Grollo v Palmer

[1995] HCA 26

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DEANE, DAWSON, TOOHEY, McHUGH AND GUMMOW JJ

BRUNO GROLLO v MICHAEL JOHN PALMER, COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE AND OTHERS

(1995) 131 ALR 225

21 September 1995

Headnote

Hearing

CANBERRA, 30 and 31 May 1995
#DATE 21:9:1995



Counsel for the Applicant: A.R. Castan QC, R. Merkel QC
and J.B.R. Beach



Solicitors for the Applicant: Arnold Bloch Leibler


Counsel for the Respondents: M.S. Weinberg QC and
G.T. Pagone
(First and Third Respondents)



Solicitors for the Respondents: M. Rozenes QC, Director of
Public Prosecutions
(Commonwealth)



G. Griffith QC, Solicitor-General for the Commonwealth/C.R. Staker intervening for the Attorney-General of the Commonwealth instructed by the Australian Government Solicitor.

Orders

1. Answer the question reserved in the Special Case stated as
follows:
No.

2. Remit the matter to the Federal Court of Australia to hear and
determine the proceedings in accordance with the answer given to
the question reserved.

3. The applicant to pay the respondents' costs of the Special Case
and of the hearing and determination of the question reserved.

Decisions

BRENNAN CJ, DEANE, DAWSON AND TOOHEY JJ The applicant, Bruno Grollo, commenced proceedings in the Federal Court of Australia claiming a declaration of invalidity of the provisions of the Telecommunications (Interception) Act 1979 (Cth) ("the Act") and injunctive relief relating to the use which might be made of information allegedly acquired by intercepting telephone calls pursuant to a warrant issued under the challenged provisions of the Act. A case was stated for the consideration of the Full Court of the Federal Court stating for that Court's determination the question:

"Are sections 6D and 6H and Divisions 3 and 4 of Part VI of the Act invalid as being beyond the power of the Parliament of the Commonwealth of Australia?"

The proceedings have been removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth). The question reserved by the stated case now falls for determination.




The provisions of the Act
2. Section 7(1) of the Act prohibits the interception of a communication passing over a telecommunications system. A contravention of s 7(1) is an offence punishable by a fine or imprisonment: s 105(1) and (2). However, s 7(2)(b) excludes from the application of s 7(1) "the interception of a communication under a warrant". The issue of warrants by various authorities is provided for in Pts III, IV and VI of the Act.


3. Part III authorises the Commonwealth Attorney-General (s 9) and the Director-General of Security (s 10) to issue warrants for interception by the Australian Security Intelligence Organisation in respect of "activities prejudicial to security", a phrase defined in s 5. Part IV relates to the issue of warrants authorising the Australian Federal Police ("the AFP") to intercept telegrams. Part VI relates to the issue of warrants authorising "an agency"(1) (that is, the AFP, the National Crime Authority or certain State authorities) to intercept telecommunications. Divisions 3 (ss 39 to 44) and 4 (ss 45 to 61A) of Pt VI relate respectively to applications for interception warrants and the issue of interception warrants.


4. Section 39(1) authorises an agency to apply to an "eligible Judge" for the issue of an interception warrant. The application must be in writing unless, because of urgent circumstances, it is made by telephone by the chief officer of the agency or a person authorised to make a telephone application(2). An application for an interception warrant may include a request for authority to enter on premises for the installation of necessary interception equipment(3). An application for an interception warrant must be supported by information provided either by affidavit or, in the case of a telephone application, orally or in writing as the Judge directs(4). In the case of a telephone application, the information given to the Judge must include particulars of the urgent circumstances warranting the making of the application by telephone(5). Section 45 provides as follows:

" Where an agency applies to an eligible Judge for a warrant in respect of a telecommunications service and the Judge is satisfied, on the basis of the information given to the Judge under this Part in connection with the application, that:

(a) Division 3 has been complied with in relation to the application;

(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone;

(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;

(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved; and

(e) having regard to:

(i) the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;

(ii) how much of the information referred to in paragraph (d) would be likely to be obtained by such methods; and

(iii) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason;
some or all of that information cannot appropriately be obtained
by such methods;

the Judge may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from the service."

A "class 1 offence" is defined to include murder, kidnapping and serious drug offences(6). Certain serious offences punishable by imprisonment for maximum periods of at least 7 years are defined as class 2 offences(7). The issue of an interception warrant to assist in connection with an investigation into a class 2 offence is provided for by s 46. Its provisions correspond with those in s 45 except that the eligible Judge to whom the application is made must have regard only to the matters referred to in s 46(2), namely:

" (2) The matters to which the Judge shall have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1);

(b) the gravity of the conduct constituting the offence or offences being investigated;

(c) how much the information referred to in paragraph (1) (d) would be likely to assist in connection with the investigation by the agency of the offence or offences;

(d) to what extent methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;

(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and

(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason."

The reference to a "particular person" in ss 45 and 46 is expounded by s 6H, which provides:

" For the purposes of this Act, an application by an agency to a Judge for a warrant in respect of a telecommunications service relates to a particular person if, and only if, information has been, or is proposed to be, given to the Judge under Part VI, in connection with the application, in order to satisfy the Judge, in relation to the person, of the matters referred to in paragraphs 45(c) and (d) or 46(1)(c) and (d)."


5. The power to issue an interception warrant is thus conferred on a person who is, for the purposes of the Act, an "eligible Judge". That term is defined by s 6D:

" (1) In this Act, unless the contrary intention appears:

'eligible Judge' means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force;

'Judge' means a person who is a Judge of a court created by the Parliament.
(2) A Judge may by writing consent to be nominated by the Minister under subsection (3).
(3) The Minister may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.
(4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court."

