order to generate a conclusion?

MR WALKER:   They are finding the facts.  Exactly.

STEWARD J:   Yes, I understand.

MR WALKER:   That is the difference.  And there are limits – which are institutional, obviously, hence the dubbing of these arguments as Chapter III arguments – there are limits to legislative power to take over what is for a court.  That is not to say there are not some things that can be done by either, according to the choice of Parliament.  That is not one of these cases.

In our submission, once one realises that truisms such as recited in Vetter have nothing to do with the matter here, you are left with a question as to whether what is done in the Confirmation Act seeks, for more abundant caution, because of the possibility of the appeal for which special leave was granted succeeding, seeks to take away from a court – I mean, it could not possibly be this Court, in a strict appeal, but leave that aside for the moment – seeks to take away from the judicial arm the finding of facts for the purposes of applying to those facts the law.

GAGELER CJ:   Mr Walker, can I put another form of analysis to you.

MR WALKER:   Yes, your Honour.

GAGELER CJ: In the Telecommunications Interception Act, you have an earlier Act of general application.

MR WALKER:   Yes.

GAGELER CJ:   In the Confirmation Act, you have a later, specific Act.

MR WALKER:   You do.

GAGELER CJ:   To the extent that there is inconsistency, of course, the later specific Act prevails.  Does not the later specific Act say:  where you find information purportedly obtained under a relevant warrant, then these are the legal consequences, without needing to step through the factual inquiry that would be required under the general Act?

MR WALKER:   My short answer is no.  Can I try and explain it.  What it does is to take a factual state of affairs enacted in the earlier, general Act for the purposes of the important supervision of the Executive and consequences in the event of infringement that the earlier general Act does, including nondiscretionary inadmissibility.  That is the first point.

It does so by a later, more specific Act, which is more specific by reference to the warrants.  So, it is a carve‑out, which is to say, one way or the other – perhaps not exactly – it will coincide with the individuals; which, one way or another – not necessarily exactly – will coincide with accused persons.

The result of so doing is not by saying that a warrant under the Interception Act is taken to have never been required and not to be required in the case of those relevant warrants.  It does not say that – which may have been another way of proceeding, we do not have to speculate as to the problems it may have faced, but that is not what happened.

Instead, what the Confirmation Act did was to attach to the fact which is at the heart of – as is obviously known between everyone involved – at the heart of our appeal against the reasoning in the Courts below:  was there an interception of a communication in the stipulated duration?  A question that requires examination of evidence, the making of primary findings of fact and the drawing from them of the intermediate or conclusory fact as to whether or not there was an interception – within its defined meaning – of a communication – with its defined meaning – in the duration – within its defined meaning – all of which are factual questions.

GLEESON J:   So, your case depends upon the fact – it is crucial to your case that there was a grant of special leave in relation to an appeal which involved this question of fact.

MR WALKER:   No, our special case proceeding may or may not have had a different dimension in terms of purely hypothetical, or whatever, if we were not criminally accused.

GLEESON J:   I am trying to understand why you say this particular question – accepting what you say, accepting that it is an intermediate fact, but accepting that it is predicated on a whole lot of other facts, and it is one that you say is going to be decided by reference to expert evidence – why this is so peculiarly a matter for the exercise of judicial power.  But you are saying it is not because of the fact that it is in issue in an appeal.

MR WALKER:   It may be – and I apologise that the thrust of your Honour’s question might be escaping me somewhat – but, obviously, as your Honour appreciates, obviously, we say of the statute that it has its defects the day it was born, regardless of manoeuvres between parties in the criminal litigation – that the first thing.

GLEESON J:   It sets out a very complex, fact‑intensive scheme which is going to have to be applied with the assistance of expert guidance.

MR WALKER:   Yes – and it has, adversely to us, it has been applied.  It has been done as a factual exercise.  As you correctly say, there is complexity of what I call a technological kind, not necessarily of a lay reasoning kind, you do not have to be a technical person in order to make these decisions, but it is a very good case for the reception of expert evidence, as was received and considered.

What resulted from all of that were factual findings adverse to us in a critical respect concerning what I will call the temporal matter.  If – and this may be what your Honour is asking me about – the best way of demonstrating that this is a legislative usurping of the fact‑finding role, which is one of the paradigm ways of attempting to describe the exercise of judicial power, that is, the finding of the facts to which the law is applied, as opposed to the legislative imposition of all the relevant facts.

EDELMAN J:   Is one way of drawing that distinction a distinction between the purpose and the effect of the provision, so that one might say that the purpose of a provision may be to adjudicate upon or decide a question of fact – in which case you would say it is invalid – but it might not be invalid if it had a different purpose, but merely the effect of the provision was to determine a question of fact.

MR WALKER:   Your Honour, that goes to the heart of an old – that is a problem that has been talked about in this Court for a long time, and in Nicholas some older cases were discussed, and the notion of imposing by legislation all the factual elements of a theft is one of the extreme hypothetical examples which is said to pose a contrast with that which, in the realm of practice and procedure in evidence, the heartland for legislative retrospective alteration, would result, for example, in the reversal of the expected onus.

But the former example – namely, the imposition by legislative fiat of all the factual components, including intention permanently to deprive, et cetera, of a theft offence – was regarded by Sir Isaac as just plainly unavailable to the legislative arm, and Sir Gerard did not seem to think there was any difficulty with that as an approach.  Now, there may be a spectrum involved, but it is a spectrum with some fairly large points on it, and we have accepted, as you have seen, that you can work radical effect to criminal litigation with respect, obviously, to onus.

EDELMAN J:   So, if the phrase “passing over a telecommunications system” appeared in numerous statues, for example, and in some of those statutes it appeared as, say, an empowering provision for surveillance devices, whereas in other statutes, such as the Interception Act, it appeared in a context that you would describe as factual; would that not mean that the purpose of the provision would be very difficult to characterise as one that is designed to interfere or usurp factual findings?

MR WALKER:   Your Honour, the difficulty of giving a monosyllabic answer to that is you really would need to see what the statute in question does in its possible disparate effect as a general definition provision – an interpretive provision – in relation to a suite of different regimes.  But the fact that such a provision would not be offensive, constitutionally, in one application does not mean that it is thereby over the sandbar for all of the others.

Because if the effect – and I do stress the effect – unavoidably is to impose upon a court – in the spectacular examples, not this case, where you actually impose all factual elements of an offence on somebody, then the effect is that the court is, if you like, reverted to the sentence phase only, because conviction follows inevitably by legislative edict.  In our submission, that would remain, still, a fixed point of principle in order to detect those legislative projects which are within power and those which cross the line – I mean, there is a line.

The device adopted here is simply to say something which the general Act calls for to be determined on the evidence and factually is now to be taken out of that, and, as I say, the only exigency that produces this legislative exercise is the possibility of us winning our appeal, it is to be taken out of the judicature’s hands, and it is by legislation, where a court might have said or be inclined to say on the facts that this was factually an interception of information obtained thereby during the passage of the communication over the system.

That, in our submission, is nothing to do with visiting legal consequences.  It is reaching back further into the dealings – the human dealings – and saying, first of all, I am going to describe what actually happened, factually – that is, Parliament is saying that – and, having described it in a way which happens to meet the unaltered terms of the general Act, lo and behold, you produce a different consequence, as you might expect, because you have stipulated legislatively for a state of affairs different from that which a court, ex hypothesi, would have found factually on the evidence, which has been unaltered, on the factual state of affairs, which has been unaltered, that is, by any finding of fact.

So, the history does not change, but its factual characterisation does.  So, if you did something at five past 10, stipulated to be done at 10 o’clock, this is a statute that says it is to be taken to have occurred before 10 o’clock and, in our submission, that is simply a dicing with factual matters which are within the exclusive power of the judiciary to determine in carrying out the rule of law exercise of administering justice by applying the law to facts found by fair and tested process.

Now, that does not mean you cannot have presumptions, it does not mean you cannot alter onus, and it does not mean you cannot do a plethora of things to the admissibility of evidence – by reference to reliability, for example, one only has to think historically of the introduction of business records legislation.  None of that has the slightest element of presence in the Confirmation Act.

This is not easing the reception of evidence; this is not changing the onus, throwing any onus on us, for example; it is simply saying that thing which, by the unaltered provision that we confirm in the Confirmation Act section 4 is to be found in the Interception Act, that factual thing is now to be taken to be in this fashion, and you must add to that, regardless – and that must be the outcome of “taken for all purposes to be” – regardless of what would be the outcome of a factual adjudication by a court.

