Love v The Attorney-General for New South Wales & Anor; Peters & Anor v The Attorney-General for New South Wales

[1989] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S58 of 1989

B e t w e e n -

MALCOLM JAMES LOVE

Appellant

and

THE ATTORNEY-GENERAL IN AND FOR

THE STATE OF NEW SOUTH WALES

First Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Office of the Registry

Sydney No S61 of 1989

B e t w e e n -

BRENT RICHARD PETERS and

KATHLEEN MAREE PETERS

Appellants

and

Love(2)

THE ATTORNEY-GENERAL IN AND FOR

THE STATE OF NEW SOUTH WALES

First Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

FOR THE STATE OF NEW SOUTH WALES

Second Respondent

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

C2Tl/l/PLC 97 10/11/89

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 NOVEMBER 1989, AT 9.48 AM

(Continued from 9/11/89)

Copyright in the High Court of Australia

MASON CJ:	Yes, Mr Solicitor.
MR MASON:	Your Honours, by way of two general preliminary

submissions, we would contend that this case is a graphic example of the difficulties one gets into in endeavouring to anticipate the normal processes

of the criminal law and to bifurcate applications

that should be, and properly should be brought at

the trial. We will seek to develop that in particular

instances as we go. Secondly, it can, in our

submission, be said that both parties - I will be
suggesting my learned friends more than myself -

have adopted differing positions in the Court of

Appeal and here, of some very considerable significance and I will endeavour to illustrate that proposition in its particular application.

If I may take Your Honours first to some aspects

of construction of the CUSTOMS ACT and firstly put

the submission that sections 219B(l) and (2) do not

create any criminal offence.	The expression used in
each case is that 11 it is unlawful" for certain things

to take place. That may be contrasted with

section 219F(l) where there is a statement prohibiting

something to take place with a penalty being imposed.

(Continued on page 99)

C2Tl/2/HS	98	10/11/89
Love(2)

MR MASON (continuing):  We would also draw attention to

section 219B(3) which imposes a duty on the commissioner

of police:

to take reasonable steps to ensure that
subsections (1) and (2) are not

contravened:-

something that lies a little strangely with the fact

that those two subsections themselves create criminal

offences.

So, our submission is, that the declaration

of unlawfulness is intended to set up, as it were, a

BUNNING V CROSS issue to create an environment whereby,

if there is breach, the evidence is unlawfully obtained

with certain discretionary consequences.

We would then submit that section 219B(l)

does not prevent the Australian Federal Bolice from

investigating State offences generally or the State

offences in the context of this particular case.	Now,
I appreciate this only goes to the extent of the
severance of the warrants but because of the

submissions that have been ma.de, ~ w:5uld:. wish to address. it.

In section 219A(2)(a), it is stated

that:

Unless the contrary intention appears -

(a) a reference to narcotics inquiries

that are being made by members of the

Australian Federal Police shall be read

as a reference to -

(i)       inquiries that are being made by

members of the Australian Federal Police

in relation to a narcotics offence -

and that term is defined in subsection (1) as being:

An offence punishable as provided by

section 235 -

of the CUSTOMS ACT.

So,.the preclusion effected by section 219B(l)

is that limited, in our submission.

When one turns to the warrants in this particular

case, and my learned friend sought to argue that as a
matter of fact the proposition I have just stated cannot

apply because there is an essential and necessary overlap,

we would submit that that is not the case; that the

relevant State offences are supply and conspiracy to supply

a prohibited drug. Conspiracy to supply does not necessarily entail

possession of the drug.

C2T2/l/JH	99	10/11/89
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MR MASON (continuing): "Supply'has an extended statutory

definition, as this Court was involved with in

TANNOUS' case, which goes well beyond the concepts

that are picked up by the federal offences that

are recited in the warrants, and in any event the heroin must be shown to have been imported. Now, accepting that there is a reverse onus, there

nevertheless is in issue. a potential issue in the

trial that the heroin is imported heroin. So there

is plenty of State work to be done that is not

eclipsed by the federal scope of the inquiries even

if the point of statutory interpretation I just

put about the meaning of narcotics offence is

incorrect.