The practice followed in appointing Judges of the Federal Court as eligible Judges under s 6D is described in the special case. The Chief Justice of the Federal Court invites each newly appointed Judge to consent to becoming an eligible Judge. If the Judge wishes to, the Judge notifies his or her consent in writing to the Chief Justice who forwards this consent to the Attorney-General's Department. If the Attorney-General, as the Minister administering the Act, makes a declaration under s 6D(3), this is communicated to the Chief Justice and the Judge concerned. As at 19 May 1994, 30 of the 35 Judges of the Federal Court (excluding the Chief Justice) were eligible Judges. Their identities as eligible Judges are not disclosed to the public(8). No extra remuneration is provided on account of being an eligible Judge. The Act makes no provision for the revocation or cancellation of an appointment as an eligible Judge. Presumably, upon ceasing to be a Federal Judge, the appointment lapses.


6. The common procedure in each State for obtaining an interception warrant is for an appointment to be made with an eligible Judge in his or her chambers, and for the agency to attend with the application under s 39. In New South Wales, the appointment is arranged through the Deputy Executive Assistant of the Federal Court; in Queensland, Tasmania, Victoria and the Northern Territory, the appointment is arranged by the Court registry; in South Australia and Western Australia the appointment is arranged directly with the List Clerk or the Associate of an eligible Judge. At no stage is the application or the warrant filed with the Court registry and, except in South Australia where a copy may be kept in security, all documents relating to the matter are retained or destroyed by the agency. Although not stated in the special case, s 50(2) requires the Judge to keep a copy of a warrant granted on a telephone application.


7. The Judge issues an interception warrant in the prescribed form(9). The Judge may "specify conditions or restrictions relating to interceptions"(10) and may prescribe its operation for up to 90 days(11). Upon expiration of the warrant, no extension is possible(12). If required, a new warrant may be sought by an agency(13). The warrant must also briefly state short particulars of each serious offence being investigated(14).


8. Upon the issue of a warrant, certain notices must be given before the interception is authorised. First, where the interception is of a telecommunications system operated by a carrier, notice must be given to the Managing Director of the carrier and the interception must occur as a result of action taken by an employee of the carrier(15). Secondly, where the warrant is obtained by an agency other than the AFP, the warrant must be notified to and received by or on behalf of the AFP's Commissioner of Police(16). The authority conferred by an interception warrant may be exercised only by approved members of the AFP(17).




The grounds of challenge to the validity of the Act
9. The applicant's counsel based their submissions on alternative propositions as to the nature of the power to issue interception warrants and as to the repository of the power to do so. If the power be regarded as administrative in nature and eligible Judges be regarded as personae designatae, the provisions of the Act purporting to confer the power on those Judges are said to be invalid because the power is such that its exercise is incompatible with judicial functions. Alternatively, the provisions which permit the appointment of all Federal Court Judges and which have in fact permitted the appointment of a substantial majority of the Judges of that Court to be "eligible Judges" are said to be merely a device which, in substance, vests non-judicial power in the Judges of that Court. That is said to be contrary to the Boilermakers(18) exposition of the constitutional imperative of the separation of powers.


10. If, however, the power to issue an interception warrant be regarded as judicial in nature, a further submission challenges the validity of the provisions which confer the power not on a Court but on eligible Judges as personae designatae. The different, and inconsistent, strands of argument require a determination of two issues: first, whether the power to issue an interception warrant is judicial or non-judicial in nature; second, whether the Act purports to confer that power on eligible Judges as personae designatae consistently with the Constitution.




The nature of the power to issue interception warrants
11. Historically, the power to issue warrants to enter, search and seize - that is, warrants which authorise what would otherwise be a trespass to land or to goods - has been vested only in judicial officers or justices of the peace.


12. At first, the common law conferred no authority on justices of the peace to issue warrants to enter and search for stolen goods(19) but an authority in justices to issue such warrants was ultimately admitted(20). Although general warrants to search were illegal(21), warrants to enter and search for stolen goods in particular premises were issued by justices of the peace on oath of a felony committed. Those warrants were considered to be "judicial acts"(22) although they were not performed in court(23). As warrants were issued on sworn information, certiorari lay to review the sufficiency of the information to ground the issue of the warrant(24). Under modern procedure, judicial review is available to determine whether there is sufficient material placed before the issuing justice to enliven the power to issue the warrant(25). The power to issue a warrant to enter, search and seize must be exercised judicially(26). But these indicia do not stamp the power to issue a search warrant with the character of the judicial power of the Commonwealth(27). The issuing of a warrant can be described as a judicial act but not in the sense of an adjudication to determine the rights of parties(28). Although judicial review is available to review an exercise of the power to issue a warrant, it is available whether the power be classified as judicial or as administrative in nature(29). And although the duty to exercise the power to issue a warrant must be exercised judicially, that means only that the power must be exercised without bias and fairly weighing the competing considerations of privacy and private property on the one hand and law enforcement on the other(30). In Love v Attorney-General (NSW), this Court held that the power conferred by a State law on the Supreme Court of New South Wales to issue a warrant authorising the use of a listening device was an administrative not a judicial power, though it was a power to be exercised judicially(31). Nor was the act of exercising the power a judicial act in the sense of an adjudication to determine the rights of parties(32). Love's Case was followed in Coco v The Queen(33). In Hilton v Wells(34), where a challenge was made to the validity of the vesting in Judges of the Federal Court of the power to issue a warrant under s 20 of the Act (as it stood prior to the 1987 Amendment(35)), it was common ground that the power is not part of the judicial power of the Commonwealth(36). The submission that the power conferred by ss 45 and 46 is part of the judicial power of the Commonwealth should be rejected.