It is in that sense that I have used the word “fiction”.  That is, not caring whether this is the outcome of the judicial process called for by the Interception Act to the evidence in a particular case, not caring about that, the Confirmation Act says it is to be taken not to have been an interception.  That is the difference which is thrown up by the difficulty, we say, in possibility of finding anything approach a near analogue of this legislative approach in the various statutes of very different kinds that have produced this Court’s jurisprudence about what can be done, tolerably or not, by the legislature in an area which, for most people, in most cases, is and is only a province of the courts, namely:  what are the facts to which the law will be applied so as to produce legal consequences or not of a particular kind?

Your Honours, as I say, one thing to recall in relation to section 5(3) is that we do not have there, for example, the amendment of the law of evidence, which does attach legal consequences to judicial assessments which are entirely factual – though, of course, value‑laden – involve, for example – in section 138, there are other provisions in the near vicinity of 138 which engender similar considerations. 

But under section 138, which is not altered by the Confirmation Act, there is called for a factual assessment, qualitative in its nature – no doubt value‑laden, but still factual – as to whether something was improper.  To that finding of impropriety, there may or may not be attached legal consequences, and those are matters which, plainly, are within the purview of Parliament to alter.

It may, for example, be that Parliament could, for the statutory rules of evidence, devise a way of categorising species of impropriety – such as knowing disregard, or reckless disregard, or negligent disregard or innocent disregard – which might have diametrically different outcomes with respect to the admissibility of evidence, but at the moment, those are matters which are committed, and committed only to the discretion of trial judges supervised by appellate courts. 

In our submission, what section 5(3) is concerned to – nip in the bud any argument about 138 – they are doing it by attacking the factual characterisation of the conduct in question, not by altering the law so as to be more, for example, forgiving of executive zeal, which one might imagine would have political controversy but may not have as much constitutional controversy.  It is for those reasons, in our submission, that taken as a whole, the Confirmation Act reveals on its face its character as an attempt to preclude the findings based on evidence, and expressed in factual, albeit ultimately conclusory terms concerning the conduct of the investigators in this case.

Because findings concerning conduct of investigators is, if I may so, of its nature factual – and I do not mean mixed fact of law, I just mean factual – you then apply whatever law is relevant to their conduct to those findings to determine whether there was an infringement of rules or not, and then there may be consequences further than to be described as to what happens if there is an infringement.

It so happens that you can be forgiven for thinking all this arises because the Interception Act is one of those rare birds, indeed, that leaves no room for discretion.  If I may say so, that is not something which is, in any appropriate way, found in the Confirmation Act as the object of amendment, retrospective or otherwise.

GORDON J:   May I ask three questions.  In the replacement explanatory memorandum which accompanies the introduction of the Confirmation Act, it says that its application is limited to those:

warrants issued to the Australian Federal Police (AFP) . . . in connection with Operation Ironside.

That is not in dispute?  The second thing is that paragraphs 13 to 16 address the section 5 analysis.  At the end of 16, in relation to subsection (3) – and I think from what you have just said, I think you agree with this, that it does not limit – that is it:

does not limit subsections (1) or (2), nor limit any other discretion to exclude evidence a court may have other that in section 5.

Would you like me to put that again, Mr Walker?

MR WALKER:   No, no, I think that is right, your Honour, yes.

GORDON J:   Yes.

MR WALKER:   And that is the intended purpose of the opening words of subsection (3).  I do not think I can argue to the contrary of that.

GORDON J:   I think, as you have just put, subsection (2) is defined to extend, I think, to acts by people done as a result of dealing with information or a record obtained – or point of view obtained – under a relevant warrant, and then third is dealing with derivative evidence.

MR WALKER:   Yes, for practical purposes that is right because of the provisions to which everyone has drawn attention, which are not controversial, concerning what I will call the prohibition on dealing with unlawfully intercepted information.  “Yes” is the answer.

GORDON J:   Thank you.

MR WALKER:   But the point we wish to emphasise is, all that is done by legislation which turns upon making a factual stipulation by the legislature, there was no interception.  In our submission, that goes beyond simply saying there was an interception.  There is the factum to which a new consequence has now been applied, it was not unlawful.

It does so by saying there was no interception, and that has crossed completely into the factual area which the judicial arm must be able to make contrary to the Executive – the size of the Executive – because that is how, as a matter of rule of law, one supervises schemes for conduct such as one finds in the Interception Act, which, as your Honours will recall, was born amid some controversy concerning political, social disquiet about the extent to which such interference with what I am going to call privacy interests was justified in the detection and prevention and punishment of crime.

The balancing acts – and the balance happened to be struck in this regime by stipulating that there would be no admissibility of material that was not obtained under one of the exceptions.  There are many exceptions, but the one that is most obvious in this case is a warrant.  It could have been done by a warrant.  You will notice that the absence of a warrant is simply not part of the Confirmation Act.  So, we are not dealing with taking a factum, certain conduct, and saying it has different legal consequences now, you just say:  I am going to invent a factum.

As I keep having to stress, that last statement is on the hypothesis we were to succeed in the appeal, because at the moment, they have that factum established against us in litigation, but it is vulnerable to being overturned in this Court by applying the Interception Act to the facts as found – the primary facts – and reaching the conclusion, as a matter of fact, as to which side of the line the conduct in question fell.

Your Honours have seen our proposition 7, as I have already mentioned, that we would not dissociate ourselves from any quixotic attempt to deprive Parliament of the power to legislate with respect to practice procedure, evidentiary matters and even to such numinous questions as the allocation of the onus of proof in criminal proceedings.

So, we are not to be taken as suggesting that there is not a deal of work that can be done by the legislative arm, which will have radical effect upon proceedings compared to what would have been the case in the absence of such legislation, nor are we able to say – and we do not say – that some simplistic ex post facto limit or prohibition affects the extent of that legislative competence. 

We fully embrace the outcome of cases such as Nicholas, which – as we have noted in proposition 7, in a manner that we do not need to labour before your Honours and address – has been accepted by this Court for relatively straightforward propositions, which are not controversial in this argument – say, in Graham.  In proposition ‑ ‑ ‑

GLEESON J:   Here, we are not dealing with ascertainment of facts so much as appellate review of facts, are we?

MR WALKER:   As it happens, yes, but can I – and that does, I think, call for making these observations about the nature of an appeal to this Court.  Yes, it is a strict appeal, but the task is to produce the outcome that the Court of Appeal should have produced; the appeal to the Court of Appeal was an appeal by way of rehearing.  So, questions of fact can and should be decided according to what the Court of Appeal regarded as the proper outcome.

This Court supervises on appeal the proceedings in the Court of Appeal, and thus, this Court can say the Court of Appeal should have found on those primary facts that this was, as a matter of fact, an interception of the information was, as a matter of fact obtained – as a matter of fact – in the duration starting with the sending or transmitting.  Because, as you know, the evidence makes it clear that the pressing of a send button set in train instantaneous and irrevocable steps which could be broken down, according to your chosen level of generality, into a few or many steps, which could be broken down, some of which – a large and important part of which – involved electromagnetic energy.

That does not have to be entirely that.  For example, radio communication will remove a communication from the act only if the communication is made solely by radio communication.  So, we know that factually looking over the horizon to an appeal, this Court has within its power and – depending upon conclusions reached by this Court – its duty to pronounce the outcome differently from the Court of Appeal if it determines that what the Court of Appeal should have done was to reach that conclusion.

That is an actual concrete relation between the parties to the criminal proceedings by reason of the grant of special leave.  There is a pending appeal, there is the possibility of us succeeding in persuading your Honours that the evidence and, more to the point, the findings of primary fact are such that the factual conclusion of interception in the relevant duration and the obtaining of information thereby had occurred, which would have produced a legal consequence of nondiscretionary inadmissibility which has a particularly concrete effect.

In that sense, in our submission, the fact that we are at that state of affairs means that the constitutionality of legislation which would bypass or ignore all of that and claim the capacity to stipulate legislatively for the outcome that the Court of Appeal, on this hypothesis, had wrongly come to judicially is one which, in our submission, has plainly crossed the line.  Is that a convenient time, your Honours?

GAGELER CJ:   Yes, but communicate where you are up to in your outline, Mr Walker.

MR WALKER:   I have just finished the first part of 8.  So, I am going to finish 8.  I will not take very long with 8, and I certainly will not take very long with 9 and 10.

GAGELER CJ:   Thank you.  We will take the morning adjournment.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

MR WALKER:   Your Honours, I have, I think several times, in answering some of your Honours’ questions, foreshadowed the point we make in proposition 8 concerning what might be called grounds for distinguishing those other cases.  It is no mere distinguishing.

We say there is the important substantive distinction that I do not wish to labour any longer concerning taking an established state of affairs – to be called a factum – and attaching to it, subsequently, different legal consequences on the one hand and, on the other hand, imposing by legislative fiat a new state of affairs different from that which, on the hypothesis on which this argument is based, the judicial arm would come to.

