Coco v the Queen

[1994] HCA 15

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

COCO v THE QUEEN (1994) 179 CLR 427, (1994) 120 ALR 415, (1994) Aust Torts Reports 81-270, (1994) 68 ALJR 401, (1994) 72 A Crim R 32

13 April 1994

Evidence—Police

Evidence—Criminal—Listening devices—Authority to use—Judge empowered to authorize use of listening device—"ether power to authorize use included power to authorize entry on to premises to install device—Validity of authority—Invasion of Privacy Act 1971 (Q.), ss. 43, 46(1). Police—Listening devices—Offence under State law to use without obtaining authority—Federal police not required to obtain "licence or permission" under State law—"ether federal police enabled to use listening device without obtaining authority—Invasion of Privacy Act 1971 (Q.), ss. 43, 46(1)—Australian Federal Police Act 1979 (Cth), ss. 9, 12.

Orders

Appeal allowed.

Set aside the order of the Court of Appeal of Queensland and in lieu thereof order that the appeal to that Court be allowed, the appellant's conviction be quashed and a new trial be held.

Decisions

MASON CJ, BRENNAN, GAUDRON AND McHUGH JJ The facts of this matter have been set forth in the reasons for judgment prepared by Toohey J

2. The questions which arise for decision are:

(1) Did s.43(2)(c) of the Invasion of Privacy Act 1971 (Q.) ("the Queensland Act") confer authority on Carter J to authorize entry onto premises for the purposes of installing and maintaining listening devices in circumstances where that entry otherwise would have constituted an unlawful trespass? (2) If not, was the approval granted by Carter J for the use of listening devices wholly void? (3) If the approval was wholly void, did s.12 of the Australian Federal Police Act 1979 (Cth) ("the Federal Act") have the effect that the Australian Federal Police officers did not require approval from a Supreme Court judge before using a listening device?

3. If the approval was not wholly void, a number of other issues arise. However, as a result of the view we take on the validity of the approval as a whole, it is not necessary to address those issues.

4. It is convenient to consider these questions in the order in
which we have stated them.

The authority conferred by s.43(2)(c) of the Queensland Act

5. According to its long title, the Queensland Act is an Act to make
provision for, among other things:

"regulating the Use of Listening Devices".

Section 43(1) makes it an offence to use "a listening device to overhear, record, monitor or listen to a private conversation". Section 43(2) provides that s.43(1) does not apply in various situations described in that sub-section. In particular, s.43(2)(c) provides that s.43(1) shall not apply:

"to or in relation to the use of any listening device by - (i) a member of the police force acting in the performance of his duty if he has been authorized in writing to use a listening device by - (a) the Commissioner of Police; (b) an Assistant Commissioner of Police; or an officer of police of or above the rank of Inspector who has been appointed in writing by the Commissioner to authorize the use of listening devices,

under and in accordance with an approval in writing given by a judge of the Supreme Court in relation to any particular matter specified in the approval".

6. Section 43(3) deals with the granting of approval by a judge for the use of a listening device. The sub-section provides that the judge shall have regard to:

"(a) the gravity of the matters being investigated; (b) the extent to which the privacy of any person is likely to be interfered with; and

(c) the extent to which the prevention or detection of the offence in question is likely to be assisted,

and the judge may grant his approval subject to such conditions, limitations and restrictions as are specified in his approval and as are in his opinion necessary in the public interest".

7. It is common ground that, subject to the possible operation of s.12 of the Federal Act, if the use of the listening devices was not authorized by Carter J in the present case under s.43(2)(c), evidence of the relevant conversations heard by means of the listening device was not admissible by reason of the prohibition in s.46(1). That sub-section renders evidence of the tape-recordings inadmissible if that evidence was procured "as a result, direct or indirect, of the use of a listening device used in contravention of section 43". The question whether the approval given by Carter J purportedly under s.43(2)(c) was valid is not answered by showing that Carter J made a mere error of fact or law in giving an approval for the use of listening devices. The question is whether the giving of that approval involved a jurisdictional error.

8. Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right ((1) Entick v. Carrington (1765) 2 Wils KB 275 at 291 (95 ER 807 at 817); Halliday v. Nevill (1984) 155 CLR 1 at 10 per Brennan J;
Plenty v. Dillon (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ, 647 per Gaudron and McHugh JJ See also Colet v. The Queen (1981) 119 DLR (3d) 521 at 526.). In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law ((2) Halliday v. Nevill (1984) 155 CLR at 10 per Brennan J; Plenty v. Dillon (1991) 171 CLR at 639 per Mason CJ, Brennan and Toohey JJ, 647 per Gaudron and McHugh JJ). Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct ((3) Plenty v. Dillon (1991) 171 CLR at 648 per Gaudron and McHugh JJ; Morris v. Beardmore (1981) AC 446 at 455, 463; Colet (1981) 119 DLR (3d) at 527-528.). But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v. Dillon ((4) (1991) 171 CLR at 654.):

"(I)nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights".

9. In England, Lord Browne-Wilkinson has expressed the view that the presence of general words in a statute is insufficient to authorize interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required ((5) Wheeler v. Leicester City Council (1985) AC 1054 at 1065; see also Marcel v. Commissioner of Police (1992) Ch 225 at 234; Lord Browne-Wilkinson, "The Infiltration of a Bill of Rights", (1992) Public Law 397 at 404-408.). That approach is consistent with statements of principle made by this Court, to which we shall shortly refer. An insistence on the necessity for express words is in conformity with earlier judicial statements in England which call for express authorization by statute of any abrogation or curtailment of the citizen's common law rights or immunities. Thus, in Raymond v. Honey, Lord Bridge of Harwich stated that ((6) (1983) 1 AC 1 at 14.) :

"a citizen's right to unimpeded access to the courts can only be taken away by express enactment".

And, in Morris v. Beardmore, Lord Scarman observed ((7) (1981) AC at
463.):

"When for the detection, prevention, or prosecution of crime Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation."

10. The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with
fundamental rights ((8) See Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 12 per Mason CJ).

11. So long as the requirement for express statutory authorization is understood in the sense explained above, we would accept the requirement as a correct statement of principle. At the same time, in our view, the principle was expressed more simply by Brennan J in Re Bolton; Ex parte Beane ((9) (1987) 162 CLR 514 at 523.) in these terms:

"Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."

12. In Bropho v. Western Australia ((10) (1990) 171 CLR 1 at 18.), Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:

"'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used' ((11) Potter v. Minahan (1908) 7 CLR 277 at 304.) ".

At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.

13. The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize that the test is a very stringent one ((12) See the discussion in Bropho
(1990) 171 CLR at 16-17.). As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope.