The character of the repositories of the power
13. In Hilton v Wells, the only question for decision(37) was whether the Act purported to confer non-judicial power on the Federal Court contrary to the doctrine in the Boilermakers' Case(38). The divergence of opinion on this question reflected a difference in the interpretations placed on the provisions of the Act as they stood before the 1987 Amendment(39). The power to issue warrants under s 20 was vested in "a Judge", a term defined by s 18 (as it then stood) to mean a Judge of the Federal Court or of the Supreme Court of the Australian Capital Territory, or a Judge of the Supreme Court of a State or of the Northern Territory "in respect of whom an appropriate arrangement" was applicable. The majority (Gibbs CJ, Wilson and Dawson JJ) said(40):

"Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to 'judge' rather than to 'court' indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it. Even if it were to be assumed that the fact that the power conferred by s 20 is conferred on 'a Judge' gives rise to a prima facie presumption that it is conferred on the judge as such, and that he will determine it as a member of the court to which he belongs, we consider that there are sufficient indications in the statute to rebut that presumption."

Their Honours considered that when the Act referred to Judges of the Supreme Courts "in respect of whom an appropriate arrangement" had been made, the Parliament was intending to confer power on individual Judges. In the case of Judges of the Federal Court, the majority held it was "unlikely that the Parliament intended in other cases to refer to the judge as such and to confer power on the court". Further, as the nature of the power conferred by s 20 is "purely administrative and not incidental to the exercise of judicial power", their Honours thought it likely that Parliament intended the power to be exercised by a Judge as a designated person. Finally, as the Judge made no order as such and nothing that he did was enforced under the Federal Court of Australia Act 1976 (Cth), the power was vested in a Judge as persona designata. Mason and Deane JJ, on the other hand, were of the view that the Act vested power in the Federal Court Judges as such. The power was conferred upon all Judges of the Federal Court indiscriminately(41). Mason and Deane JJ construed the Act in accordance with the principle on which the Court had acted in Medical Board of Victoria v Meyer(42) and Aston v Irvine(43) and held that the power was conferred on every Judge as a member of the court. Their Honours accepted that a non-judicial power could be vested in a Judge as a designated person but, in their Honours' view(44) -

"to enable such a conclusion to be reached it must appear that in the performance of the function entrusted to him the judge is intended to act personally, detached from the court of which he is a member (cf Queen Victoria Memorial Hospital v Thornton(45)), so that the reference to the judge's judicial office is then seen not as a statement of the character in which the function is to be exercised, but as a qualification of his becoming a repository of the function".

By repealing s 18 and inserting s 6D in 1987, the Parliament eliminated the indiscriminate conferral of power on all Judges of the Federal Court and thereby sought to overcome a factor which Mason and Deane JJ had regarded as a source of invalidity. The 1987 Amendment also repealed s 20 and inserted in its place a number of provisions which conferred on an "eligible Judge" (as defined by s 6D) powers to issue warrants authorising, inter alia, interceptions of communications(46). Those powers are now expressed to be conferred not on all Judges of the Federal Court but only on "a person who is" a Judge of a court created by the Parliament(47) and who has consented to be nominated as an eligible Judge(48) and who has been declared by the Minister to be an eligible Judge(49). The Act as it now stands, in comparison with the Act as it stood when considered in Hilton v Wells, contains even clearer indicia showing that the power to issue interception warrants is conferred on Judges as designated persons and not on the courts of which eligible Judges are members. In Jones v The Commonwealth(50), this Court refused to reconsider its decision in Hilton v Wells, saying:

"The power to overrule a previous decision should be exercised with great caution. Continuity and coherence in the law demand that in this Court the principle of stare decisis should ordinarily be applied. Moreover Hilton v Wells is a very recent decision."

Jones v The Commonwealth related to the Act as it stood before the 1987 Amendment. As the Parliament in enacting the 1987 Amendment sought to overcome some of the objections raised by the minority to the interpretation of the Act expressed by the majority in Hilton v Wells, Parliament's intention is now too clear to mistake. The power is conferred on each eligible Judge as a designated person, "detached from the court of which he (or she) is a member".




Incompatibility of function
14. In Hilton v Wells, Mason and Deane JJ observed(51):

"The ability of Parliament to confer non-judicial power on a judge of a Ch III court, as distinct from the court to which he belongs, has the potential, if it is not kept within precise limits, to undermine the doctrine in the Boilermakers' Case(52)."

The applicant submits that the important principle of separation of powers expounded in Boilermakers should not be undermined by acceptance of the power of the legislative or the executive branches of government to repose non-judicial power in individual Judges when that power cannot be reposed in the courts they constitute. The distinction which the conception of persona designata draws between Judges and the courts to which they are appointed is said to be too fine(53) and specious(54) to be supported. The distinction (so the argument runs) is formal not substantial and it is apt to convert the principle of separation of powers into a mockery(55). In practice, the system of "eligible" Judges has resulted in the conferring of power to issue warrants on 30 of the 35 Judges of the Federal Court; the warrants are signed by the Judge as to indicate the Judge's judicial status and the Judges have, in respect of that function, a statutory immunity(56) which is "the same protection and immunity as a Justice of the High Court ... in relation to proceedings in the High Court". The conception of persona designata is said to serve as a charade concealing the reality that a non-judicial power has been conferred on the Judges of a Ch III court. It is submitted that the conception of persona designata should be abolished to maintain the integrity of the Boilermakers principle. In Canada, Laskin CJC(57) expressed agreement with the proposition that "the whole persona designata conception could be scrapped without the slightest inconvenience or the least distortion of legal principles".