Proposition 9 does not need, we think, in terms of the lack of controversy at the highest level of the proposition – does not need further elaboration beyond what we have in our written submissions.  Proposition 10 obviously speaks for itself.  The qualitative nature of the prospect laid out by this law being held constitutional is one which does not simply open the door but actually musters through it, in this case, legislation of a kind which, in the rather different way the matter arose in the Privy Council, the oft‑cited, rarely applied decision in Liyange, leaves open.

Now, I am cautious about suggesting to your Honours there is some freestanding quality to the concerns that motivated their Lordships in that

case, and particularly the extremely brief explanation, if it be explanation, of the outcome of that case.  But it would not be unfair to say they were, after all, faced with the legislative distortion of the fact of torture in order to render voluntary and conclusive confessions extracted.

We are nowhere near that, and I do not wish to suggest anything with that kind of gravity, but it is to be remembered that it would be impossible from those reasons or from a consideration of principle in this country concerning the Chapter III zone into which legislation cannot intrude so as to force facts on a court, any more than to force interpretation of law onto a court – it is to be remembered that there comes a point where – in terms of the intrusion into judicial zone on what might be, as we have written in our submissions, a spectrum or a continuum – the evident singling out of litigation, and therefore the persons involved in that litigation, without taking on the politically far more confronting task of retrospectively altering a whole general regime – that, in our submission, as that extraordinary case demonstrates, can and should be appointed to an intrusion into area that ought not to be trespassed into by the legislature.

May it please your Honours.

GAGELER CJ:   Thank you, Mr Walker.  Mr Solicitor.

MR DONAGHUE:   May it please the Court.  The plaintiffs have framed their argument in this proceeding very narrowly, in an attempt to navigate around two lines of authority that, in our submissions, stand directly in the path of their challenge to the validity of the Confirmation Act.

The first of those lines of authority is the line exemplified by AEU and Duncan, that make clear that Chapter III contains no prohibition on Parliament selecting an historical fact and applying a new legal status or consequence to that fact, even in relation to pending proceedings.  The second line of authority, exemplified by Nicholas in this Court, and also by Lazarus in the New South Wales Court of Appeal, makes clear that Parliament may validly alter the laws that govern the admissibility of evidence in criminal proceedings, including by removing a basis upon which evidence might otherwise have been excluded, including in respect of a closed class of case.

I propose, your Honours, to structure our submissions as follows:  to start and mainly to focus upon the construction of the Confirmation Act and the proposition that is at the heart of our friend’s case, that the Act involves what is called a legislative declaration of fact; second, and much more briefly, to address Duncan; and third and finally, to address Nicholas.  I will be quite brief on those latter two issues.

The central premise that the Confirmation Act constitutes a legislative declaration of fact, removing the essential fact‑finding function of the court, is one that we submit just cannot be made good.  Our submission as to how the Act works reflects questions that your Honour the Chief Justice and your Honour Justice Gordon put to Mr Walker in argument earlier this morning.

We submit that section 5(1) is concerned with the legal character of information and records obtained or purportedly obtained pursuant to certain identified warrants defined in section 4 of the Confirmation Act as “relevant warrants” and which the special case makes clear are the AN0M warrants – the 11 warrants listed are the warrants pursuant to which the AN0M was collected.  The factual question upon which the Confirmation Act turns, as your Honour Justice Gordon put to Mr Walker, is:  what information or records fall within the bucket of information and records that were either obtained or purportedly obtained under those identified warrants?

Once you answer that factual question, section 5(1) confirms or, if necessary, alters the legal position at the moment – “confirms” because, at first instance and in Court of Appeal, the answer given by section 5(1) is the same as the answers given by the court – but at most, it creates the legal consequence that the obtaining of that information or those records did not fall within a particular statutory description that is found in the Interception Act – if I can call it that – and because it did not fall within that statutory description, it did not have the legal consequences that would follow, including under the Interception Act, if it had fallen within that statutory description.

But at no point does the Confirmation Act declare the facts to be different than they were or interfere with the function of the court in finding the facts.  What it does, in our submission, is it changes the law.  And, having changed the law, it changes what facts are relevant with respect to this category of information.

Far from reversing the conclusion that the court would reach under all of the interlocking definitions in the Interception Act that Mr Walker has mentioned and that I will come back to shortly, what it does is – as the Chief Justice put to Mr Walker – is it just says you do not need to worry about those definitions in the Act, this is a new legal regime that, for this category of information, says:  if you fall within the category, the legal consequence is the same as it would be if you had worked through the definitions on the past facts.

So, one does not now need to concern oneself with whether there was a communication passing over a telecommunication network, et cetera, with the various exceptions and deemings that one finds in the Act.  Parliament has just said:  if you obtained or purportedly obtained under one of these identified warrants, this is the legal consequence.

Before I come to the Act, can I make the observation – and it is not, I think, a mere debating point – that, contrary to the answer that your Honour Justice Steward was given when you asked, in the Interception Act, is the question whether something was “intercepted while passing over a telecommunications system” a question of law or a question of fact, and Mr Walker said, I think, a question of fact.

STEWARD J:   No, he said it was a question of law.

MR DONAGHUE:   I am sorry?

STEWARD J:   I think he said it was a question of law.

MR DONAGHUE:   If he said that, I misheard.

STEWARD J:   I may have misheard as well.  Yes.

MR DONAGHUE:   Certainly, our submission, your Honour, is that it is a question of law.  The “intercepted while passing over a telecommunications system” is a statutory concept in the Interception Act that either is satisfied or not, as a legal matter, by application of the facts as found.

STEWARD J:   You say it is the fifth proposition posited in Liyanage, which gets picked up in ‑ ‑ ‑ 

MR DONAGHUE:   In numerous of the – yes, indeed.  I was going to link it – there are many authorities, obviously, in this area – to Vetter and the first sentence at paragraph 24, where – we gave it to your Honours, but you do not need to go there, but the first sentence is: 

Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law.

That was the premise upon which the parties operated in bringing the matter to the Court of Appeal in the matter that has now come to this Court in the related proceeding.  Again, I do not need to take your Honours to them – you have the relevant appeal provision in the bundle at volume 2, tab 8, it is the Criminal Procedure Act 1921 (SA) – but that Act provides, in section 153 and 154, for the court to:

reserve . . . a relevant question –

this is 153, which is defined to mean “a question of law”:

for consideration . . . by the Court of Appeal –

and 154 then provides for the court to state a case that sets out the reserved question and “any findings of fact necessary for the proper determination” of that question.  So, it contemplates that you have all of the facts necessary stated in the case stated, and then you have a question of law to be answered as to how those facts as found apply to the statutory concept.

So, there was no debate between any of the relevant parties before the Confirmation Act was passed that the character of particular information as having been “intercepted while passing over a telecommunications system” or not was a legal question.  That was the legal question reserved for the Court of Appeal, it is the legal question raised in the appeal that comes to your Court, and the Confirmation Act answers that legal question, that exact same legal question.

In our submission, a legislative answer to that legal question cannot be the answer to a question of law in one proceeding in this Court and a factual matter in the other, but that seems to be what is inherent in the way that our friends frame the issue as part of their attack on the validity of the Act.  Within the Confirmation Act, and your Honours have been taken through the relevant provisions, you have seen already that there is a definition in Section 4 of:

intercepting a communication passing over a telecommunication system –

which is said to have:

the same meaning as in the Telecommunications (Interception and Access) Act –

And the same is true for the cognate phrase:

intercepted while passing over a telecommunication system –

So, there is a recognition, in our submission, that the Confirmation Act is using a statutory concept from another Act that has a legal meaning within that other Act.  What is that legal meaning?  Can I ask your Honours to turn to the Interception Act, which is in volume 2, tab 7, if you are going there, and to start with section 6 of that Act.  So, section 6 provides that:

For the purpose of this Act (other than Schedule 1) but subject to this section, interception of a communication passing over a telecommunications system –

so, that is the phrase picked up by the Confirmation Act:

consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system –

Now, that definition uses the word “communication”, which has its own definition in section 3; it uses the phrase “telecommunications system”, which has its own definition in – sorry, in section 5, I think, actually, not in section 3 – so, both “communication” and “telecommunications system” are defined in section 5; “telecommunications system” uses the defined term “telecommunications network”; “telecommunications network” is quite a technical definition.

Now, if your Honours got to the appeal, and no doubt you will be taken through all of this in more detail, but my point is simply that in order to identify whether section 6(1) of the Interception Act is engaged, you have to work through a significant number of complex definitions, often one that feeds into another in a chain, at the end of “telecommunications network”, you have an exclusion:

This definition does not apply to Schedule 1.

Which is about international production, telecommunication production orders, so that all of that ‑ ‑ ‑

GORDON J:   Is not your short point just that one does not take these terms as having their ordinary meaning because they have their own peculiar defined meaning, and one has to go to the statute to work out what we are dealing with?