14. Section 43 of the Queensland Act does not contain express words conferring power upon a Supreme Court judge to authorize conduct which would otherwise be tortious and involve interference with a fundamental common law right. In this case, the installation of the listening device in the premises of Cosco Holdings Pty. Ltd. ("Cosco") infringed the fundamental right of a person to exclude others from his or her property. Section 43 authorizes an invasion of privacy by allowing, in certain circumstances, the monitoring and recording of private conversations. The question is whether it also allows a judge to authorize members of the police force to enter onto premises in such a way as would otherwise amount to a trespass in order to install the devices.

15. The requirement in s.43(3)(b) that the judge shall have regard to "the extent to which the privacy of any person is likely to
be interfered with" does not necessarily or clearly point to authorization of entry onto premises. In the context in which it appears, it points naturally to interference with the privacy of communication.

16. The respondent argued that, in the context of s.43(3), authorization "to use a listening device" extends to installation of a listening device where it is necessary to enter onto premises in order to listen to a private conversation. One answer to that argument is that the word "use" has a narrower meaning. That meaning is to be gleaned from the definition of "listening device" in s.4 of the Queensland Act. The definition is in these terms:

"'listening device' means any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place" (emphasis added).

17. The other and more compelling answer is that there is no clear expression in the legislation of an unmistakable and unambiguous intention to confer such a power. In our view, it cannot be said that there is to be implied in s.43 power in a judge to authorize conduct which otherwise would amount to a trespass. Support for this view is provided by the dissenting judgments in Reference re an Application for an Authorization ((13) (1984) 14 DLR (4th) 546, per Dickson J, with whom Chouinard J concurred. See also Lyons v. The Queen (1984) 14 DLR (4th) 482, per Dickson J, with whom Chouinard J concurred.) and Dalia v. United States ((14) (1979) 441 US 238, per Stevens J,
with whom Brennan and Marshall JJ concurred.). Each of these cases concerned the question whether there should be implied into a statute authorizing the use of listening devices the power to effect otherwise tortious entry to install such devices.

18. In Dalia v. United States, Stevens J adopted as his starting point the proposition that "it is most unrealistic to assume that Congress granted such broad and controversial authority to the
Executive without making its intention to do so unmistakably plain" ((15) ibid. at 266.). In his Honour's view, the implication of such powers into the statute was "especially anomalous" because the statutory regime established to regulate the use of listening devices was "in all other respects ... exhaustive and explicit" ((16) ibid. at 266-267.). According to Stevens J ((17) ibid. at 279.):

"Congressional silence should not be construed to authorize the Executive to violate state criminal laws or to encroach upon constitutionally protected privacy interests ... Without a legislative mandate that is both explicit and specific, I would presume that this flagrant invasion of the citizen's privacy is prohibited".

19. It may be that Stevens J was influenced by constitutional considerations not present in the Australian context. However, the same comment cannot be made about the dissent of Dickson J in Reference re an Application for an Authorization, as the question in that case arose for decision before the introduction of the Canadian Charter of Rights and Freedoms. In that case, Dickson J held that a judge granting an authorization to use a listening device under the relevant Canadian legislation did not possess any authority to include a right of entry as a term of authorization ((18) (1984) 14 DLR (4th) at 570. See also Lyons (1984) 14 DLR (4th) at 488.).

20. First, Dickson J was not convinced that the interception of communications contemplated by the statute could not have been achieved without a trespass; interception may well have been more difficult, but it would not have been impossible. "The fact that (communications) could perhaps be intercepted more frequently and more conveniently if there were such a power constitutes ... scant justification for inferring such a power" ((19) ibid. at 557.). Secondly, Dickson J preferred, as we do, the dissenting opinion of Stevens J in Dalia v. United States - that where ((20) ibid. at 559.) :

"a legislative scheme speaks in considerable detail about most aspects of an issue, but is silent on one aspect, that silence is particularly telling ... Parliament's silence cannot be taken to sanction what amounts to breaking and entering."

And, if the statute did not explicitly or implicitly legalize a trespass for the purpose of installing a listening device, then there could be no power in a judge to authorize such an illegality ((21) ibid. at 570.).

21. The scheme in question in this case, established by Pt IV of the Queensland Act, is different in its precise words from the legislation in question in Lyons and Dalia. However, like the legislation in issue in those cases, Pt IV provides a detailed regime governing the use of listening devices and the publication of conversations recorded or overheard through the use of listening devices. Section 43(1) of the Act prohibits the use of listening devices to overhear private conversations. Section 43(2) provides a number of exceptions to the general prohibition in s.43(1), including provision for a judge of the Supreme Court to authorize the use of such a device ((22) The other exceptions provided for are where the person using the device is a party to the conversation (s.43(2)(a)), where a person unintentionally overhears a private conversation by means of a telephone (s.43(2)(b)),
where a Commonwealth customs officer is authorized by the
Comptroller-General of Customs and Excise to use a device (s.43(2)(c)(ii), and where a person "employed in connexion with the security of the Commonwealth" acting under a Commonwealth Act uses a device (s.43(2)(c)(iii)).), and s.43(3) lists three matters to which the judge is to have regard:

"(a) the gravity of the matters being investigated;

(b) the extent to which the privacy of any person is likely to be interfered with; and

(c) the extent to which the prevention or detection of the offence in question is likely to be assisted".

Section 43(3) also allows for the judge to limit or restrict his or
her approval where necessary in the public interest.

22. Once an authorization is granted, s.43(5) requires the Commissioner of Police to inform the Registrar of Commercial Acts of the authorization and report to the Registrar each month. Section 43(6) prohibits any person who uses a listening device to listen to a conversation pursuant to an authorization from communicating or publishing the conversation except in the performance of his or her duty. The Act also contains detailed provisions dealing with the publication of private conversations unlawfully listened to ((23) s.44.) and the publication of private conversations by parties to such conversations ((24) s.45.). Any evidence of private conversations obtained "as a result ... of the use of a listening device used in contravention of section 43" is inadmissible as evidence, subject to
certain exceptions ((25) s.46.). Provision is made for the destruction of information not relating to a criminal offence obtained by the authorized use of a listening device ((26) s.47.). Finally, advertising of listening devices is prohibited ((27) s.48.). The regulatory regime established by Pt IV is clearly intended to protect persons from the invasion of privacy involved in the use of a listening device to overhear and record private conversations. The absence of any reference to a power of entry in this detailed and protective regime tells against the argument that such a power is to be implied ((28) See Reference re an Application for an Authorization (1984) 14 DLR (4th) at 559 per Dickson J).