15. The submission that this Court should follow that lead must be rejected. The conception of persona designata has been invoked when the vesting of a non-judicial power, which could not be vested in a court consistently with Ch III of the Constitution, has been supported as a vesting of the power in individual Judges detached from the courts they constitute(58). But the conception of "persona designata" is not always invoked in the same sense. Sometimes it is invoked as an aid to, or a descriptive expression in, statutory interpretation, connoting an individual Judge detached from the court to which the Judge is appointed. It is in this sense that the term is used when the question is whether the legislature has intended to vest the power in the court or in individual Judges detached from the court. It was in that sense that the term was relevant to the question for determination in Hilton v Wells(59) and it was in that sense that the usefulness of the term was disparaged by Laskin CJC. Sometimes the term is invoked as a shorthand expression of a limitation on the principle of Boilermakers, acknowledging that there is no necessary inconsistency with the separation of powers mandated by Ch III of the Constitution if non-judicial power is vested in individual Judges detached from the court they constitute. It is in the latter sense that the term falls for consideration in this case. It was in reference to such a constitutional principle that Mason and Deane JJ in Hilton v Wells(60) quoted Cardozo CJ speaking of the separation of powers under the Constitution of the State of New York in In re Richardson(61):

"From the beginnings of our history, the principle has been enforced that there is no inherent power in Executive or Legislature to charge the judiciary with administrative functions except when reasonably incidental to the fulfilment of judicial duties. ... The exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers. Elasticity has not meant that what is of the essence of the judicial function may be destroyed".

Accepting this approach, Mason and Deane JJ imposed two qualifications on any exception to the principle that the judiciary should not be charged with the exercise of non-judicial power when the exercise of the power is not reasonably incidental to the fulfilment of judicial duties(62):

" In the United States, as in Australia, it has been recognized that non-judicial functions may be entrusted to judges personally and not in their capacity as judicial officers, but, it seems, on the footing that a duty of acceptance cannot be imposed: In re Richardson(63). This recognition is no doubt subject to the general qualification that what is entrusted to a judge in his individual capacity is not inconsistent with the essence of the judicial function and the proper performance by the judiciary of its responsibilities for the exercise of judicial power."

The majority judgment contains a passage(64) to the same effect:

"If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers' Case would doubtless render the legislation invalid. But the exercise of the functions conferred by s 20 would not have that result. The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers."


16. The conditions thus expressed on the power to confer non-judicial functions on Judges as designated persons are twofold: first, no non-judicial function that is not incidental to a judicial function can be conferred without the Judge's consent; and, second, no function can be conferred that is incompatible either with the Judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power ("the incompatibility condition"). These conditions accord with the view of the Supreme Court of the United States in Mistretta v United States(65) where the Court said:

" This is not to suggest, of course, that every kind of extrajudicial service under every circumstance necessarily accords with the Constitution. That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial, capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch."


17. The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a Judge that the further performance of substantial judicial functions by that Judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the Judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual Judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. So much is implied from the separation of powers mandated by Chs I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power.


18. The applicant submits that judicial integrity is compromised and public confidence in the exercise of the jurisdiction of the Federal Court is prejudiced by the conferral of power on Judges of the Federal Court to issue interception warrants. First, it is said that an obligation - either statutory(66) or common law(67) - not to disclose the information on which the Judge may have decided to issue an interception warrant compromises the Judge's duty to exercise the jurisdiction of the Court(68). If a Judge cannot reveal the information which was given to him or her on an application for the issue of an interception warrant and the Judge is subsequently asked to exercise jurisdiction in a matter arising from the issue of the warrant or relating to the information given extra-curially, no disclosure can be made to the parties of the Judge's prior involvement in, or knowledge of, the matter. Bias might be apprehended in any case in which the validity of an interception warrant is in issue by reason of the large proportion of Federal Court Judges who are eligible Judges and who, if not involved in the issue of the warrant in the particular case, would have formed a view about the manner in which the power to issue an interception warrant should be exercised. These arguments are "troubling" but, as with the courts in the United States(69), the argument can be met by the adoption of an appropriate practice. A Judge who has issued a warrant in a particular matter can ensure that he or she does not sit on any case to which the warrant relates. That is the practice followed when a Judge has received information extra-curially which might prove embarrassing to the impartial hearing and determination of a case. Of course, the risk of such a situation arising and, in particular, of a Judge discovering late in the day that he or she had issued a warrant on the basis of which evidence is to be tendered, is increased when there are but few Judges appointed to a Court. In the Australian Capital Territory, for example, it would be prudent for a resident Judge of the Supreme Court of the Australian Capital Territory not to accept an appointment. But that is a matter for individual Judges. However, as in Mistretta(70):

" We are somewhat more troubled by (the) argument that the Judiciary's entanglement in the political work of the Commission undermines public confidence in the disinterestedness of the Judicial Branch. ... The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action."