MR DONAGHUE:   Precisely, your Honour, and at the end of all of that – having gone to the statute and all of these provisions – what you reach is a legal conclusion, so that when Parliament says you do not need to go through that path if you have information that, as a matter of fact, was obtained or purportedly obtained under a warrant, the same legal conclusion follows.  That is not in any sense a legislative declaration of a fact, that is, attaching a legal conclusion to a fact that, if it be in contest, would need to be proved before a court.

BEECH-JONES J:   Mr Solicitor, without seeking to take you out of that Act, I asked Mr Walker about the phrase “for all purposes” in section 5.  Is that really any purpose other than for the purposes of the Act you are now taking us to?

MR DONAGHUE:   Clearly that is its main purpose, your Honour.  We think that the answer to the question is that it includes, also – and this may not be comprehensive, but this is the main thing – it also includes the Surveillance Devices Acts both of the Commonwealth and the States, because they butt up against each other, the surveillance regime and the telecommunication regime, so, sometimes you need to know whether something is covered by TIA in order to know whether or not it is under the Surveillance Devices Acts.

So, it does, we think, at least that. I will not take your Honours to it, but one example of such a provision is section 18(7) in the Surveillance Devices Act (Cth), which you can see pointing back to the Communication Act. But the short point is the point that Justice Gordon just put to me, and you have, in addition to the interlocking definitions that I have just mentioned, section 5F – which your Honours have seen – but also 5G and 5H, which also bear upon that topic.

So, you need to go through that whole chain to work out what the character of the particular information is, whether it was intercepted while passing over a telecommunication system or not.  Under the Interception Act, the answer to that question is then important for – it has a number of legal consequences, and it was evidently to avoid those legal consequences that the Confirmation Act says, we use the interception phrase with the same meaning as it has in the Interception Act so that when Parliament says particular information is taken not to have been intercepted, that means it is taken not to have the consequences that would have followed under the Telecommunication Interception Act, had the Confirmation Act not been passed.

The main consequences are, for our purposes now, to be found in sections 63 and 77 of the Interception Act, which your Honours should have.  Section 63 is on page 183 of the print, headed, “No dealing in intercepted information or interception warrant information”, so, 63(1) provides that:

Subject to the balance of –

Part 2‑6, or 299, which is irrelevant:

a person shall not . . .

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

(b)give evidence in a proceeding;

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

As to the first of those limbs, “lawfully intercepted information” is defined – your Honours probably do not need to go there, but it is defined in section 6E of the Act as, relevantly:

information obtained . . . by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system.

And section 7(1) provides that:

A person shall not:

(a)intercept . . .

. . .

a communication passing over a telecommunications system.

So, broadly speaking, without descending into the detail of it, the effect of section 63 is that unless you can bring yourself within one of the exemptions that follows in Part 2‑6, you cannot communicate, or use, or give evidence of communication that was intercepted while passing over a communication system.  The exemptions include, relevantly, section 74, which is you can:

give lawfully interceptive information . . . in an exempt proceeding.

Which is defined in section 5B in a way that includes, relevantly, proceedings for the prosecution of a proscribed offence.  So, it is a detailed, interlocking regime imposing legal consequences that bite upon whether or not information has the character of information that was intercepted while passing over a communications system.  The other key provision is section 77 of the Interception Act, which, on a nondiscretionary basis makes inadmissible information that was intercepted while passing over a telecommunications system.  So:

whether or not in contravention of subsection 7(1) –

that material is inadmissible unless one of the exemptions applies.  So, in light of those consequences of the legal status, your Honours can see that what Parliament has done is said – without worrying about whether or not, in effect, the Court of Appeal was right in how it applied the interlocking definitions in the Communications Act – if the information was obtained under one of the specified AN0M warrants, it does not have the legal character of information obtained while passing over a communications system, and because it does not have that legal character, it does not have the legal consequences that would otherwise have followed under, in particular, sections 63 and 77.

It does not have those consequences because Parliament, not deeming the facts to be different, not because it has deemed the facts to be different, because it has selected a factum.  The factum being, as Justice Gordon put to Mr Walker, that the information was obtained or purportedly obtained under one of the relevant warrants, and identified the legal consequences that followed so that, in our submission, this Act is completely indistinguishable from the regimes – relevantly indistinguishable from the regime upheld in Duncan and, insofar as it has consequences for the admissibility of evidence, indistinguishable from that upheld in Nicholas.

It is true, as our friends said in their reply – which I think Mr Walker also said this morning – that the effect of the Confirmation Act has changed the factual landscape – that is the phrase they use in paragraph 8 of their reply – in the sense that it has made the facts that will be determinative of the legal consequence different than they were before.  The Court will need to find different facts with respect to information obtained under the AN0M warrants than it would otherwise have needed to find in order to determine the legal character of the facts.  But that is nothing unusual, legislation that changes the law changes the relevant facts all the time without in any way cutting across the judicial function.

GAGELER CJ:   Is it a premise of your argument that Parliament cannot retrospectively deem a dog to be a goat?  I mean, you seem to be trying to say it is not doing what Mr Walker said it was doing – I understand all of that – but why do you have to say that?

MR DONAGHUE:   Why do I have to say that?  I do not have to say that.  So, at the moment, all I am doing is addressing your Honours on the construction of what the Act is doing, and if the Act is doing what I said, the reason I do say that is because your Honours said in Duncan that if that is what the legislation does, it is valid, and that is where this submission goes.  So, I could make a larger submission, but I do not need to.  I certainly do not deny, as Mr Walker conceded, that Parliament could provide that, for all legal purposes, a dog must be treated as a goat.  But I just do not get there.

Your Honours, a significant strand of our friend’s written case, emphasised much less orally, although picked up in the very concluding remarks that Mr Walker made about Liyanage’s Case, seemed to attribute some significance to two connected facts:  one, that there was a proceeding on foot, including in this Court; and the other, that the class of person affected by this Act is closed.  Both of those propositions are true, although the closed class is, here, quite large.  The special case says, I think, 390 persons have already been arrested in connection with Operation Ironside, and there may still be more to come, and there is a significant number of prosecutions on foot, as I think the South Australian DPP points out in their intervening submissions.

It is not clear to us how central that limb of the case is to the attack that is being made, and therefore I will not take your Honours to the case in response to it, but can I just note that in the BLF Case (1986) 161 CLR 88 in this Court, which is in volume 3, tab 9 of the authorities, the Court was concerned with the Chapter III challenge on similar grounds – usurpation of judicial function, interference with the judicial process – of a law that was passed after a proceeding in this Court was commenced about one union.

So, the case that was pending in this Court was about the deregistration or otherwise of the BLF, and the legislation specified that the BLF – a single organisation – was deregistered, thereby rendering redundant the proceeding that was pending in this Court, I think due to be heard about a month after the legislation was passed.  The Court unanimously dismissed the Chapter III challenge to that legislation, the main reasoning being on pages 95 to 96, and one of the things that was said, perhaps, picking up or responding to a question your Honour Justice Edelman asked Mr Walker, was their Honours said, right at the bottom of page 96, that:

The Cancellation of Registration Act does not deal with any aspect of the judicial process.  It simply deregisters the Federation, thereby making redundant the legal proceedings which it commenced in this Court.

That was said to be valid:

It matters not that the motive or purpose of the Minister, the Government and the Parliament in enacting the statute was to circumvent the proceedings and forestall any decision which might have been given in those proceedings.

That is from the bottom of 96 to the top of page 97.  We do not understand ever to have been challenged – BLF has been cited in this Court on numerous occasions since, including in H A Bachrach v Queensland – another proceeding, incidentally, that concerned proceedings that were on foot in relation to a particular, single dispute.  So, if it is an important part of our friend’s case, it is answered, in our submissions, by those authorities.  It is not put by our friends that this is ad hominem legislation, quite correctly, in our submission, and so we are not in that territory.

Can I take your Honours just to the two cases I mentioned in opening, to Duncan and Nicholas.  Duncan (2015) 256 CLR 83 is in volume 3, tab 11. The legislation here in issue, your Honours will see shortly, uses language very similar to the language that Parliament chose to adopt in the Confirmation Act. So, if your Honours could start in the first paragraph, it is on page 90, paragraph 1, the joint reasons of Chief Justice French and Justices Kiefel, Bell and Keane. Your Honours will note immediately that there is a reference ‑ ‑ ‑

BEECH-JONES J:   Sorry, what paragraph was that?

MR DONAGHUE:   Paragraph 1, your Honour.  So:

In proceedings pending in the Court of Appeal of the Supreme Court of New South Wales, the applicant seeks a declaration –

with respect to certain findings made by ICAC, sought a declaration that they were in excess of jurisdiction.  ICAC had made a finding – not the court – ICAC had made a finding in a report that the applicant had engaged in “corrupt conduct”, as that statutory phrase was used.  So, your Honours will see, near the end of paragraph 2:

The respondent –

ICAC:

proceeded to conclude that this conduct was “corrupt conduct” within the meaning of s 8(2) of  . . . (the ICAC ACT).

