Grollo v Macauley

[1994] HCATrans 29

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Melbourne     No M78 of 1994

B e t w e e n -

BRUNO GROLLO

Applicant

and

PETER MACAULEY, Commissioner of the Australian Federal Police

First Respondent

TELSTRA CORPORATION LIMITED

Second Respondent

DIRECTOR OF PUBLIC PROSECUTIONS (Commonwealth)

Third Respondent

COMMISSIONER OF TAXATION

Fourth Respondent

COMMONWEALTH OF AUSTRALIA

Fifth Respondent

Application for removal of cause
under section 40 of the Judiciary
Act

MASON CJ
BRENNAN J
DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 SEPTEMBER 1994, AT 9.35 AM

Copyright in the High Court of Australia

_______________

MR R. MERKEL, QC:   If the Court pleases, I appear, with my learned friend, MR J. BEACH, for the applicant in this matter.  (instructed by Arnold Bloch Leibler)

MR G.T. PAGONE:   If the Court pleases, I appear on behalf of the first and third respondents.  (instructed by Director of Public Prosecutions(Cth))

MR G. GRIFFITH, QC, Solicitor‑General for the Commonwealth:   If the Court pleases, I appear for Commonwealth in this matter.  (instructed by the Australian Government Solicitor) 

It may assist the Court if I indicate that the Commonwealth’s view is that this case is in appropriate form for the issue to be determined by this Court.  The Commonwealth regards it as an important issue and believes there are particular reasons why it is inappropriate that the Federal Court should hear the matter.

MASON CJ:   Yes, thank you.  The Deputy Registrar certified that she has been informed by the second‑named respondent, describing itself as Telecom Australia, that it will not appear and that it will abide by any order of the Court save as to costs.  Mr Merkel.

MR MERKEL:   If the Court pleases, could I hand up to Your Honours a short summary of argument.

MASON CJ:   The Commissioner of Taxation has been joined as a fourth respondent.  There is no appearance for the Commissioner.

MR MERKEL:   I think, Your Honours, the position is that the Commissioner is still a nominal party, but no relief is sought, and the Commissioner is only a nominal party, because the result will not affect the Commissioner.  I think probably in due course the Commissioner should be removed as a party. 

MASON CJ:   Mr Merkel, you might direct your energies to persuading us that there is a question worthy of the attention of this Court.

BRENNAN J:   At this stage.

MASON CJ:   At this stage.

MR MERKEL:   Your Honours, the parties in the case stated have agreed on the facts which, I think, Justice Gaudron in Jones’ case had indicated were not before the Court in Hilton v Wells, and the question left open by Your Honour the Chief Justice and Justice Deane in Hilton v Wells and raised by Justice Gaudron in Jones’ case as to whether the conferral of powers under the Act in their old form and the exercise of those powers on judicial officers were incompatible with the discharge of their duties as judicial officers.

MASON CJ:   Did not the majority in Hilton v Wells express the view that there was no incompatibility?

MR MERKEL:   Their Honours did express that view, but we have a number of things to say about that.  Firstly, as was pointed out by Her Honour in Jones, that was not a live issue in the sense that there was no evidence before the Court, and that matter puts the present case in a very different form because there is a great deal of evidence to show how the court’s processes are involved and, we would submit, with respect, compromised by this particular function and the way it is carried out and the liaison that exists between the criminal law enforcement agencies and the Federal Court judiciary behind closed doors and in a way that public interest immunity is alleged to ensure it will never come to light.  So that there is a factual scenario which was not before the Court in Hilton v Wells, which Your Honour commented upon.

Secondly, as the whole of the Court in Jones’ case indicated, the Act has been amended very substantially since Hilton v Wells, which would make Hilton v Wells no longer binding authority on the issue ‑ ‑ ‑

MASON CJ:   Do the amendments strengthen the argument for incompatibility?

MR MERKEL:   They do, Your Honour.

MASON CJ:   In what way?

MR MERKEL:   Because the amendments do a number of things.  The first is that they were designed to remove the question of construction, which the court dealt with in Hilton v Wells, namely that ‑ ‑ ‑

MASON CJ:   Personae designatae

MR MERKEL:   Personae designatae.  But in doing so, they created, we would say, an even more problematic situation, because they created a situation where the executive arm of government is in a position, at its discretion and will, to appoint, or withdraw the appointment, or terminate the appointment, of the judiciary, based upon performance or any other factors.  In other words, the selection process, unfettered by any criteria whatsoever, we say, in effect, compromises the independence of the judiciary in a very real and substantial way. 

That was a situation which the Court did not consider at all in Hilton v Wells because ‑ ‑ ‑

DAWSON J:   But is not a personae designatae always able to be removed?  That is the nature of it.  It can be designated or undesignated.

MR MERKEL:   Your Honour, that may be so but when judges are appointed personae designatae, in respect of a particular function, such as a royal commission held in public, or when they perform functions which, by definition, will become public and able to be the subject of scrutiny, that may be a situation which is not incompatible with judicial office.