19. If the issuing of interception warrants were reasonably to be regarded as a judicial participation in criminal investigation, it would be a function which could not be conferred on a Judge without compromising the judiciary's essential separation from the executive government. The judicial method of deciding questions in controversy has no application in exercising the power to issue an interception warrant. Not only is the application for an interception warrant made ex parte; the very issue of a warrant and the identity of the Judge who issued it are not disclosed. Unlike a warrant to enter, search and seize, its execution may go undetected by the person against whom or against whose interests the warrant is executed. Unlike a warrant to enter, search and seize, there is no return made on the execution of the warrant which permits a determination of its lawfulness, a review of its due execution and a disposition of the fruit of the execution. Because of the secrecy necessarily involved in applying for and obtaining the issue of an interception warrant, no records are kept which would permit judicial review of a Judge's decision to issue a warrant(71). Nor are reasons given for such a decision. The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information. Understandably a view might be taken that this is no business for a Judge to be involved in(72), much less the large majority of the Judges of the Federal Court.


20. Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today's continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law's protection of privacy(73) and property (both real and personal), be authorised to control the official interception of communications. In other words, the professional experience and cast of mind of a Judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. It is an eligible Judge's function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible Judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.


21. In other countries the same view has been taken of the desirability, if not the necessity, for judicial issuing of a warrant to authorise secret surveillance of suspects in criminal cases. In such cases, the European Court of Human Rights said in Klass v Federal Republic of Germany(74):

" The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge."

In the United States, the Fourth Amendment protection "against unreasonable searches and seizures" has been held to require prior judicial warrant authorising electronic surveillance(75). In United States v United States District Court for the Eastern District of Michigan, the Court said(76):

"The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised."

The Court used the word "judicial" "to connote the traditional Fourth Amendment requirement of a neutral and detached magistrate".


22. In Canada, Estey J referred to "the vitality of the role of the court in the legislative plan as the guardian of the public interest" when discussing the legislation which authorised interception of communications(77). The statute law of New Zealand provides for judicial warrants for the interception of private communications(78). So do the laws of most of the Australian States and Territories(79). The function conferred on Judges of the Federal Court under the Act, being similar in nature to the function conferred on Judges of the Federal Court under the Act prior to the 1987 Amendment, "is not incompatible with their status and independence or inconsistent with the exercise of their judicial power". Nor is their present function inconsistent with the maintenance of public confidence in the discharge by the judiciary of its responsibilities in the exercise of the judicial power of the Commonwealth.


23. Clearly views may differ as to the desirability of Judges being involved in the issue of interception warrants. But the issue before the Court is one of the validity of legislation. Relevantly, the legislation is not invalid unless what we have referred to as the incompatibility condition precludes the vesting of the power to issue interception warrants. For the reasons given earlier, that is not the case. The challenged provisions of the Act are valid and the question reserved by the case stated should therefore be answered: No.


24. The proceedings No VG386 of 1993 that were removed from the Federal Court into this Court should now be remitted to the Federal Court to hear and determine those proceedings in accordance with the answer to the question reserved given in this judgment.


McHUGH J The question in this case stated is whether those provisions of the Telecommunications (Interception) Act 1979 (Cth) ("the Act") that empower persons who are judges of federal courts to issue warrants authorising the interception of telephone communications are contrary to the Constitution and invalid.


2. In my opinion, in so far as the powers granted by those provisions authorise persons who are judges of federal courts to issue warrants, they are contrary to the Constitution and invalid. The reason is that the exercise of administrative power that is involved in authorising the issue of those warrants is incompatible with the exercise of the judicial functions vested in persons who are judges of a federal court.




Factual background
3. Since about June 1992, members of the Australian Federal Police ("the AFP") have carried out investigations into alleged criminal offences by the applicant. On or about 2 June 1993, a member or members of the AFP applied under s 39 of the Act for a warrant authorising the interception of a mobile telephone service registered in the name of A D Flanagan. Heerey J, a judge of the Federal Court of Australia who was an "eligible Judge" within the meaning of the Act, heard the application. His Honour authorised the issue of a warrant. On a number of occasions between June and August 1993, conversations made over the service were intercepted and recorded. They included conversations involving the applicant.


4. In August 1993, members of the AFP arrested and charged the applicant with a number of offences against the Crimes Act 1914 (Cth). Subsequently, his solicitors sought copies of the telephone interception warrants from the third respondent, the Commonwealth Director of Public Prosecutions. The Director refused to supply copies. Later, the applicant commenced proceedings in this Court, which were remitted to the Federal Court, seeking, inter alia, a declaration that the provisions of the Act giving power to a judge of the Federal Court to authorise the issue of interception warrants were unconstitutional and ultra vires.


5. Ultimately, the applicant obtained copies of the warrants and details of the relevant telephone interceptions in the course of committal proceedings brought against him for alleged breaches of the Crimes Act. These and other documents form part of a Special Case stated by Jenkinson J to a Full Court of the Federal Court on 23 August 1994. The question to be answered in the stated case is:

"Are sections 6D and 6H and Divisions 3 and 4 of Part VI of the Act invalid as being beyond the power of the Parliament of the Commonwealth of Australia?"


6. On 16 September 1994, this Court ordered the removal of the Federal Court proceedings, including the Special Case, into the High Court.




The Act
7. Section 7 of the Act prohibits the interception of communications passing over a telecommunications system. Excluded from this prohibition is the interception of communications pursuant to a warrant. Relevant to these proceedings is an exclusion that allows the issuing of warrants to members of the AFP, the National Crime Authority and certain State agencies. For the purposes of the Act, each of these bodies is referred to as an "agency". An application for a warrant is made to "an eligible Judge" (s 39). Section 6D defines "eligible Judge" as follows:

"Judges
6D (1) In this Act, unless the contrary intention appears:

'eligible Judge' means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force;

'Judge' means a person who is a Judge of a court created by the Parliament.
(2) A Judge may by writing consent to be nominated by the Minister under subsection (3).
(3) The Minister may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.
(4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court."