So, the identified conduct found by ICAC met the statutory definition.  Then proceedings were commenced by the applicant to challenge that conclusion.  They lost at first instance, you see in paragraph 3; and in paragraph 4 they applied for leave to appeal to the Court of Appeal.  While that application – sorry, I have skipped over, critically, the intervention of Cunneen, the decision in this Court that showed that, in fact, ICAC had made a jurisdictional error, it had reached a conclusion as to corrupt conduct that was wrong on the meaning of “corrupt conduct” as it then stood in the Act.

So, this Court gave judgment in Cunneen.  The appeal to the Court of Appeal was still pending but presumably had good prospects, having regard to Cunneen, and the New South Wales Parliament then enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015, which added Part 13 of Schedule 4 into the Act, and that Act was then challenged.  So, the Act was evidently directed, at least in part, to pending litigation.  The pending litigation, unlike this case, was litigation that, on the old law, was bound to succeed because of the Court’s holding in Cunneen.

Now, our learned friends in their reply at paragraph 10 say they do not challenge Duncan but they seek to distinguish it.  The suggested basis for distinction was that the challenged provision was held to be valid because it effectively amended:

the definition of “corrupt conduct” –

and:

thereby changed the meaning of ‘corrupt conduct’ as a matter of substantive law –

I emphasise that because we say that is also what the Confirmation Act does, in effect, and it is instructive to consider the provisions of the Validation Act in Duncan that were said to have that effect of changing the meaning of the law.

You see them set out, relevantly, in paragraph 8 of the joint reasons – the relevant sections being sections 34 and 35.  Section 34 gave a definition of “relevant conduct”:

conduct that would be corrupt . . . if the reference in section 8(2) –

had included the matter that the Court held in Cunneen it did not include.  So, what it was doing was bringing within the statutory concept – there, the statutory concept of “corrupt conduct” – something that was not previously within that statutory definition.

Now, here, the Confirmation Act is doing the reverse.  It is taking something that might previously have been in the definition and deeming it to be outside of it, but it is relevantly the same kind of legal change to the operation of a definition on the facts.  What you then, see in paragraph 35, is very familiar language:

Anything done or purporting to have been done . . . before 15 April 2015 –

which was the date of judgment in Cunneen:

that would have been validly done if corrupt conduct for the purposes of this Act included relevant conduct is taken to have been, and always to have been, validly done.

And then you see consequential validation provisions in (2), for example, very similar to subsection (2) of the Confirmation Act.  That was challenged in this Court on the grounds of a Chapter III Kable challenge.  The challenge was dismissed unanimously by the Court.  In their joint reasons at paragraph 11, you see the Court saying:

As a matter of the ordinary use of language, cll 34 and 35 deem to be valid acts done by the respondent before 15 April 2015 to the extent that they would have been valid if corrupt conduct as defined in s 8(2) –

had included:

conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions.

In this way, cll 34 and 35 operate to amend s 8(2) of the ICAC Act in its application to:

those acts:

Parliament thereby changed the meaning of “corrupt conduct”, as a matter of substantive law, from the meaning given to that expression in Cunneen –

reading the end of the paragraph:

it is well settled that a statute which effects an alteration of the provisions of an earlier statute amends that earlier statute even though it may not expressly describe itself as “an amending statute”.

Your Honour Justice Gordon might recall that your Honour and Justice Nettle largely agreed with the joint reasons but did not agree with the amendment characterisation that said it is a new legal regime that achieves the same result.  We say, whether you categorise it as an amendment or as a new legal regime that applies to that information, you get the same answer as your Honours did in the case.

In our submission, that is exactly what the Confirmation Act also does.  It, as a matter of substantive law, takes the factum that information was obtained, or purportedly obtained, under a relevant warrant and it gives that a different legal character and, therefore, attracts different legal consequences.  In paragraph 14:

Clause 35 operates so that the legal position so declared is the same as if the respondent had been authorised by the ICAC Act to investigate and report on . . . “relevant conduct” . . . and cl 35 also attaches to the respondent’s findings, “as acts in the law, consequences which it declares them to have always had”.

Again, we say, the same is true of section 5(1):

it is –

as their Honours note at the end of the paragraph 14:

well settled that it is open to the legislature to select the fact that these activities occurred as the ground for attaching such legal consequences as it may choose.

The fact that occurred here, in our submission, is the fact that all of the AN0M evidence was actually obtained under, or purportedly under, the relevant warrants.  There is, as the special case records, millions and millions of records obtained in that way.  That is a fact; that happened.

BEECH-JONES J:   Just while you are at that point, the opening words of subsection 6(1) – I am sorry to take you, but ‑ ‑ ‑

MR DONAGHUE:   No, not at all, your Honour.

BEECH-JONES J:   Are those words designed to feed into 5(1) – the opening words – because they take the words:

Information . . . obtained in reliance . . . on a relevant warrant –

and deem it to be under the warrant?  Is that what their purpose is to achieve?

MR DONAGHUE:   In my submission, no, your Honour.  They are not feeding into 5(1).  They are operating on the same set of warrants but to produce a different legal conclusion.  So, 5(1) produces a conclusion that dovetails with the definition of:

intercepted while passing over a telecommunications –

network and deals with that.  Section 6(1) ensures that if, for some reason, the information that was obtained was not actually obtained under one of those warrants, including potentially because, for example, one of the warrants was held to be invalid, but it could be for any reason that it might – the information has the status of having been obtained under the warrant and that then has flow‑on consequences.

So, as your Honour well knows, one basis upon which one might seek a 138 Bunning v Cross exclusion is because of some deficiency with the search warrant by reference to which the information was obtained.  Section 6(1) rules out a challenge of that kind.

BEECH-JONES J:   Well, it was just that the section 6(1) deeming seems to take:

Information . . . obtained in reliance, or purported reliance, on a relevant warrant –

and deems it to be under the same warrant.

MR DONAGHUE:   Yes.

BEECH‑JONES J:   It does not seem to be doing too much work, in the sense of, if you obtain information in reliance on a warrant, you would normally say that was under the warrant.

MR DONAGHUE:   You would.  I think the work is more in the words “or purported reliance” on the warrant.

BEECH‑JONES J:   I see.

MR DONAGHUE:   Because if it is obtained in purported reliance on the warrant, then the legal effect of 6(1) is that it was actually obtained under the warrant.  Because your Honours have – in the appeal that is before you, you just have an appeal that focuses on challenges to a nonevidence on the interception ground, but there are, as the special case reveals, other challenges out there in the large number of AN0M cases that are on foot around the country seeking to exclude the AN0M evidence in other ways.  In my submission, section 6 is directed to those.

GORDON J:   That issue is not raised either on the special case or the appeal.

MR DONAGHUE:   It is not other than except – only in a sense that section 6 is challenged. 

GORDON J:   In the special case?

MR DONAGHUE:   Yes, in the proceeding that your Honours are now hearing, as opposed to in the appeal.  It is not raised at all in the appeal, but it is raised.

BEECH-JONES J:   It is a challenge that is picked up, we do not get a lot of concrete – and I do not mean a criticism in any way – concrete exposition from either side about what work it is trying to do.

MR DONAGHUE:   You do not, that is true.  You have in the special case – which is in the special case book, page 29, paragraphs 24 and 25 – a reference to the fact that – and, really this, I think, probably more goes to the plaintiffs standing to challenge section 6 – it picks up that they have argued that AN0M messages relevant to their prosecution should be that the warrants referred to were invalid – that some of the warrants that, pursuant to which their information was obtained, were invalid – and so they have run arguments like that below which have been heard but which are yet to be determined, as your Honours see in 24.2 and 25.2.

So, your Honours know that there are challenges on foot to the validity of some of the warrants.  You can see from section 6 that it is intended to ensure that whether or not the warrants are valid, the information was taken to be obtained under the warrants, and you can see that the plaintiffs have an interest in that question.

BEECH-JONES J:   I am sorry, yes, I distracted you.  You are at Duncan ‑ ‑ ‑

MR DONAGHUE:   I think, your Honour, I had largely finished with – sorry, I finished, I think, with the joint reasons in Duncan – well, almost.  So, I had emphasised the end of 14, you can select a factum:

the fact that these activities occurred as the ground for attaching such legal consequences –

And I was submitting – and your Honour Justice Gageler makes this clear in a passage I will go to in a moment – you can select whatever factum you want.  Parliament can identify a factum and attach legal consequences to it. 