23. Further, it has not been suggested that such listening devices as existed at the time the legislation was enacted could not be used without making entry for installation which would amount to a trespass. Although it may be that many devices required entry to premises for installation, this cannot be said of all devices. Further, as Dickson J observed ((29) ibid. at 557.), lawful entry may be gained to the premises to effect installation through the co-operation of a person who has a legal right of entry to the premises.

24. It follows that, in our view, the Queensland Act did not confer power on Carter J to authorize entry onto the premises of Cosco. In the light of this conclusion, it is necessary to examine the validity of Carter J's approval.

The validity of Carter J's approval

25. On 26 October 1989, Carter J approved the use of listening devices in relation to the relevant investigations. Paragraph 1 of the order was in these terms:

"1. That Kenneth Charles SCANLAN of the Queensland Police Force by himself or by means of any other person engaged in or assisting the investigation of the said matter, use any listening device or devices capable of recording, overhearing, monitoring or listening to a private conversation simultaneously with its taking place, such listening device or devices to be installed in premises occupied by Santo Antonio COCO at 11 Anzac Road, Carina, and premises occupied by COSCO Holdings Pty Ltd at corner of Antimony and Emery Streets, Carole Park in the State of Queensland."

The approval was expressed to be subject to certain conditions, the
first of which was expressed as follows:

"1. That any authorised Police Officer or person engaged in, or assisting the investigation of the said offence, to enter and remain upon the said premises for the purposes of installing, maintaining, servicing and retrieving the said listening device or devices."

26. This condition does not make sense unless additional words are supplied. One possibility is to read in the words "is otherwise authorized" before the words "to enter and remain". If these words are supplied, the grant of approval would be subject to any police officer or person investigating the offence being otherwise lawfully authorized to enter and remain upon the premises for the purposes mentioned. But it could not have been intended to make the approval subject to every person engaged in or assisting the investigation being so authorized. The only persons needing such authorization were those installing, maintaining, servicing and retrieving the listening devices.

27. The other and, in our view, more likely possibility is that the words "is hereby authorized" should be inserted before the words "to enter and remain". Although it would not have been necessary to authorize all those engaged in or assisting the investigation, Carter J, considering that he had power to do so, might well have thought it desirable to grant an approval in those terms. As it happens, s.43(2)(c) does not confer such a power. Nonetheless, the terms of the approval indicate that the question which Carter J addressed was whether he had power to approve and should approve the installation of listening devices at the premises of Cosco and the appellant and the use of the devices so installed. The terms of the approval show that he misapprehended the power that the statute conferred. He purported to exercise a power different from the power reposed in him.

28. Therefore, the question that arises is whether the part of
Carter J's order purporting to authorize entry (contained in "condition 1", but also encompassing part of par.1 of the approval) can be disregarded so as to leave on foot a valid approval for use of the device in so far as that use did not involve otherwise unlawful entry onto premises. The argument in favour of total invalidity was presented as an issue of severability. However, in our view, the question of validity depends upon what was a misapprehension by Carter J of the nature and scope of the discretionary power which was conferred by s.43(2) of the Queensland Act.

29. It follows from what we have already said that Carter J misapprehended the nature and scope of the power. By so doing, he misconstrued the statute which gave him jurisdiction, addressed an irrelevant consideration and exceeded his jurisdiction ((30) See Anisminic v. Foreign Compensation Commission (1969) 2 AC 147 at 195 per Lord Pearce; Reg. v. Gray; Ex parte Marsh (1985) 157 CLR 351 at 377 per Mason J). This error might also be characterized as an error on the face of the record.

30. The extraneous factor to which Carter J had regard, namely, the perceived necessity to approve entry onto private property for the purpose of installing, maintaining, servicing and retrieving listening devices, not only contributed to the making of the decision to approve the use of the listening devices but it also took the form of an invalid authorization to enter onto private property. No doubt in some circumstances it is possible to disregard that part of the decision that goes beyond power and treat as valid that part of the decision which is within power. But that must become a much more contentious exercise when the invalid part of the decision has influenced the making of the valid part of the decision. In this case, the approval is expressed in such a way as to make it appear that authorization to enter private property was an integral and essential element in the approval to use the listening devices. So much is made clear by the reference to installation in both the paragraph which constitutes the approval and the first condition. In this situation there is no scope for speculation, on the assumption that speculation is legitimate, about what Carter J would have done had he appreciated that authorization of entry onto private property was beyond power.

31. If it were necessary to consider the question from the viewpoint of severance, we would come to the conclusion that it is not possible to sever. The fact that what is bad is an integral and essential element of what is good leads to the conclusion that the approval is wholly void.

32. In this respect the respondent accepted that the existence of the authority did not preclude an attack on its validity in these proceedings in order to determine whether the evidence obtained by use of the listening device was admissible against the appellant. It is clear that the approval and the warrants are administrative and not judicial orders ((31) Love v. Attorney-General (N.S.W.) (1990) 169 CLR 308 at 322-323.).

Section 12 of the Federal Act
33. Section 12, so far as is relevant, provides:

"A member or staff member is not required under, or by reason of, a law of a State or Territory: (a) to obtain or have a licence or permission for doing any act or thing in the exercise of his powers or the performance of his duties as a member or staff member".

34. The argument is that s.12(a) authorizes a member of the Federal Police, without either the approval or the authorization required by s.43, to do what would be permissible by a State police officer only pursuant to s.43(2)(c) of the Queensland Act. In our view, s.12 is
not capable of being given the broad operation for which the respondent contends. It may be that s.12 overcomes the need under State or Territory law to have a simple licence or permission, e.g. a driver's licence or a licence to carry firearms. But to say that falls far short of saying that s.12 also applies so as to dispense with the necessity for approval under s.43(2)(c) of the use of a listening device under a statutory regime which gives very careful attention to the need to ensure that the decision-maker balances the interests of privacy with the public interest in investigating criminal offences and in preventing and detecting such offences.

35. Section 12(a), in its reference to "licence or permission" is ambiguous; it is not clear precisely what is contemplated by this phrase. Further, the meaning contended for by the respondent is so wide as to be, in our view, unreasonable. Accordingly, it is appropriate to consider extrinsic material in ascertaining the meaning of the section ((32) Acts Interpretation Act 1901 (Cth), s.15AB(1).).

36. When the legislative history of s.12 is examined, it can be seen that the section was adopted from s.6(4) of the Commonwealth Police Act 1957 (Cth), at the time when the Commonwealth Police Force became
the Australian Federal Police ((33) See Australia, House of Representatives, Australian Federal Police Bill 1979, Explanatory Memorandum at 2.). The debates in the House of Representatives on the Commonwealth Police Bill reveal that s.6, as a whole, was ((34) Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 27 November 1957 at 2634.):

"designed to confer upon Commonwealth police officers, in relation to the laws of the Commonwealth, all the powers and duties of State police officers either at common law or by the statute law of the States".