8. An agency may apply in writing or, in certain circumstances, by telephone for a warrant (s 40). If the application is in writing, it must be accompanied by an affidavit, the contents of which are prescribed by s 42. The eligible judge may require the applicant for a warrant to provide further information (s 44).


9. Sections 45 and 46 provide the framework for making a decision upon an application for a warrant. They enact:

"Issue of warrant in relation to class 1 offence
45 Where an agency applies to an eligible Judge for a warrant in respect of a telecommunications service and the Judge is satisfied, on the basis of the information given to the Judge under this Part in connection with the application, that:
(a) Division 3 (which relates to the making of applications) has been complied with in relation to the application;
(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone;
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 1 offence, or class 1 offences, in which the person is involved; and
(e) having regard to:

(i) the extent to which methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;

(ii) how much of the information referred to in paragraph (d) would be likely to be obtained by such methods; and

(iii) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason;
some or all of that information cannot appropriately be obtained by
such methods;

the Judge may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from the service.

Issue of warrant in relation to class 2 offence

46 (1) Where an agency applies to an eligible Judge for a warrant in respect of a telecommunications service and the Judge is satisfied, on the basis of the information given to the Judge under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;
(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone;
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service;
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 2 offence, or class 2 offences, in which the person is involved; and
(e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge should issue a warrant authorising such communications to be intercepted;

the Judge may, in his or her discretion, issue such a warrant.
(2) The matters to which the Judge shall have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1);
(b) the gravity of the conduct constituting the offence or offences being investigated;
(c) how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences;
(d) to what extent methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency;
(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason."


10. Section 5 defines class 1 offences to include offences such as murder, kidnapping or narcotic offences. Class 2 offences involve offences punishable by at least seven years imprisonment where the offence involves loss of life or a serious risk of loss of life, serious personal injury, serious damage to property endangering the safety of a person, trafficking in narcotic drugs, serious fraud or serious loss to the revenue of the Commonwealth or a State.




Hilton v Wells and persona designata
11. The relevant terms of the Act are the result of amendments made in 1987(80) after the decision of this Court in Hilton v Wells(81) where the Court held that the then s 20 of the Act was not beyond power of the Parliament of the Commonwealth of Australia. Section 20 was the equivalent of the current ss 39-46 and concerned applications to a judge for an interception warrant. Under the pre-amendment scheme, an application could be made to any judge of the Federal Court. The 1987 amendments altered that position. Under the Act, a judge must now consent to being nominated as an "eligible Judge" by the Attorney-General. If the judge does so, the Attorney-General may declare that he or she is so nominated. As at 19 May 1994, 30 of the 35 judges of the Federal Court had consented to be, and had been, nominated as eligible judges.


12. The reasons for the 1987 amendments are apparent from concerns expressed in the judgments in Hilton v Wells. The principal issue in that case was whether the reference to "a Judge of the Federal Court of Australia" in the Act was to a judge qua judge or to a judge as persona designata. In Hilton(82), the applicant submitted that "(t)he doctrine of persona designata cannot apply where a statutory power is added to the powers belonging to a judge and is made exercisable by virtue of the very character as a judge". Gibbs CJ, Wilson and Dawson JJ held that s 20 was valid.



13. Their Honours said(83):

"Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to 'judge' rather than to 'court' indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it. Even if it were to be assumed that the fact that the power conferred by s 20 is conferred on 'a Judge' gives rise to a prima facie presumption that it is conferred on the judge as such, and that he will determine it as a member of the court to which he belongs, we consider that there are sufficient indications in the statute to rebut that presumption."


14. Mason and Deane JJ, however, held that established principle required a clear expression of legislative intention before a court would hold that functions entrusted to a judge of the Federal Court were exercisable as persona designata. In their Honours' view, to hold otherwise would undermine the principle of the Boilermakers' Case(84). They thought that there was "much to be said for the view" that even, without the decision in the Boilermakers' Case, the underlying concept of the separation of powers doctrine - "a safeguard of individual liberty"(85) - supported the need for a clear legislative intention before a Court would hold that functions entrusted to a judge of a federal court were to be exercised as persona designata(86). Their Honours commented(87):

"To the intelligent observer, unversed in what Dixon J accurately described - and emphatically rejected - as 'distinctions without differences'(88), it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade."


15. The factors that led their Honours to the view that the function was conferred on the judges not as personae designatae but as judges of the Federal Court were:

(1) the Act referred to the person as "a Judge";

(2) there was no indication that the judge undertook the function personally;

(3) the function was quasi-judicial in nature in that similar functions had been traditionally carried out by magistrates;

(4) nothing in the Act required the prior consent of a judge of the Federal Court to the imposition on him or her of the administrative function, it being treated as "an unavoidable concomitant of judicial office".


16. Mason and Deane JJ felt unable to hold that s 20 was valid, but they refrained from answering the case stated in the absence of argument on the Commonwealth Solicitor-General's "proposed submission that the Court should reconsider the Boilermakers' Case"(89).