It is not suggested that any function, or all functions, are incompatible.  The problem in the present case is that the new Act goes even further.  Not only does it reserve to the Federal Government or the executive a discretionary right, which could be based upon the performance of judges, thereby compromising their independence, it involves the judiciary in a far wider range of offences and direct liaison, we would submit, with the law enforcement agencies.  It brings in the National Crime Authority.  It widens the range of offences, the subject of the exercise of the power, and we say that the material does demonstrate that the involvement really involves the judiciary, as Her Honour Justice Gaudron put it in Jones’ case, in activities that relate directly to the process of criminal investigation.

Now the problem with that is that it is all done in a wider way that before because of the range of offences and the range of potential applicants having been extended.  Secondly, it is all done through the court’s hierarchy and processes, using the registry; using duty judges, as part of the functioning of the court and yet, by this process of what His Honour Justice Dixon many years ago referred to as a distinction without differences, seeks to, in effect, say that because it is done through personae designatae, it does not raise the more fundamental issues.

Now, we say that the situation under the present statutory environment is a different one to that considered by the High Court in Hilton v Wells, and raises additional issues.  We would submit it is a question of public importance and we would say, Her Honour Justice Gaudron in Jones’ case raised the very reasons why, which we would, in substance, found our application upon in the present case.

MASON CJ:   Can I just ask you this question about incompatibility:  so far as the judges of the Federal Court are concerned, there is no real possibility, is there, or distinct possibility, that a judge of the Federal Court who issues a warrant under the Act, would be conducting a case as a trial judge in which evidence, obtained pursuant to that warrant, was tendered before him in his capacity as a primary or trial judge?

MR MERKEL:   Your Honour, that raises a problem adverted to in the case stated.  In fact, what happened in the present case is that the eligible judge who issued the warrant based upon very contentious facts, in fact then adjudicated not at trial on the issues, but adjudicated on applications involving the issues and was in a position where he had to do one of two things.  He could not disclose his involvement to the parties because of the secret ex parte nature of the function of the intercept warrant.  He sat and did not disclose and determined these issues. 

The alternative would be for him to have, again without notice to the parties, gone to the Chief Justice and said, “Look, I should not sit in this matter”.  But then that runs foul of a different principle, and that is that judges, appointed to hear a case, are as much under a duty to sit as to not sit, and both functions should be discharged in open court by reference to the parties being informed of the facts which should prevent a judge from dealing with a case.

Now, this process necessarily pushes the whole question of who will deal with cases behind closed doors, without the parties having any involvement or knowledge of the process.  Indeed, the present case throws up the problem starkly because the judge who issued the warrant, did, in fact, sit on three different applications without disclosing his involvement in the warrant.  Now, there were real grounds on each of those, one could have said, for saying that His Honour should not have sat but, by definition, that process can never come to light and will only ever come to light if the intercepted information is the subject of evidence which is proposed to be adduced by the Crown at a committal hearing, then to ensure admissibility of the material in evidence, the fact that it was a lawful intercept must be adduced in evidence and one will find that a particular judge issued a warrant. 

We say really we cannot put it stronger or higher than that put by Her Honour, and that was under the old Act, we way, where the functions were narrower and more circumscribed than they are under the present Act, and we would submit that these functions exercised under the umbrella, as is contended for by the DPP and the Commonwealth in the present case, of public interest immunity, ex parte and in secret, necessarily - and we would say for present purposes we do not have to succeed in the argument, but we say it is clearly arguable that they compromised the functioning of judges in judicial office, and the direct liaison ‑ I can put it even further ‑ between the Federal Police, the NCA, with the judges and the, in effect, shredding of material after the event, which is referred to in many cases as occurring, we say necessarily compromises the proper functioning of the judges in respect of their judicial functions in respect of those matters or associated matters.

MASON CJ:   Why should the matter not remain in the Federal Court at this time?

MR MERKEL:   Your Honour, there are a number of reasons.  We have set them out in our reasons for removal, but can I deal with what is set out in paragraph 4, which is the essential problem.  Your Honour, the Federal Court process, by which eligible judges are appointed, as we have indicated in the case stated, involved the Chief Justice in offering to each incoming judge the offer of accepting an appointment under the Act ‑ ‑ ‑

MASON CJ:   But could not a Full Court be constituted from judges who have not accepted appointment under the Act?

MR MERKEL:   Well, the problem lies there, I think, Your Honour, that some ‑ I think it is 30 out of 35 judges of the court ‑ ‑ ‑

MASON CJ:   You only need three judges for a Full Court.

MR MERKEL:   That is right, Your Honour, but the difficulty there is that the inference about the judges who have refused to accept is the obvious inference that they have refused accept because they will have formed the view like those that do accept, of incompatibility, compared to compatibility, and we would say that ‑ ‑ ‑

MASON CJ:   Well, that would favour you, would it not?

MR MERKEL:   Yes, it would, Your Honour, but we do note that my learned friend, the Solicitor, has indicated that he shares the same view as us, that given those circumstances it is somewhat inappropriate either way for the Federal Court judges to, in effect, sit in judgment on what has been treated by the court as compatible and consistent with their discharge of judicial functions.