Your Honours, we would then submit that on the

facts of this case, the use of a listening device

by the Australian Federal Police, if established,

would not necessarily be in breach of section 219B(l)

and a fortiori the use by the New South Wales police.

This is a point that is independent of the matter

dealt with in paragraph 2 of our written submissions,

and it focuses, if I may ask Your Honours to look

again at 219B(l) - it focuses upon the fact that
the word "Australian Federal Police" is stated twice:

purposes of narcotics inquiries that are

It is unlawful for a member of the

being made by members of the Australian

Federal Police.

In the warrants in this particular case, they all have

a common form: page 14 is the first of them. They

all authorize the use, by a particular person, of the

listening device - on page 14 it is Detective Constable

Scott, and in each case that person was a member of

the State police. That appears from - I will find the

page, Your Honours, and give Your Honours the reference -
and it goes on to say, "and on his behalf", and then

we have a lot of State police, followed by a lot of

federal police. (Continued on page 101)

C2T3/l/FK	100	10/11/89
Love(2)

MR MASON (continuing):  The reason for that form is to be

found in the provisions of the LISTENING DEVICES ACT,

section 16(4)(d) which provides that:

A warrant granted by the Court under this

section shall specify ..... the name of any

person who may use a listening device pursuant
to the warrant and the persons who may use

the device on behalf of that person.

So, this does not mean that when the federal police,

if it is established that they use the device, were

not doing so on their own behalf albeit that they

were members of a joint force and albeit that they
may have relied upon a warrant granted initially to

a senior State police officer but it does mean that

certainly when one looks at the use by the State

police there is a factual difficulty in fitting that use into the preclusion of section 219B(l)

and 219B(2).

Your Honours, if I could then turn to the

submission we put by way of contention in
paragraph 2 of our outline of submissions.

Mr Justice McHugh held at page 116, lines 25 to 27, that section 219B(2):

does not prevent State police officers from

using listening devices to investigate federal
offences unless their use is by arrangement

with a member of the AFP and while narcotics

inquiries are being made by members of the AFP.

And on the following page, lines 20 to 25, he made a

statement to similar effect. The declaration that

was made, appearing on page 128, obviously has no

utility in the facts of the present case unless it

is really stating by way of conclusion that State

police were acting by arrangement with the federal

police and the warrants were bad in that connection

and it has been seen, I understand by both sides,

that that is the real thrust of the first declaration;

otherwise, it is simply restating the section.

(Continued on page 102)

C2T4/l /SH	1 0 1	10/11/89
Love(2)

MR MASON (continuing):  Now, our submission is that

section 219B(2) does not apply to members of the

State police engaged in a joint drug task force

and engaged generally. At page 83 of the appeal

books in the affidavit of Detective Sergeant

Harvey in paragraph 2, there is evidence about

the joint drug task force - it has since been

disbanded:

established in 1979 following recommendations

by Justices WOODWARD and WILLIAMS ..... The

primary objectives ..... are to:

(i) investigate the identity of persons

in the State of New South Wales engaged

in the commission or omission of acts of

unlawful nature designed to assist drug

trafficking.

(ii)      secure the conviction .....

(iii) evaluate the value of co-operation

between law enforcement agencies.

3. The JTF comprises 21 personnel, with the
Leader being a Superintendent of the

New South Wales Police Force. The remaining

20 positions are equally divided between the

New South Wales Police and Australian

Federal Police, with the senior officer from each contingent filling the role of Deputy

Leader. The Deputy Leader (State) is a

Detective Chief Inspector of the New South

Wales Police and the Deputy Leader (Federal), a Detective Inspector of the -

AFP. Then there is a management committee referred

to in paragraph 5, whereby there is political

accountability. It is in paragraph 10 of that affidavit on page 86 that the evidence appears that Constable Scott is a member of the State

police and in the remaining paragraphs of that	affidavit which address the respective warrants	a similar statement is made with respect to the
person who was primarily authorized in the warrant.