Here, it does not need to select the facts that would have been relevant under the old Act to make them the chosen factum for the new Act, and here it has selected the entirely rational factum that the information was actually obtained as a matter of fact under, or purportedly under, the relevant warrants.  So, the last part of Duncan I emphasise in the joint reasons is 15, in the middle of the paragraph:

was acknowledged that if Pt 13, properly construed, does no more than attribute the consequences of legal validity to things done by the respondent, then his challenge must fail.  This concession was rightly made.

And that is what we submit the confirmation is doing, attaching the consequence of legal validity, relevantly.  That is what 5(2) and 6(2) expressly do, but it is the substantive effect of 5(1).  Your Honour Justice Gageler’s reasons are to the same effect.  Your Honour said, at paragraph 37, the challenge:

teeters on a narrow proposition of statutory construction.

Which may equally be said here.  At 39, your Honour emphasised that one must construe for validity if a valid construction is reasonably open, which of course is also true here.  At 42, your Honour said:

There is no novelty in the proposition that “in general, a legislature can select whatever factum it wishes as the ‘trigger’ of a particular legislative consequence”.

And your Honour then concluded at the end of that paragraph that that was what had occurred.  Your Honours Justices Nettle and Gordon, in paragraph 45, agreed with the joint reasons, save for the qualification in paragraph 46, which is the qualification that I just mentioned.

So, we rely on Duncan, which is part of a longer line of cases.  I have skipped over the discussion of the authorities, but your Honours can see, if you would find it helpful in the plurality reasons, a discussion at 19 of Nelungaloo, at 20 of Humby, at 22 through to about 25 of the AEU Case.  So, Duncan is just a good illustration near the end of a line of a legal approach that we say is well settled in this Court, and that supports the validity of the Confirmation Act.

The only other point that I seek to make, really, by reference to Nicholas, is that, in so far as the effect of the Confirmation Act – in particular in sections 5(1) and in 5(3) and 6(3), which are both directly concerned with admissibility of evidence – the legal and substantive operation of those provisions is, at most, to make admissible in evidence what would otherwise have been inadmissible, assuming my friends win the appeal.

What those provisions do is remove – the most they could do is remove a basis upon which our friends might have sought to have the AN0M evidence that is sought to be led against them excluded, particularly on the ground that it was improperly obtained.  If 5(1) is valid and effective, then its consequence should be that the information was not unlawfully obtained, but one can imagine an argument being fashioned that says that, well, the retrospective Confirmation Act has saved the legality of the gathering of this information.  We nevertheless want to contend that it was improperly obtained because it was not lawful at the time that it was done, for example.

Section 5(3) and 6(3) bite upon an argument of that kind and prevent evidence from being excluded on that footing, but of course, they do not touch any other feature of the criminal trial, and my learned friend for the South Australian DPP makes this point forcefully in their written submissions and I think in their outline, that every other feature of the criminal trial is unaffected; the prosecution must still establish that the defendants used the AN0M system, and that they actually did send the messages that they are alleged to have sent; that there is no effect on the discretion to exclude evidence on other grounds, such as that it is unfairly prejudicial, or its prejudicial effect outweighs its probative value; there is no direction as to the finding of any element of the offense.  This is all only about the evidence that is available to be used to prove the elements.  In our submission, Nicholas establishes that a provision of that kind is not contrary to Chapter III.

Can I take your Honours very briefly to Nicholas (1998) 193 CLR 173, which is volume 3, tab 15. Your Honours might recall that Mr Nicholas had been charged with offences in relation to heroin importation, but he had already obtained a permanent stay of that prosecution in reliance upon this Court’s judgment in Ridgeway because the heroin in question had been unlawfully imported by law enforcement officers.

Parliament’s response to Ridgeway was to enact a new regime that was partly prospective, in providing for controlled operations that would render lawful the kind of activity that had occurred, but partly retrospective.  It was the retrospective provision that was in play in Ridgeway, because what had happened was that after he obtained his stay and after the retrospective provision was enacted, the stay was lifted.  So, he became exposed to prosecution to which he would not previously have been exposed, by reason of the stay. 

In paragraph 5 in Chief Justice Brennan’s reasons, you can see the relevant provision set out; it is section 15X.  This was Division 3 of Part 1AB, which was the part that applied to proceedings that were already on foot but started before commencement.  So, as the Chief Justice said, three lines down: 

That Division covers prosecutions which were pending and which would otherwise have been affected by the judgment in Ridgeway –

So, clearly analogous to what is happening in this case; the proceeding is on foot but affected by the new legislative provision.  Section 15X provided, relevantly – reading only the relevant words:

In determining . . . whether evidence that narcotic goods were imported in Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods . . . is to be disregarded –

if certain conditions are met.  So, our submission is that – sorry, before I say that, one can see the few points in the reasons that this provision likely only applied to about five or six people, a closed class.  Justice Brennan says that at paragraph 27, Justice Hayne says at paragraph 247.

So, you had a much smaller class than is affected by the Confirmation Act, and those people lost the benefit of this Court’s decision in Ridgeway as a basis to secure a permanent stay.  The form that the legislation took, we submit, was much more vulnerable to the kind of argument Mr Walker has advanced this morning than the Confirmation Act, because it was a direction to disregard what the Act called a fact, but notwithstanding that form, the provision was upheld five‑two in this Court against the Chapter III challenge to which it was subjected.

I will not take your Honours through all of the reasoning, but I will note just a few of the key passages in Chief Justice Brennan’s reasons at paragraph 23, on the top of page 189, three lines down, his Honour says:

The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription.  A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order –

Then there is a discussion of the Williamson Case that Mr Walker mentioned at paragraph 24.  At paragraph 26, Chief Justice Brennan said:

If s 15X had simply declared that evidence of an illegal importation should be admitted, denying any discretion in the trial judge to exclude the evidence, the provision would simply have enlarged the evidentiary material available to a jury to assist it to find the facts truly.  It would have been a mere procedural law assisting in the court’s finding of material facts.  No exception could be taken to such a law consistently with the authorities –

at the end of that paragraph:

The procedure for determining the admission of evidence of illegal importation is affected, but the judicial function of fact finding is unchanged and the judicial power to be exercised in determining guilt remains unaffected.

All of that, we submit, is equally true here.

BEECH-JONES J:   If the legislation there had said:  the material that was imported by the persons named in the Schedule is deemed to be a narcotic good, you would say that was okay, would you not?

MR DONAGHUE:   I agree with Mr Walker insofar as he says there is a spectrum in this area.  That law would be quite a long way along the spectrum towards where you might have a difficulty.  That law, I think, would be declaring ‑ ‑ ‑

BEECH-JONES J:   It would be close to an attainder, or something like that. 

MR DONAGHUE:   It would be declaring an element of the offence to have been satisfied, but it would not be declaring guilt of the offence.  That would be a much harder case.  There are, I think ‑ ‑ ‑ 

GORDON J:   It would be, for example, if it was the only element.

MR DONAGHUE:   I am sorry, your Honour?

GORDON J:   It would be declaring guilt if it was the only element.

MR DONAGHUE:   If it was the only element, it would indeed.  So, one of the cases, which I probably will not take your Honours to, but upon which we rely, including in writing, is the Lazarus decision in the New South Wales Court of Appeal.  That case involved two sisters as defendants.

One of the sisters had been convicted of an offence, the first element of which was that she had been examined in an ICAC hearing, and that hearing would have been invalid at the time it occurred, but the validating legislation meant that it was a valid hearing.  So, the element could not have been proved pre‑the Validation Act; it could be proved afterwards.  The Court of Appeal upheld that provision.

So, that is along the spectrum that your Honour Justice Beech‑Jones is putting to me, but certainly, if it was the only element, then it would be decisive of the only issue in the case, and that would more likely, I think, be at the invalid end of the spectrum.

EDELMAN J:   It does tend to suggest that one has to read the comments in the BLF Case a bit more narrowly than they might literally appear.

MR DONAGHUE:   In the BLF Case, which, of course, was not a criminal case, and that might be an important distinction here ‑ ‑ ‑

EDELMAN J:   And it did not involve any – or was found not to involve any aspect of the judicial process.

MR DONAGHUE:   But it did completely answer the case that was pending in this Court, because that case was about whether the BLF should be deregistered or not, and the Act said:  you are deregistered.

So, I am not seeking to engage in drawing absolute lines in this case – I accept that there are judgments that will need to be made along the spectrum.  My point really is that the Nicholas law was held to be valid, and we respectfully contend that there is basis for finding that the Confirmation Act is any further along the invalidity spectrum than the Nicholas law.  If anything, it is more clearly valid, as adopting the Duncan‑type formulation.

As Justice Gummow put it – and I will confine myself, I think, to drawing your Honours’ attention to Justice Gummow’s main observations as well – his Honour thought that the argument that there was a – his Honour discusses the Williamson Case at 155, in terms you can see there.  At 156, his Honour makes the point that section 15 does not:

deem to exist, or to have been proved to the satisfaction of the tribunal of fact, any ultimate fact –

which his Honour identifies there as:

an element of the offences with which the accused is charged.