There is a second problem, Your Honour, which is dealt  ‑ ‑ ‑

BRENNAN J:   On the other hand, it may be said that they are more alive and sensitive to the difficulties that may arise in the continuance of the present situation.  They may be able to give a very helpful analysis of the problem and determine some issues which might be helpful in understanding the true nature of any embarrassment, or lack of embarrassment, that there may be.

MR MERKEL:   Well, Your Honour, I appreciate that.  It is for that reason, Your Honour, that the parties endeavoured to co‑operate in the case stated to set out as many facts as were able to be made available but, even then, one ran into what was the second problem with the Federal Court dealing with it:  that the way in which the matter has been dealt with and, indeed, the disclosure in the case stated, was the subject of quite detailed involvement, we understand, of officers of the court, including a judicial officer of the court, concerning the extent of disclosure that should be made as to who are the eligible judges and, reverting back to what Your Honour the Chief Justice raised with me, we understand, and it comes to us second‑hand - my learned friend, the Solicitor, is in a better position to inform the Court first‑hand as to how this occurred.  I understand his instructors were in liaison with the Court.  But the confidential table which sets out the eligible judges, initially, was sought to have identification of the eligible judges, so that at least the matter that Your Honour raised with me about whether those that declined to accept office would constitute the Full Bench, but we understand there is some problem of confidentiality, and identification of the judges who have accepted appointment as eligible judges and those who have rejected it is, itself, unknown, and a matter of confidence within the court.

So that the case stated itself, involved questions of policy as far as the court was concerned, as to what would or would not be disclosed,  And that is the point raised in paragraph 4(b).  The situation of the court’s involvement in the very process has created a difficulty with the court hearing it.  So, we would submit ‑ ‑ ‑

DAWSON J:   Mr Merkel, are there any other proceedings, civil or criminal, that await the determination of this issue or of being delayed whilst this issue is being determined?

MR MERKEL:   Your Honour, there are no proceedings that are being delayed.  The offences, the subject of the present case, are due to be heard ‑ they are coming before the County Court later this month, when Mr Grollo is to be arraigned, and that Court will be working out a timetable as to how that matter is to proceed. 

DAWSON J:  Will it be an issue that it ought not to proceed whilst these court proceedings are on foot?

MR MERKEL:   Well, it depends, Your Honour, on what the court’s timetable will be.  At this stage one cannot answer that, Your Honour.  We do not believe, at this stage, that there should be a problem in that regard, but there may be.  We cannot really take it any further than that.  It depends on what program the Court arrives at.  But we do not see this as giving rise to that problem. 

There are a number of other matters which I would briefly mention, if I might, Your Honours.  The annual reports concerning the Act indicate, in the last year reported on, there were some 533 applications, and we say that there is a matter of some importance in the resolution of this issue.  If our argument be a good one, we say it is one that ought to be resolved with some expedition. 

The only other matters we wish to raise is we say, in addition to the importance of the issue ‑ we would, with respect, say that this matter, of course, started in the High Court and the reason why it was remitted by His Honour Justice Deane was, at the time it came before the Court, there were disputed, or unknown, unascertained facts.  In fact, the pleadings in the special case have ‑ ‑ ‑

MASON CJ:   But there were other issues involved at that stage.  That was a matter that was of concern to His Honour.

MR MERKEL:   Yes, two other issues and factual uncertainty.  Both the other issues and the factual uncertainty have been removed, so it is now in a position which, we would say, had it been in when it was before His Honour, would not have resulted in a remission, and this Court would have determined the issue at that stage, and we say that the parties, having endeavoured to achieve that in that way, it is appropriate that the matter be removed back for determination in this Court.

I should say the constitutional issue is now really the only issue left in the matter.  So it is, with respect, for those reasons, we would submit, that it is appropriate for a removal order to be made as sought.

MASON CJ:   Mr Pagone.

MR PAGONE:   Your Honours, the position of the DPP is, in effect, that we are concerned about the prospect of the arraignment being delayed in any way as a result of this application but, save for that, I can certainly put my submissions to the Court that it is not an appropriate matter for the Court to consider.

DAWSON J:   If you are concerned about delay, in one sense, it might be better to get this over as quickly as possible.

MR PAGONE:   Exactly, Your Honour, yes.  Although I suspect that the reality of this Court’s business is such that this matter will not come on for hearing for some time.  In any event, Your Honour, I do not put any

submission that it is not an appropriate matter for the Court to take up.  If Your Honours please.

MASON CJ:   Mr Solicitor.

MR GRIFFITH:   Your Honour, the Commonwealth is concerned - the matters referred to generally, under paragraph 4 of my learned friend’s hand‑up to the Court.  However, the Attorney does not desire to remove, as of right, and leaves it to the Court to take a view as to what is appropriate. 

There is something to be said, Your Honour, that if the matter stays where it is, there will probably be more delay than if it is removed and then heard in one shot by the Court.

MASON CJ:   Yes, thank you. 

There will be an order for removal, as sought.

AT 9.57 AM THE MATTER WAS ADJOURNED SINE DIE