Thus, it is clear that Parliament did not intend, by s.12 of the Federal Act, to confer on the Federal Police powers wider than those enjoyed by State police.

37. To illustrate the operation of s.12, the example of firearms, referred to above, is instructive. Under, for example, s.5 of the Firearms Act 1989 (N.S.W.), no person is permitted to possess a firearm unless authorized to do so by a licence or permit. However, under s.4(2)(a) of the Firearms Act, a member of the New South Wales Police Service is not required to comply with s.5 ((35) See also s.3 of the Police Service Act 1990 (N.S.W.), which defines "police officer" as a member of the New South Wales Police Service.). Section 4 of the Firearms Act is silent as to Federal Police officers; however s.12 of the Federal Act would operate in these circumstances so that a Federal Police officer would not be required to comply with s.5 when possessing a firearm in the performance of his or her duties.

38. In relation to the use of a listening device, however, the position is significantly different. Under s.43 of the Queensland Act, a member of the Queensland Police Service is required to have an authority to use a device. Accordingly, if Federal Police officers are to be placed in substantially the same position as State police officers, and not to have powers greater than those of State police (except in so far as is expressly provided elsewhere in the Federal Act), then s.12 should not be given an operation that would allow Federal Police officers to do, without authority, what could be done by State police officers only with authority.

Conclusion

39. It follows from all that we have said that the evidence of the appellant's private conversations was obtained by means of the use of a listening device contrary to s.43 of the Queensland Act and was inadmissible.

40. The appeal must be allowed. The respondent conceded in argument that, if the evidence obtained by use of the listening device was inadmissible, then the appellant's conviction should be quashed and a new trial ordered. Accordingly, we would quash the appellant's
conviction and order a new trial.

DEANE AND DAWSON JJ Subject to the comments which follow, we agree with the judgment of Mason CJ, Brennan, Gaudron and McHugh JJ

2. It is settled law that a court should not impute to a legislature an intention either to abolish or to modify a fundamental common law right or privilege unless the relevant legislation makes such an intention unambiguously clear ((36) See, e.g., Baker v. Campbell (1983) 153 CLR 52 at 96, 116 and 123; Hamilton v. Oades (1989) 166 CLR 486 at 495, 500; Bropho v. Western Australia (1990) 171 CLR 1 at 17.). Obviously, the most satisfactory means of manifesting a legislative intent to that effect is by express and specific words. There can, however, be circumstances where such a legislative intent is made unambiguously clear notwithstanding the absence of express words ((37) See, e.g., Mortimer v. Brown (1970) 122 CLR 493 at 498-499; Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 152 CLR 328 at 341, 347; Sorby v. The Commonwealth (1983) 152 CLR 281 at 289-290.). One example of such circumstances is where the relevant legislative
provisions would otherwise be rendered either inoperative or nonsensical. Indeed, the relevant provisions of the Invasion of Privacy Act 1971 (Q.) ("the Act") would provide such an example if the definition of "listening device" in s.4 of the Act were expanded by adding the words "concealed on private premises without the knowledge or consent of the occupier".

3. Again, if the circumstances in which a listening device could be used were, as a practical matter, confined to cases where the listening device was installed in premises without the knowledge of the occupier, it would be strongly arguable that the relevant provisions of the Act manifested a clear legislative intent to authorize the clandestine entry of private premises to the extent necessary to install and maintain a listening device whose use was authorized by those provisions. There are, however, a variety of circumstances in which a listening device can be used without any clandestine entry of premises being necessary. Listening devices can be used to monitor conversations in circumstances where they are installed and maintained on premises pursuant to the consent of the occupier. They can also be used in circumstances where they are not even on premises. That being so, it simply cannot be said that the provisions of the Act impliedly ((38) The power of a judge to grant authority for the use of a listening device is implicit in s.43(2)(c)'s provision that the prohibition on the use of listening devices imposed by s.43(1) does not apply in certain circumstances where the use of the device is "in accordance with an approval in writing given by a judge of the Supreme Court in relation to any particular matter
specified in the approval".) empowering a judge to grant authority for the use of a listening device would be rendered either inoperative or nonsensical by a refusal to impute to the legislature an intention to authorize, directly or indirectly, what would otherwise be an unlawful entry on premises. Nor is there anything else in the Act which supports and makes manifest a clear and unambiguous legislative intent to that effect. It follows that the provisions of the Act impliedly authorizing a judge to grant authority to use a listening device do not also empower a judge granting such authority to authorize the commission of otherwise unlawful acts in introducing or maintaining the device on private property.

4. We are, of course, conscious of the fact that our conclusion that the relevant provisions of the Act do not directly or indirectly authorize an otherwise unlawful entry upon premises does not lie well with the decisions of the United States Supreme Court in Dalia v. United States ((39) (1979) 441 US 238.) and of the Supreme Court of Canada in Lyons v. The Queen ((40) (1984) 14 DLR (4th) 482.) and Reference re an Application for an Authorization ("the Wiretap Case") ((41) (1984) 14 DLR (4th) 546.). With all due respect, however, we consider that the reasoning in the dissenting judgments of Dickson J in the two Canadian cases is to be preferred in this country. In that regard, we note that Dickson J clearly recognized that a legislative intent to authorize trespass could be made manifest by necessary implication as well as by express words ((42) ibid. at 557, 566, 569.).

5. The wording of the authority to use listening devices in the present case is unsatisfactory in that some words would seem to have been accidentally omitted from the first of its "conditions". It is at least possible that the missing words would have expressly purported to authorize those installing the devices to commit acts which would otherwise constitute trespass to property. Be that as it may, the material placed before Carter J in support of the application for the authority clearly disclosed that the listening devices would be clandestinely concealed in private premises by conduct which involved such acts. The inference is unavoidable that his Honour mistakenly considered or assumed that he was empowered by the Act to grant express or implied authority to engage in that otherwise unlawful conduct. That mistake resulted in a fundamental misapprehension by Carter J about the extent of the powers being exercised and the nature and extent of the authority which was given. The effect of that misapprehension was to nullify the authority. Indeed, it is unlikely in the extreme that Carter J would, but for that fundamental misapprehension, have given the authority in the face of the material disclosing an intention to engage in otherwise
unlawful conduct.