So, that is the spectrum, again, and your Honour Justice Beech‑Jones’ question.  I note for completeness that our friends in writing suggest that whether there was an interception is not the ultimate fact.  We respectfully submit that that is not so.

The elements of the offences with which the plaintiffs are charged do not include that there has been an interception.  Interception goes only to whether or not inadmissibility rules are engaged, rather than to proof of the elements of the offence.  And at 162, his Honour Justice Gummow said, again in terms that are easily applied to the present context, the provision:

operates to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion.  The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted.  However, the section does not deem any ultimate fact to exist, or to have been proved.  It leaves untouched the elements of the crimes for which the accused is to be tried.

We respectfully say that the same is true here.  His Honour said at 163, in the first sentence:

It is not significant that s 15X will have an operation in respect of a numerically limited class of persons presented –

It was, as his Honour explains in 164:

part of a . . . scheme –

We submit that the reasoning that I have shown your Honours in those two judgments is, in substance, the same as that adopted by Justices Hayne, Toohey and Gaudron, and found to be indistinguishable in Lazarus in respect of one of the two defendants.

The other defendant, there was – the Court went further in the way that I have identified and Justice of Appeal Leeming, with whom Justices McColl and Simpson agreed, held even in relation to the elements situation that Nicholas supported the conclusion that that law was valid. I will not take your Honours to it, but can I ask you to note paragraphs 124 through to 131 and the conclusion at 137.

So, in our submission, this case is a reasonably straightforward case.  The Confirmation Act adopts a formula that Parliament – both Commonwealth and States – have adopted regularly before and it does nothing different than they have done before:  identifies certain facts, changes their legal characterisation, with legal consequences.  And if your Honours accept that then, on the unchallenged authorities, including those on which I rely, your Honours should uphold the Act.

If you do that, questions (1)(a) and (b) must both be answered “no”, the plaintiff having now accepted both in reply and in the first line of

paragraph 10 of the oral outline that what is referred there as “question 2”, but I think means (1)(b), is derivative upon question (1).  So, both questions (1)(a) and 1(b) should be answered “no”, and question (2) should be answered “the plaintiff”, which is as to costs.

Unless your Honours have any questions, those are our submissions.

GAGELER CJ:   Thank you.  The Solicitor for Western Australia. 

MR BYDDER:   May it please the Court.  We adopt the oral submissions of my learned friend the Solicitor‑General for the Commonwealth.  Those submissions have addressed most of what we would wish to address your Honours on.  The only additional matter that we would seek to draw your Honours’ attention involves taking your Honours back to Nicholas v The Queen 193 CLR 173, volume 3 of the joint book of authorities, tab 15.

The reason we take your Honours back, in particular to paragraph 5 of the decision, is that there is a difference between the statutory formulation in the legislation that was under consideration in Nicholas and the Confirmation Act that is now before the Court, but the difference does not provide a basis for distinguishing Nicholas from this case.

The difference is explicable by reference to the different basis upon which the evidence that was of concern may or, in the case of this matter, would be inadmissible, but the legislation is doing the same thing:  making admissible evidence that otherwise may have been or would have been inadmissible.  At paragraph 5 of the judgment of Chief Justice Brennan, the relevant section 15X is set out in full, and critically, it identifies that:

In determining, for the purposes of –

certain prosecutions:

whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer –

may have:

committed an offence in importing –

them was:

to be disregarded, if –

certain criteria were satisfied.  The statute, in my respectful submission, was characterised or was framed in that way because the basis upon which, in Ridgeway, this Court had held that evidence of that kind ought to be excluded was because there was a discretion, referred to in Ridgeway, to exclude evidence on public policy grounds on the basis that it had been obtained unlawfully.

That being the basis, the trigger – if I can put it that way – upon which inadmissibility may follow, section 15X was framed to identify the critical consideration – and, of course, being a judicial discretion, it would involve the Court approaching the matter, balancing the relevant considerations and coming to a view.

The position is different under the Interception Act in that under section 177 – I will not take your Honours to it, your Honours have been taken to the provision, but under section 177 there was a mandatory exclusion of the evidence if certain criteria were satisfied, and the criteria – or criterion – is mirrored in section 5(1) of the Confirmation Act.  It is for that reason that there is a difference in the statutory expression of the same purpose to make admissible what otherwise would have been inadmissible.

STEWARD J:   Mr Solicitor, did you mean to refer to section 77?

MR BYDDER:   I beg your pardon, I did, your Honour.  Thank you.

STEWARD J:   Yes, all right, thank you.

MR BYDDER:   There is difference in statutory expression.  It does not provide a basis for distinguishing the decision of this Court in Nicholas from the circumstances of this case.  We otherwise, your Honours, adopt our written submissions and our oral outline.  Unless there is any other assistance I can provide to the Court, those are the submissions for Western Australia and Victoria.  May it please the Court.

BEECH-JONES J:   Can I just ask you one question, Mr Solicitor ‑ ‑ ‑ 

MR BYDDER:   Yes, your Honour.

BEECH-JONES J:   ‑ ‑ ‑ because I think you have only just enacted the Evidence Act (WA), is that correct?

MR BYDDER:   We have not, at this stage.  It is before the Parliament, your Honour.

BEECH-JONES J:   I see.  Now, the reference in 5(3) mirrors 138 of the Uniform Evidence Act.  What do you say would be the effect of that on a

Bunning v Cross – is the position in Western Australia effectively a Bunning v Cross‑style discretion?

MR BYDDER:   It is, your Honour, yes.

BEECH-JONES J:   What do you say the effect of that would be on the exercise of that discretion?

MR BYDDER:   The effect of that would be to exclude that discretion on the basis – it would exclude the possibility of evidence being inadmissible under a Bunning v Cross discretion on the basis that it was illegally or improperly obtained.  But it does not exclude, thereby, every other possible basis on which the Court may maintain control of its proceedings in relation to the admissibility of evidence.  But, in a Western Australian context, in the absence of the Uniform Evidence Act, in my submission, that would be its effect.

BEECH-JONES J:   Do you mean there would be simply no room for any Bunning v Cross common law discretion outside a – with no illegality and nothing improper, is that the ‑ ‑ ‑ 

MR BYDDER:   I am sorry, I have been imprecise.  That is the point I sought to make in response to your Honour.  Section 5(3) will exclude the discretion being exercised on any of the footings that appear in 5(3), that is, on the basis of those.  It does not exclude any other bases on which it may be exercised.

May it please the Court.

GAGELER CJ:   Thank you.  Mr Robertson. 

MR ROBERTSON:   May it please the Court.  We adopt generally the submission from our learned friends the Solicitors‑General of the Commonwealth and for Western Australia.  The particular point that we seek to emphasise is that the premise of the arguments of the plaintiffs must fail in circumstances where the Confirmation Act does not effect what it described as a legislative declaration of fact.  We, of course, do not accept that if the principle was right, the conclusion was followed, but the point that we make is that if that premise fails, the conclusion must not follow, and the plaintiffs’ case fails at the first hurdle.

What the Confirmation Act does is confirms or affects the legal characterisation of certain facts, most significantly, how certain information or records are to be characterised for the purposes of the Interception Act.  In answer to that submission, Mr Walker’s oral outline at paragraph 5 poses this question – well, if that is right – quote:

what facts as found does s 5(1) operate upon?

The answer to that, in our submission is the answer that fell from Justice Gordon this morning.  The facts that it operates on are those that appear in the chapeau to section 5(1).  The relevant fact – or, to use another term, factum – is:  is there information or a record obtained under or purportedly under a relevant warrant?  In the event that that fact is proven, it has the statutory consequences in (a) and (b), and the flow‑on statutory consequences in subsection (2) and (3).

When the scheme of the Confirmation Act is understood in that fashion, the plaintiff is wrong to submit that it has the consequence of reducing the function of the courts to “the merest of formalities”, the phrase that they adopt, rather, it leaves intact the court’s decisional independence, including, importantly, its function of finding the ultimate facts and adjudicating accordingly.

Indeed, the Confirmation Act does not even foreclose the question of the admissibility of the evidence.  True it is, under section 5(3) and section 6(3), that will have the practical effect of avoiding some kinds of objections to evidence, either of the section 138 Uniform Evidence Law kind or of the Bunning v Cross kind.  But it does not exclude, as I think Mr Walker accepted orally, albeit a different position seemed to be taken in writing at paragraph 44 of his submissions in chief and paragraph 16 of his reply, it does not affect other potential powers for the exclusion of evidence.