17. Although the Court held that s 20 was valid, the amendments to the Act in 1987 responded to some of the concerns of the minority in Hilton v Wells. The Explanatory Memorandum accompanying the amendments made it clear(90) that the legislative purpose in inserting s 6D and creating the process for appointment of "eligible Judges" by the Attorney-General was to:

"avoid any possible argument that the power given to eligible Judges to issue interception warrants ... is invalid because it amounts to the conferral of a non-judicial power on a court. The matter was considered by the High Court in Hilton v Wells (1985) 58 ALR 245, where a majority held that there is no necessary constitutional impediment preventing the Parliament from conferring non-judicial power on a particular individual who happened to be a member of a court. Proposed section 6D makes it clear that the power to issue warrants is conferred on individual persons or classes of persons declared by the Minister who happen to be Judges of a court created by the Parliament."


18. If the Parliament's intention is correctly expressed in this statement from the Explanatory Memorandum, that intention has not been explicitly carried into effect. Nowhere, for example, does the Act explicitly state that a person who is a judge is appointed in his or her personal capacity or that being a judge is merely the qualification for holding the separate office described by the Act(91). Nevertheless, the language of the statute does inferentially show that Parliament's intention was to confer the power to authorise the issue of telephone interception warrants upon an "eligible Judge" as persona designata and not as a judge of a federal court. Matters that support this conclusion are the definition of "Judge" in s 6D as "a person who is a Judge of a court created by the Parliament"; the consent and nomination process in s 6D; and the granting of immunity to eligible judges by s 6D(4) which suggests that the immunity of Federal Court judges would not otherwise apply to the granting of warrants(92).




The incompatibility qualification on the persona designata doctrine
19. In Hilton v Wells(93), the Court accepted that the power to issue warrants is an administrative power and not a judicial one, a view that accords with previous and subsequent authority(94). Both the majority and minority judgments in Hilton v Wells also accepted that the administrative power to authorise the issue of warrants may be conferred on a person who is a federal judge as persona designata. Nevertheless, both judgments recognised that the power to confer functions on a judge as persona designata is not unlimited. Gibbs CJ, Wilson and Dawson JJ said(95):

"It was submitted by Mr Ellicott that the separation of judicial and administrative power is not merely a matter of verbal formulae and that is, of course, correct. If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers' Case would doubtless render the legislation invalid. But the exercise of the functions conferred by s 20 would not have that result. The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers."

Similarly, Mason and Deane JJ said(96):

"(I)t has been recognized that non-judicial functions may be entrusted to judges personally and not in their capacity as judicial officers, but, it seems, on the footing that a duty of acceptance cannot be imposed(97). This recognition is no doubt subject to the general qualification that what is entrusted to a judge in his individual capacity is not inconsistent with the essence of the judicial function and the proper performance by the judiciary of its responsibilities for the exercise of judicial power."


20. However, no argument was addressed to the Court in Hilton v Wells as to whether the persona designata doctrine is subject to an incompatibility qualification or whether the legislation was compatible with the exercise of the judicial functions vested in the judges of a federal court(98). Hilton v Wells, therefore, does not decide whether the persona designata doctrine is subject to an incompatibility qualification or whether the provisions of the Act vest functions in a person who is a judge of a federal court which are incompatible with the judicial functions of that person. In Jones v The Commonwealth(99) Gaudron J(100) noted that the incompatibility issue was not argued in Hilton v Wells and expressed the view that, if the leave of this Court was needed to re-open Hilton v Wells, she would have granted it. In my view, however, no leave is needed to challenge the validity of the provisions which the applicant challenges in these proceedings.




Incompatibility
21. Clearly, a tension exists between complying with the principle of the separation of powers and vesting powers in federal judges as persona designata. If the separation of powers doctrine is to continue effectively as one of the bulwarks of liberty enacted by the Constitution, the incompatibility qualification on the persona designata doctrine is a necessity. Without that qualification, it would permit the Parliament "to sap and undermine" the separation of legislative, executive and judicial powers that is inferentially expressed by ss 1, 61 and 71 of the Constitution and which was rigorously applied by this Court and the Judicial Committee of the Privy Council in the Boilermakers' Case. The constitutional wall that separates the exercise of judicial power and the exercise of executive power would be effectively breached if a federal judge could exercise any executive power invested in him or her as persona designata. If, therefore, the non-judicial functions of a federal judge threaten the ability of the judge to perform his or her judicial functions or if those non-judicial functions are of such a nature that public confidence in the independence or impartiality of a federal judge to carry out judicial functions is threatened, those non-judicial functions undermine the doctrine of separation of powers and are incompatible with the office of a federal judge.


22. In determining whether incompatibility exists, the appearance of independence and impartiality is as important as its existence. It is trite to say that justice must not only be done but must be manifestly seen to be done. One of the usual reasons for investing executive power in a judge as persona designata is that it gives the exercise of executive power the appearance of independence and impartiality that is always associated with the exercise of judicial power. That independence and impartiality is only possible, however, because of the institutional separation between executive and judicial functions. When a person who holds judicial office contemporaneously exercises executive power as persona designata, members of the public may have great difficulty in seeing any separation of those functions. The greater the association between the judicial status of the persona designata and the executive functions that he or she performs, the greater is the likelihood that the judicial and non-judicial functions of that person will seem to be fused. In that situation, it is likely that members of the public will fail to distinguish between the judicial functions of the judge and the executive functions of that person as persona designata and will conclude that the judge is neither independent of the executive government nor impartial when dealing with actions between the citizen and the government and its agencies.


23. The persona designata exception to the Boilermakers' principle must therefore give way when the exercise of non-judicial functions impairs a federal judge's ability to perform judicial functions or when it would give rise to a reasonable doubt as to the independence or impartiality of a federal judge. In either case, Parliament cannot constitutionally invest executive power in a federal judge as persona designata. As the Supreme Court of the United States pointed out in Mistretta v United States(101):

"The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action."