TOOHEY J On 1 July 1993 the Court granted to the appellant, Santo Antonio Coco, special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of Queensland given on 27 May 1993. By its judgment, that Court dismissed the appellant's appeal against his conviction of the offence of offering to bribe Commonwealth officers contrary to s.73(3) of the Crimes Act 1914 (Cth). The Court of Appeal refused the appellant leave to appeal against the sentence imposed for that offence.

2. In granting the appellant special leave to appeal, the Court excluded the matter of sentence and also a ground of appeal based upon Bunning v. Cross ((43) (1978) 141 CLR 54.). At the same time the appellant was told that, on the hearing of the appeal, his counsel could renew the application for special leave to appeal based on Bunning v. Cross. Counsel renewed the application in that regard but, with the agreement of the parties, the Court heard argument only on those matters the subject of the original grant of special leave to appeal. Argument on the other matter awaits the outcome of this appeal.

Listening devices

3. The appeal itself concerns the meaning and operation of the Invasion of Privacy Act 1971 (Q.) ("the Act"), described in its long title as:

"An Act to make provision for the licensing and control of Credit Reporting Agents and Private Inquiry Agents, for regulating the Use of Listening Devices and for other purposes".

4. The issues arise under Pt IV - Listening Devices ((44) ss.41- 48.).
A "listening device" is defined by s.4 to mean:

"any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place".

The same section defines "private conversation" as meaning:

"any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so".

5. Section 43 of the Act makes it an offence to use a listening device in relation to a private conversation. There are a number of exceptions. It is necessary to set out part of the section:

" 1 A person is guilty of an offence against this Act if he uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a penalty not exceeding $2,000 or to imprisonment for not more than two years or to both such penalty and imprisonment. (2) Subsection (1) of this section does not apply - (a) where the person using the listening device is a party to the private conversation;

(b) to the unintentional hearing of a private conversation by means of a telephone;

(c) to or in relation to the use of any listening device by -

(i) a member of the police force acting in the performance of his duty if he has been authorized in writing to use a listening device by - (a) the Commissioner of Police; (b) an Assistant Commissioner of Police; or an officer of police of or above the rank of Inspector who has been appointed in writing by the Commissioner to authorize the use of listening devices, under and in accordance with an approval in
writing given by a judge of the Supreme Court in relation to any particular matter specified in the approval;

(ii) an officer employed in the service of the Commonwealth in relation to customs authorized by a warrant under the hand of the Comptroller-General of Customs and Excise to use a listening device in the performance of his duty;

(iii) a person employed in connexion with the security of the Commonwealth when acting in the performance of his duty under an Act passed by the Parliament of the Commonwealth relating to the security of the Commonwealth.

(3) In considering any application for approval to use a listening device pursuant to subparagraph (i) of paragraph (c) of subsection (2) of this section a judge of the Supreme Court shall have regard to - (a) the gravity of the matters being investigated; (b) the extent to which the privacy of any person is likely to be interfered with; and

(c) the extent to which the prevention or detection of the offence in question is likely to be assisted,

and the judge may grant his approval subject to such conditions, limitations and restrictions as are specified in his approval and as are in his opinion necessary in the public interest."

6. The section has important consequences for the admissibility of evidence in civil and criminal proceedings. This can be seen from the first two sub-sections of s.46 which read:

" 1 Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section 43 of this Act, evidence of that conversation may not be given by that person in any civil or criminal proceedings.

(2) Subsection (1) of this section does not render inadmissible - (a) evidence of a private conversation that has, in the manner referred to in that subsection, come to the knowledge of the person called to give the evidence, if a party to the conversation consents to that person giving the evidence;

(b) evidence of a private conversation that has, otherwise than in the manner referred to in that subsection, come to the knowledge of the person called to give the evidence, notwithstanding that he also obtained knowledge of the conversation in such a manner; or

(c) in any proceedings for an offence against this Act constituted by a contravention of, or a failure to comply with, any provision of this Part, evidence of a private conversation that has in the manner referred to in that subsection come to the knowledge of the person called to give the evidence."

Carter J's approval

7. On 26 October 1989 Carter J, acting pursuant to s.43(2)(c)(i) of the Act, approved the use of listening devices "in connection with the matter of police investigations relating to corruption including an offence of corruptly influencing Commonwealth Officers under Section 73(3) of the Crimes Act 1914". The order spelled out the approval in the following terms:

"1. That Kenneth Charles SCANLAN of the Queensland Police Force by himself or by means of any other person engaged in or, assisting the investigation of the said matter, use any listening device or devices capable of recording, overhearing, monitoring or listening to a private conversation simultaneously with its taking place, such listening device or devices to be installed in premises occupied by Santo Antonio COCO at 11 Anzac Road, Carina, and premises occupied by COSCO Holdings Pty Ltd, at corner of Antimony and Emery Streets, Carole Park in the State of Queensland. 2. That this authorisation apply until 12 noon on the 23rd
day of November 1989 or until further order. AND I DO ORDER THAT SUCH APPROVAL BE SUBJECT TO THE
FOLLOWING CONDITIONS 1. That any authorised Police Officer or person engaged in, or assisting the investigation of the said offence, to enter and remain upon the said premises for the purpose of installing, maintaining, servicing and retrieving the said listening device or devices. 2. That no such listening device or devices shall be used
to record any conversation between Santo Antonio COCO, and his legal advisers. 3. That no notice or report relating to this application
shall be published and no record of the application, summons and affidavit, or of any approval or order given or made thereon shall be available for search by any person except by direction or order of a Judge of this Honourable Court. 4. That the intended procedures set forth in the affidavits
of Kenneth Charles SCANLAN and John William ADAMS both sworn the 26th day of October 1989 be complied with."

On 20 November 1989 Carter J extended the approval upon two further conditions. It is unnecessary to detail the terms of the extension.

8. On 27 October 1989, that is, the day after the approval by Carter J, Ronald Joseph Redmond, Acting Commissioner for Police in Queensland, authorized Detective Inspector Scanlan, who was mentioned in the approval, "in the use of listening devices under and in accordance with an approval given in writing by Mr Justice W. CARTER, a Judge of the Supreme Court of Queensland". In support
of the application for the approval which had been made by Commissioner Redmond, Det. Insp. Scanlan had, in an affidavit, nominated members of the Australian Federal Police Technical Unit to assist in the installation of listening devices, members of the Australian Federal Police Force as monitors of the listening devices and as investigating members and two transcribers who belonged to the Commonwealth Public Service. In the same affidavit it was made clear that 7 days might be needed to install the listening devices because the residential premises were occupied and the factory premises occupied by Cosco Holdings Pty. Ltd. were operated on a twenty-four hours basis.

9. Although the approval referred to the installation of listening devices in two premises, one residential and the other commercial, it was only in respect of the factory premises that installation took place.