For example, if, in relation to a particular record or information, the court is satisfied that receiving that evidence would be more prejudicial than probative, then there will be a power and, under the Uniform Evidence legislation, indeed, a duty to exclude that evidence.  When one understands the scheme and the limited operation of the Confirmation Act, this legislation is a very long way away from reducing the role of the court to the merest formalities.

It has the consequence, in our submission, of this legislation not being relevantly distinguishable to cases like Nicholas and Duncan, and, in our submission, the same result should apply as from those cases, in other words, answering questions (1)(a) and (1)(b) in the negative.

BEECH-JONES J:   Mr Robertson, while I have you – you may not know this, but as I understand it, at least some of this evidence is said to constitute admissions by the relevant offender.  Is that right?

MR ROBERTSON:   It may well be that my learned friend Mr Hinton is in a better position to answer that than me.

BEECH-JONES J:   Indeed.  Yes, I will ask him that.

MR ROBERTSON:   I think I know the answer, but I think Mr Hinton is in a better position to answer it than me.

BEECH‑JONES J:   Yes, a fair point.

MR ROBERTSON:   Unless we can assist further, those are our submissions.

GAGELER CJ:   Thank you, Mr Robertson.  Mr Hinton.

MR HINTON:   If the Court pleases.  I was hoping to adopt the submissions of the Commonwealth Solicitor‑General, New South Wales and Western Australia and avoid saying anything, but it appears I have some questions to answer.

BEECH-JONES J:   Just the one.

MR HINTON:   Admissions, yes.

BEECH-JONES J:   So, we are into – one of the possible discretions is the unfairness – not unfairly prejudicial, unfairness?

MR HINTON:   Correct, if your Honour pleases.

BEECH‑JONES J:   Yes.

MR HINTON:   May I answer another question – your Honour asked about section 6 of the Confirmation Act.  There are on foot, and yet to be ruled upon by Justice Kimber, challenges to warrants obtained under the Surveillance Devices Act.  Those warrants were of two kinds, because during the course of Operation Ironside, the Act was amended.

So, the challenges are facial challenges; there is supposedly a legal unreasonableness challenge; there is also a challenge on the basis that some components of the AN0M platform – if I can call it that – were not subject to warrants, so that – in the appeal, the components of the AN0M platform will be unpacked, but you start with a mobile device, you end up with servers that the AFP had, and, in between, you have an XMPP server and two servers in Sydney that you have to go through.  So, there were not warrants with respect to all components, it was considered that that was not necessary, but in any event, those warrants would now be protected in part by section 6(1)(a) and (b).  There are also challenges ‑ ‑ ‑

GORDON J:   Sorry, protected in part, or in whole?

MR HINTON:   In whole, if your Honour pleases.

GORDON J:   You said “in part”, that is why I am asking you.

MR HINTON:   Yes.  Sorry.  I correct myself – in whole.

BEECH-JONES J:   Is that right or is that actually saying not that they deem the warrants that were issued to be valid, but that they deem that the information was obtained under a warrant that was valid?

MR HINTON:   If your Honour pleases.

BEECH‑JONES J:   Is that right?

MR HINTON:   So, to the extent that there is a facial challenge and there was no warrant, you are protected, yes.

BEECH‑JONES J:   All right.

MR HINTON:   The Crimes Act warrants ‑ ‑ ‑ 

GORDON J:   Sorry – and to the extent that you do not have a warrant for the relevant bit, you are protected.

MR HINTON:   Well, no, with respect, because it is linked to having a warrant.  So, that argument would remain.

GORDON J:   I see.  So, that is why I am asking you – it is not a complete answer to all of the challenges under section 6?

MR HINTON:   Correct, your Honour.

GORDON J:   Thank you.

MR HINTON:   There are also challenges to the data obtained using the three e‑warrants.  That is largely a fruit of the poisoned tree challenge.  If the Court pleases, we are content otherwise to rely upon our written submissions, unless anyone else wants to know about that prosecution.  I should just say that that challenge to the warrants is chapter 5 of 17 chapters.  The questions numbered 1 and 2 of the questions reserved were chapter 1.  The trial judge remains reserved on a number of pre‑trial arguments, and there are still many that have not as yet been heard, all dealing with admissibility.

If the Court pleases.

GAGELER CJ:   Thank you.  We will take the luncheon adjournment.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

GAGELER CJ:   Mr Walker.

MR WALKER:   Your Honours, there are only a few things I want to mention in reply.  Can I take up the notion that, using section 5 as the model, though it is not the whole of the matter, in the Confirmation Act, there has been a change of law rather than, as we would put it, the legislative stipulation of a matter of fact.

It was put against us that they are provisions which, in relation to fact, go no further or differently from simply affecting what facts or perhaps evidence would be regarded as relevant.  Now, of course, when one considers the precedent in Nicholas, as you have seen from our written argument, there is a world of difference between a command that something formally relevant, even decisive, is to be disregarded, and a legislative command that it is not as it is.

In our submission, equally fallacious is notion that what the Confirmation Act does in those provisions is to dispense, as it were, those concerned with admissibility from giving attention to the definitions, relevantly, the Interception Act definitions, as to that which constitutes an “interception” and its duration, all of which are factual matters.  The fact is that there is no dispensing from the definitions in the Interception Act by the Confirmation Act which, in the way I noted in chief – see section 4 – adopts, unaltered, for the purpose of this so‑called confirmation, the definition provisions of “interception”, all of which is factually constituted.

Another notion pressed upon your Honours was that such principles as might indicate some cases that would be on the wrong side of the line, in terms of legislative competence, as to imposing upon a court a certain outcome – factual, perhaps, in nature – was to suggest that maybe that applied when something called an ultimate fact – query, an actual element in an offence – was the object of the legislative stipulation.  In our submission, there is no reason in principle that such cases, which may well be paradigm cases for detecting a trespass into judicial territory, would exhaust the possibilities.

Take a familiar and, many would say, a very important element both at common law – remembering the judge’s rules – and now under statute, with respect to the admissibility of confessions, and whether, as a matter of common law or as a matter of a statute, if voluntariness included an absence of violence or threats of violence, for example, one would not describe, as an element in a defence, the question whether or not an alleged confession had been beaten out of the person or by threats to beat it out of him.  It would be an ultimate fact, for the purposes of the voir dire, on the admissibility of that evidence; it might even be a decisive fact, but it would no doubt be in the context of all the other evidence bearing upon the question of the voluntariness of the confession.

In our submission, a statute that took, without purporting to amend the substantive law, be it common law or, for that matter – more likely nowadays – a statute concerning the voluntariness of confession and the inconsistency of voluntariness with violence or threat of violence, a statute that simply said that interview of that person – or those interviews of those hundreds of people – conducted in this fashion, in these circumstances, which were argued on the voir dire to be violent or a threat of violence, they had to be taken to be not violent and involving no threat of violence, with the legal consequence, of course, that the law unamended substantively would operate so as to have that evidence admissible against those prisoners, perhaps with an obvious and drastic result.

Now, in our submission, one cannot view with equanimity any approach taken in this case which would rather tend to suggest that if such a statute, supposedly remedial, were enacted in order to meet a forensic move by accused persons to allege violence or threat of violence with respect to an alleged confession, the Court, in our submission, would draw short of saying that is the kind of legislative response to a forensic exigency which is nothing more than changing legal consequences.

It certainly does change the legal consequences in the example I have given – evidence would be admissible, notwithstanding that it was a confession beaten out of somebody.  That, in our submission, cannot possibly be the end of the matter because, in truth, such a law as I have posited, which resembles the law in this case in this regard, is one which says:  not take a fact – a factum – that existed and give different consequences to it, but you are now to act fictitiously as if the facts are not as they were, they are now to be taken as having been created by legislative fiat.  That, in our submission, is what is at stake in this case, as a matter of principle.

That is all I want to say by way of reply.

GAGELER CJ:   Mr Walker, can we just confirm that section 6 is being challenged in this case?

MR WALKER:   Yes.

GAGELER CJ:   I do not think we have heard any argument directed to section 6.

MR WALKER:   I do not think it is quite correct to say you have not heard argument, but it is certainly true that section 5 has been to the forefront of what we have put, because it is the section which, by the combination of sections 5, 6 and 7, requires the court to proceed on the basis that there was not an interception answering to the factual description in the Interception Act.

GAGELER CJ:   If section 5 is valid, do you put any independent argument that section 6 is invalid?

MR WALKER:   I cannot, and I do not.

GAGELER CJ:   Thank you.  Thank you, Mr Walker.  The Court will consider its decision in this matter, and we will move to the next matter listed for hearing today, which is CD v Director of Public Prosecutions.  It may be convenient if we adjourn for a minute.

MR DONAGHUE:   Can I just confirm, your Honour, that those of us who are not appearing in that case are excused?

GAGELER CJ:   Yes.  We will adjourn for one minute, and then the next matter will be called.

AT 2.22 PM THE MATTER WAS ADJOURNED