If, therefore, reasonable people, not trained to discover "distinctions without differences"(102), might reasonably apprehend that the functions undertaken by a judge as persona designata impaired his or her ability to carry out judicial functions or conflicted with the judge's independence or impartiality, those non-judicial functions cannot constitutionally be invested in a person who is a member of a federal court. Furthermore, since the Constitution requires that the exercise of judicial power be separated from the exercise of executive power, those who assert the compatibility of the non-judicial and judicial functions of a person who holds office as a federal judge have the burden of proving that those functions are compatible.




Application of the principle to this case
24. The question in this case therefore is whether investing persons who are judges of the Federal Court with the power to authorise the issue of warrants is incompatible with the exercise of the judicial functions of judges of that court. In my opinion, the functions undertaken by Federal Court judges acting as persona designata in accordance with the Act are of such a nature and are exercised in such a manner that public confidence in the ability of the judges to perform their judicial functions in an independent and impartial manner is likely to be jeopardised. That being so, the power to authorise the issue of intercept warrants is incompatible with the exercise of the functions of a judge of a federal court.

115 (1978) 141 CLR 54 at 72-77.

116 (1984) 154 CLR 311 at 316.

117 (1985) 157 CLR 57 at 67, 78.

118 (1948) 333 US 10 at 14.

119 (1765) 2 Wils KB 275 (95 ER 807).

120 Story, Commentaries on the Constitution of the United States, 1st ed (1833), vol 3, pars 1894, 1895. See also Berger v New York (1967) 388 US 41 at 49-50.

121 18 USCA. Rule 41(a) took its present form in 1990.

122 Coolidge v New Hampshire (1971) 403 US 443 at 451-453; Shadwick v City of Tampa (1972) 407 US 345 at 348-350; Connally v Georgia (1977) 429 US 245 at 250.

123 28 USCA, par 631.

124 Chemerinsky, Federal Jurisdiction, 2nd ed (1994), par 4.5; Wright, Law of Federal Courts, 5th ed (1994), pars 2, 11.

125 United States v Torres (1984) 751 F 2d 875 at 878-880 per Posner J.

126 18 USCA, pars 2510-2520.

127 These are summarised in the majority judgment of the United States Court of Appeals, Second Circuit, in In re United States of America (1993) 10 F 3d 931. See also United States v Giordano (1974) 416 US 505 at 514-523.

128 In re United States of America (1993) 10 F 3d 931 at 936, 943.

129 Cominos v Cominos (1972) 127 CLR 588 at 606-607 per Mason J. See also the joint judgments of the Court in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665-666 and Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189, and the judgment of Gaudron J in Re Dingjan; Ex parte Wagner (1995) 69 ALJR 284 at 301; 128 ALR 81 at 106-107.

130 See Strauss, "Formal and Functional Approaches to Separation-of-Powers Questions - a Foolish Inconsistency?", (1987) 72 Cornell Law Review 488 at 503-526; Davis, "The American Bar Association and Judicial Nominees: Advice Without Consent?", (1989) 89 Columbia Law Review 550 at 566-568.

131 (1990) 169 CLR 307 at 318-322.

132 (1990) 169 CLR 307 at 320.

133 (1987) 61 ALJR 348 at 349; 71 ALR 497 at 499.

134 (1987) 61 ALJR 348 at 350; 71 ALR 497 at 499.

135 (1985) 157 CLR 57 at 81.

136 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; Attorney-General of the Commonwealth of Australia v The Queen (1957) 95 CLR 529.

137 (1956) 94 CLR 254 at 296.

138 (1985) 157 CLR 57 at 73-74.

139 (1988) 487 US 654 at 680-681.

140 Buckley v Valeo (1976) 424 US 1 at 123.

141 (1989) 488 US 361 at 407.

142 (1957) 95 CLR 529 at 540.

143 Translation in Kurland, The Founders' Constitution, (1987), vol 1 at 624-625.

144 See Komesar, "Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis", (1984) 51 University of Chicago Law Review 366 at 371-373; Note, (1989) 103 Harvard Law Review 279 at 286-287.

145 (1931) 46 CLR 73 at 117.

146 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267-268.

147 Fencott v Muller (1983) 152 CLR 570 at 608.

148 Webb v The Queen (1994) 181 CLR 41.

149 (1957) 95 CLR 529 at 542.

150 (1990) 169 CLR 307 at 322.

151 A list, current to 30 June 1994, is contained in the Annual Report 1993-1994, submitted to the Attorney-General pursuant to s 18S of the Federal Court of Australia Act 1976 (Cth).

152 Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; GFC Super Fund v Saunders (1994) 52 FCR 48 at 64-68.

153 cf Najjar v Haines (1991) 25 NSWLR 224 at 228, 229-230, 244; Barton v Walker (1979) 2 NSWLR 740 at 749-751.

154 Family Law Act 1975 (Cth), s 22; Federal Court of Australia Act 1976 (Cth), s 6; Industrial Relations Act 1988 (Cth), s 362; Acts Interpretation Act 1901 (Cth), s 16A.

155 cf Johns v Australian Securities Commission (1993) 178 CLR 408 at 424.

156 Smith Kline and French Laboratories (Aust) Limited v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 98-99; affd (1991) 28 FCR 291; Esso Australia Resources v Plowman (1995) 69 ALJR 404 at 416; 128 ALR 391 at 407.

157 Sirros v Moore (1975) QB 118 at 132; Gallo v Dawson (1988) 63 ALJR 121 at 122; 82 ALR 401 at 402-403.<