The challenge to admissibility of evidence

10. At the appellant's trial a body of evidence comprising tape recordings of conversations which took place at his office at the factory, and which was obtained by means of the listening device installed pursuant to the approval of Carter J, was admitted against the appellant's objection. It was said to be common ground that if the conversations so recorded should not have been admitted into
evidence the appellant's conviction cannot be sustained. The appellant mounted a number of challenges to the reception of that evidence.

11. The starting point for these challenges ((45) Other of course than those arising under Bunning v. Cross.) was s.46 of the Act which precludes reception of evidence of a conversation that has come to the
knowledge of a person by the "use of a listening device in contravention of section 43". The factual basis of the appellant's argument was as follows. On 6 November 1989 two Federal Police officers installed a listening device at the factory. In order to do
so they gained entrance to the premises by subterfuge. They impersonated Telecom employees and falsely claimed to employees of Cosco Holdings that they had come to investigate a fault in telephone lines. That conduct, it was said, was in breach of s.75(b) of the Crimes Act. The listening devices were powered by electricity and were used without the knowledge or consent of the company over a period of almost 200 hours. That conduct, it was said, was in breach of s.408 of the Criminal Code (Q.). While the conduct itself is not in issue, this Court is not asked to find that offences were committed; it is enough that the officers acted unlawfully and were trespassers.

12. Section 43(1) creates the offence of using a listening device but s.43(2) excludes the operation of sub-s.(1) in the circumstances there mentioned. One of those exclusions is the use of a listening device by a member of the police force "acting in the performance of his duty" if that member has been so authorized in writing by a senior police officer "under and in accordance with an approval in writing given by a judge of the Supreme Court". Put broadly, evidence obtained by means of a listening device is inadmissible unless one of the excluding provisions of s.43(2) of the Act is met. The relevant exclusion here is s.43(2)(c)(i).

13. Carter J's approval does not in its terms authorize any person to act contrary to law. But one of the conditions on which approval was granted was that those engaged in investigating the specified offence "enter and remain upon the premises for the purpose of installing, maintaining, servicing and retrieving the said listening device or devices".

14. The appellant posed a dilemma for the respondent somewhat in the following terms. If the approval purported to authorize illegal entry, such authorization would be beyond power and void. Further, the terms of the approval which purported to authorize illegal entry would be incapable of severance. The whole of the approval having been of no effect, the evidence was obtained in contravention of s.43 of the Act and was therefore inadmissible under s.46. However, if the authorization did not purport to authorize illegal entry or if it were severable, the police officers were acting other than in performance of their duties by the continuing trespass brought about by the presence of the listening device and the abstraction of electricity. Section 43(2) only excuses a police officer acting pursuant to
authority in performance of duty. Again, there had been a contravention of s.43 and the evidence was inadmissible.

15. The respondent had a number of answers to these contentions. The primary submission was that the power to authorize the use of listening devices necessarily contained a power to authorize illegal entry in order to install such devices. Alternatively, the respondent argued that the authorization of illegal entry could be severed and that, as the term "use" was restricted to "overhear, record, monitor or listen to", illegal entry did not fall within the scope of the prohibition in s.43. On this view, the surreptitious entry would be relevant only to the issue arising under Bunning v. Cross. As to the presence of the listening device and the abstraction of electricity, the respondent contended that these trespasses were very minor and did not detract from the performance of the police officers' duties.
An implication of unlawful entry?

16. There is nothing in the Act which in express terms authorizes entry on to premises without the consent of the occupier ((46) Contrast with Listening Devices Act 1969 (Vic.), s.4A(3); Listening Devices Act 1972 (S.A.), s.6(7).). Nevertheless, it was said by the respondent that unless unlawful entry is implied from the power to grant an approval the Act cannot be effective. There are situations in which an occupier of premises might consent to the installation of a listening device (for instance, where an employee is suspected of being involved in criminal activity or where an illegal deal is expected to be transacted in a hotel room) and situations in which the listening device does not require entry on to premises at all. Nevertheless, particularly where residential premises are involved, the practical operation of the Act is reduced if entry must be lawful, that is, with the consent of the occupier.

17. However, the weight of authority is strongly against the implication necessary for unlawful entry to fall within the general operation of s.43(2). That authority is at least as early as 1765 when in Entick v. Carrington Lord Camden L.CJ said ((47) (1765) 19 St Tr 1029 at 1066.):

"By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing. ... If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him."

The principle in Entick v. Carrington received affirmation by this Court in Plenty v. Dillon ((48) (1991) 171 CLR 635.) where a power to serve a summons was held not to authorize a police officer to go on to private premises in order to serve the summons. As Gaudron and McHugh JJ observed ((49) ibid. at 648. See also Morris v. Beardmore (1981) AC 446 at 455.):

" A number of statutes also confer power to enter land or premises without the consent of the occupier. But the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise be tortious conduct".

18. Is there any basis for implying in Pt IV of the Act an authority to effect unlawful entry for the purpose of installing a listening device? The respondent contended that there was, relying heavily on the judgment of the Supreme Court of Canada in Lyons v. The Queen ((50) (1984) 14 DLR (4th) 482.).

19. Lyons concerned a charge of conspiracy to import cocaine. At trial the Crown introduced evidence of several private conversations which had been intercepted pursuant to court authorizations. The authorizations made no reference to the manner of installing the listening device, a radio transmitter, but each authorization permitted the "interception" of private communications and referred to the use of "any electromagnetic, acoustic, mechanical or other device". The Supreme Court, by majority, held that although the relevant provisions of the Canadian Criminal Code did not expressly
authorize entry into private premises, many of the kinds of interception provided for in the Code involved a trespass of some kind. Parliament should not be taken to have authorized the use of procedures and equipment without, at the same time, supplying the police with the appropriate means and authority to carry them out.

20. Estey J, with whom Beetz, McIntyre and Lamer JJ concurred, concluded a lengthy examination of the law in this way ((51) ibid. at 527; see also Dalia v. United States (1979) 441 US 238.):

" When seeking the proper interpretation of these provisions one should ask if Parliament must be taken as intending to give an authority to the investigating forces which could not be put to use. The invocation of powers granted under Pt IV.1 (of the Code) in aid of crime detection serves no purpose if the authorization granted relates only to isolated pieces of equipment without any direction or authorization that it be employed in association with authorized devices for interception either by wire-tapping or for electronic or acoustic surveillance. It is one thing to leave too much to the discretion of the investigative agency but quite another to stultify the whole undertaking."

21. On the other hand Dickson J, with whom Chouinard J concurred, dissented with these words ((52) ibid. at 488; see also the dissenting view of Stevens J (with whom Brennan and Marshall JJ agreed) in Dalia v. United States (1979) 441 US esp. at 266 where his Honour said, "it is most unrealistic to assume that Congress granted such broad and
controversial authority to the Executive without making its intention to do so unmistakably plain".):

"For the reasons I have already given in the Wiretap Reference, it is my view that Parliament did not intend ... to authorize the police to trespass to install a listening device. Accordingly, an authorization does not implicitly carry with it a right of entry to private premises. And equally, a judge does not possess any authority to include a right of entry as a term of an authorization."

22. Dickson J's allusion to the Wiretap Reference was to his judgment in Reference re an Application for an Authorization ((53) (1984) 14 DLR (4th) 546.). It is not possible to do justice to his Lordship's judgment in a few words but he stressed the "inviolability of a person's property (which) has from earliest times been vigorously asserted and resolutely defended by the courts" ((54) ibid. at 555.) and said that "(t)here has been no material presented to this Court to support the suggestion that oral communications cannot be effectively intercepted without the power to trespass to install listening devices" ((55) ibid. at 557.).

23. While the basis underlying the decision in Lyons is relevant to the present case, the Supreme Court of Canada was, as it expressly acknowledged, faced with a question of statutory construction, in particular the meaning to be attached to "interception". The language of the Act is markedly different and there is a real difficulty in seeking to transpose the meaning attached by a court to one set of words to another set of words the meaning of which is to be determined by a different court ((56) See National Mutual Life Association of Australasia Ltd. v. Godrich (1910) 10 CLR 1 at 13.). Rather than a term such as "interception", the Act contains a prohibition on the use of a listening device except where one of the identified exclusions operates. Relevantly, that means a written authorization by a Supreme Court judge. An inference that an authorization of itself carries permission to go on to private premises is one that cannot readily be drawn. To say this is not to lose sight of the fact that the Act is directed to invading privacy as well as protecting it ((57) cf. Lyons (1984) 14 DLR (4th) at 497 per Estey J). But the structure of Pt IV is to protect privacy of conversations except where expressly provided.
Any suggested parallel between inferences to be made from "interception" and inferences to be drawn from a prohibition, albeit a prohibition subject to exceptions, is unconvincing.

24. I find persuasive the observations of Dickson J mentioned earlier and also this passage from his Lordship's judgment ((58) Reference Re An Application for an Authorization (1984) 14 DLR (4th) at 554.):

" The appellants' claim that police officers are permitted to enter private premises to install listening devices is broad and indiscriminate. It is worthwhile to examine briefly the consequence of accepting that such a sweeping rights exists. The power so granted would go much further than authorizing surreptitious entry and would allow the police to act openly and utilize whatever means to achieve entry they found most expedient. Thus, access could be obtained by forcing doors or windows or through trickery or coercion. Further, if police acting under Part IV.1 are implicitly authorized to make entry, s. 25 of the Code would permit them to effect such entry by overcoming force a property owner is normally entitled to assert, to prevent anyone, including the police, from entering the premises without permission. If the right exists, it must exist in respect of premises of persons who, at the time the entry is made, are innocent of any offence as well as those who have more than passing acquaintance with the criminal process."

Using a listening device

25. However, the respondent further argued that the prohibition in s.43(1) of the Act is a prohibition against using a listening device, that entry on to premises and the installation of a listening device is not using a listening device, hence there was no contravention of s.43(1) in these activities. The definition of listening device
appears earlier in this judgment. Drawing on the definition, the respondent submitted that activities not falling within the description "overhear, record, monitor or listen to" cannot constitute using a listening device and so are outside the terms of s.43(1). Such activities, even if unlawful, do not detract from an approval, so the argument ran, for the approval is to "use", that is "to overhear, record, monitor or listen to a private conversation".

26. Whatever force that argument might have in terms of the proper construction of the Act, it cannot succeed here because the approval carried with it in express terms an authority "to enter and remain upon the said premises for the purpose of installing, maintaining, servicing and retrieving the said listening device or devices". This authority to enter and remain upon the premises cannot be severed from the approval. Indeed, installation of the listening device was mentioned within the principle paragraph of the approval and also expressed to be a condition of use. Clearly it was regarded as an essential element of the approval and if it fails so does the approval.

Authority to use

27. There is however what appears to be a variation to the arguments of the respondent which have been discussed thus far. As I understand it, the starting point is that par.(c)(i) of s.43(2) excludes from the operation of s.43(1) a conversation overheard, recorded, monitored or listened to by a member of the police force authorized to use a listening device in accordance with an approval.

28. The argument accepts that the approval is not itself concerned with the means employed to make a listening device effective but contends that an authority to use a listening device necessarily carries authority to install the device where a conversation may be overheard, recorded, monitored or listened to. In other words, when s.43(2)(c)(i) speaks of "authorized ... to use" the expression denotes authority to overhear, record, monitor and listen to a private conversation. If that can only be done by going on to premises, that activity is necessarily embraced by the expression.

29. I have no quarrel with the initial premise in this argument. But the second is suspect and the conclusion is unsustainable. The prohibition in s.43(1) is in absolute terms. The exclusions in sub-s.(2) must be construed against this background and authority
to use cannot be read as an authority to enter upon premises surreptitiously in order to use, unless the language of sub-s.(2)(c) says so in clear terms. It does not do so.

Member of the police force acting in the performance of duty

30. Because of the conclusions reached thus far, it is strictly unnecessary to consider the appellant's argument that the police officers had acted other than in the performance of their duty. Nonetheless, it is desirable to say something about the matter. The argument was that even had the approval been valid and s.43(1) nothing to say as to illegal entry, the acts of the various police officers in overhearing, recording, monitoring and listening to private conversations of the appellant involved trespass such that each police officer was acting other than "in the performance of his duty" and, therefore, in contravention of s.43(1). The trespasses complained of were the continuing presence of the listening device and the abstraction of electricity.

31. The requirement "a member of the police force acting in the performance of his duty" has two aspects. The first is that the listening device be used by a member of the police force. The second is that it be used by that member in the performance of his duty. The first is concerned with characterization, the second with function.

32. The concept of performance of duty was expressed in the following
way by Dixon CJ in Canadian Pacific Tobacco Co. Ltd. v.
Stapleton ((59) (1952) 86 CLR 1 at 6.):

"The word 'duty' there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word 'function'. The exception governs all that is incidental to the carrying out of what is commonly called 'the duties of an officer's employment'; that is to say, the functions and proper actions which his employment authorizes."

33. It was no part of the officers' duty to trespass upon premises or to make use of Cosco Holdings' electricity. In Halliday v. Nevill ((60) (1984) 155 CLR 1; see also Morris v. Beardmore (1981) AC 446.) Brennan J commented ((61) ibid. at 10. (His Honour dissented as to whether the police officer in that case had a licence to enter premises but all members of the Court accepted that such a licence was necessary.)):

"A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law."

34. Nevertheless, if the police officers used the listening device in the honest and reasonable belief that their action was validly authorized by Carter J's approval, they may have obtained the benefit of s.22 of the Criminal Code which declares a person to be not criminally responsible for an act done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud ((62) See Shaw v. Coco (1991) 102 ALR 75 at 85- 86 per McPherson S.PJ). But this does not resolve the issue as to whether the police officers were acting in the performance of their
duty as required by s.43(2)(c). The respondent argued that, notwithstanding the decision in Halliday v. Nevill, the trespasses of the listening device's presence and the abstraction of electricity were so minor as not to detract from the performance of duty. Although this argument may have some force in relation to the presence of the listening device, it is difficult to conceive that the abstraction of electricity over a period of almost 200 hours could amount to anything other than a substantial trespass. However, as I have said, it is not necessary to decide the matter as in my view the approval was wholly invalid.

The meaning of police force

35. A number of arguments were mounted as to the meaning of the term "member of the police force" and the operation of the Australian Federal Police Act 1979 (Cth). The threshold question is whether the Federal Police officers involved in the surveillance of the appellant were members of the police force in terms of s.43(2)(c)(i) of the Act.

36. The Act contains no definition of "member of the police force".
But s.35 of the Acts Interpretation Act 1954 (Q.) reads:

"In every Act, unless the contrary intention appears -

(a) References to any officer or office shall be construed as references to such officer or office in and for this State;

..."

37. Furthermore, as the trial judge de Jersey J observed, the immediate impression on reading the Act is that "police force" is a reference only to the Queensland police force. The impression derives very much from the reference in s.43 to particular officers such as the Commissioner of Police, an Assistant Commissioner of Police and officers above the rank of Inspector. In each case the reference is clearly to members of the Queensland police force, especially when it is seen that the Commissioner of Police must inform the Registrar of Commercial Acts, a State officer, of authorizations granted ((63) s.43(5) of the Act.). The impression is strengthened further when it is seen that s.26(1)(a) of the Act, dealing with private inquiry agents, makes specific reference to "any member of the Commonwealth Police Force or of the police force of this State or any other State or
a Territory of the Commonwealth or any part of Her Majesty's Dominions".

Detective Inspector Scanlan's authority

38. A further question arises out of the preceding paragraph of these reasons. It is this. While the Federal Police officers were not members of the police force, Det. Insp. Scanlan certainly was. Carter J's approval for the use of a listening device was an approval directed to Det. Insp. Scanlan "by himself or by means of any other person engaged in or, assisting the investigation of the said matter".
The respondent contended that when the approval is read with Commissioner Redmond's authority to Det. Insp. Scanlan "in the use of listening devices under and in accordance with (the) approval", those nominated by Det. Insp. Scanlan to assist him were necessarily authorized in writing to use a listening device. The approval, it was said, contemplated the very thing that happened, namely the use of a listening device by those engaged in the investigation.

39. The argument has a certain attraction but it breaks down when regard is had to the language of s.43(2)(c)(i). There must be use of a listening device by a member of the police force authorized in writing by the Commissioner (or other senior officer mentioned) of that member. That did not occur here because the officers nominated by Det. Insp. Scanlan were not members of the police force.
Australian Federal Police Act

40. The respondent called upon s.9(2) of the Australian Federal
Police Act 1979 (Cth) which reads:

" Where any provisions of a law of a State apply in relation to offences against the laws of the Commonwealth or of a Territory, those provisions so apply as if: (a) any reference in those provisions to a constable or to an officer of police included a reference to a member; and

(b) any reference in those provisions to an officer of police of a particular rank included a reference to a member holding the rank that is, or is declared by the regulations to be, the equivalent of that rank."

41. Section 43(2) of the Act contains references consistent with pars (a) and (b) of s.9(2) of the Australian Federal Police Act. The question however is whether any provision of a law of a State applies in relation to offences against the laws of the Commonwealth.

42. De Jersey J held that s.9(2) was applicable for the following reasons. Federal Police officers are subject to the prohibition in s.43(1) of the Act. Therefore, in the detection of offences under Commonwealth law committed in Queensland they are denied the use of listening devices except in accordance with s.43(2). The facility for the granting of approval by a judge is directed to the detection of offences committed in Queensland, whether under State or Commonwealth laws. In consequence, the opening words of s.9(2) apply and the necessary transposition of State police officers to Federal Police officers may be made.

43. While de Jersey J's conclusion is correct, it does not assist the respondent unless Carter J's approval authorized unlawful entry on to the premises of Coco Holdings. For the reasons already given, it did not.

44. Before the Court of Criminal Appeal the respondent conceded that s.12 of the Australian Federal Police Act was not applicable. Before this Court the respondent sought to withdraw that concession though it did not press strongly a case for the application of s.12. Section 12 reads:

" A member or staff member is not required under, or by reason of, a law of a State or Territory: (a) to obtain or have a licence or permission for doing any act or thing in the exercise of his powers or the performance of his duties as a member or staff member; or

..."

45. The obstacle to applying s.12 in the present case is that
authority to use the listening device emanated from Det.
Insp. Scanlan, albeit with the approval of Carter J And Det. Insp. Scanlan was a member of the Queensland police force; he was not a "member" within the meaning of the Australian Federal Police Act ((64) s.4(1).). If it is sought to apply s.12 to the Federal Police officers in question, the removal of a need to have a licence or permission does not avail them for they are faced with the blanket prohibition in s.43(1) of the Act.

Conclusion

46. In summary then, none of the respondent's arguments warrants a conclusion that the approval of Carter J brought the actions of the various police officers involved in the surveillance of the factory premises of Cosco Holdings within s.43(2)(c)(i) or that they otherwise escape the prohibition against the use of a listening device found in s.43(1). The evidence of the appellant's private conversations was obtained by the use of a listening device in contravention of s.43(1) of the Act and was therefore inadmissible against the appellant.

47. It follows that the appeal to this Court must be allowed. It is unnecessary therefore to deal with the application for special leave to appeal based on Bunning v. Cross. The appellant's notice of appeal seeks an order that the judgment and orders of the Court of Appeal be set aside and that, in lieu thereof, "the appeal to that Court against conviction be allowed". In view of the concession made by the respondent that, in the absence of evidence obtained by use of the listening device, the appellant's conviction cannot be sustained, the conviction must be quashed and a new trial ordered.