(Continued on page 103)

C2TS/l/DR	102	10/11/89
Love(2)

MR MASON (continuing):  Now, Your Honours, we would - 1n

interpreting 219B(2), our submission is that that

subsection is confined in its operation to a person
who uses the listening device by arrangement with
a member of the Australian Federal Police for the
purpose of narcotics inquiries being made by members

of the Australian Federal Police and, as a matter of

interpretation, that could not apply to the use by

the State police under this warrant which was

primarily granted to a State police officer and on

his behalf other State police officers.

BRENNAN J:  Why is that? Why is it that if, in fact, there

is a particular act of use by a State police officer

which falls within each of the elements in

section 219B(2), that that is not something which

is unlawful, and if the warrant be an administrative

act, quite unaffected by anything that might have

happened under the State Act?

MR MASON: If it falls within section 219B(2) it definitely is

unlawful.

BRENNAN J:  How does the warrant effect whether it falls within section 219B(2), or not?

MR MASON: It does not, but in this particular case the warrant

is the only evidence presently before the Court as

to what happened. We argued below that the time for

determining the unlawfulness of the surveillance

activities had not arisen because this was a challenge

to the warrants. We argued that section 219B does

not address the supreme court, does not address the

act of issuing the warrants, but addresses the

activity of policemen - and there is a question of

construction, whether it is State police - but we have

not got to the stage, and will only do so at the trial

when one sees what was the range of activities the

police were engaged in.

(Continued on page 104)

C2T6/l/HS	103	10/11/89
Love(2)

BRENNAN J: Well then, so far as the warrant is concerned,

it is either irrelevant to the operation 219B(2),

or being a judicial act, which seems to have been

conceded for some reason in the court below, it

judicial order to do that which 219B(2) might	is regarded as a judicial authorization by a
otherwise prohibit.

MR MASON:  And even if it were, it would not, on that approach

confer authority to do that which 219B(2) precludes.

BRENNAN J: Well then, that means that you are saying that

a judicial decision, embodied in an order, which

is wrong in law, is of no effect if it is contrary

to a federal law.

MR MASON:	May I come back to that because I am not, I believe,
driven to saying that and indeed I would embrace the

opposite. But we would certainly - - -

BRENNAN J: Does it not - - -

MR MASON:  I am sorry.

BRENNAN J: No, no.

MR MASON:  We would certainly embrace the proposition that

219B on their face say nothing about the act of the

judge or of the court, but 219B on their fact cannot

be validated by an act of a State judge under a

State Act, because even if that State Act is valid

it must yield under 109 to the force of the federal

statute. So it is - - -

BRENNAN J: The· Act must yield, but the question is whether the

judicial order must yield.

MR MASON:  Yes. If it is a judicial order we get into the

problems that arise from, as Your Honour put it,

the autochthonous expedient, that since State courts

have authority to interpret the CONSTITUTION does

that not, within certain bounds, confer authority

to interpret it wrongly, and if it is a judicial

order, what is the consequences of that, and I

certainly intend to address that.

(Continued on page 105)

C2T7/l/CM	104	10/11/89
Love(2)

HR MASON (continuing):  But, there is still the prior

question of the interpreted scope of

section 219B(2) and on the facts of this case,

the only evidence about the authorized use, or

possibly about the actual use, are the warrants

themselves. And so, to answer Your Honour's

original question, I submit that one can look at,

if one is fighting the case the way that it was

fought below, and an attack on the warrants, one

can look at the warrants to see what were the

extent of the activities that were authorized, and with respect to State police, it was to do certain things as part of an inquiry whose head was

a State police officer and, therefore, the double
reference to Australian Federal Police

in section 219B has not been answered.

We would also say, looking more closely at

section 219B(2), what is made unlawful for a person,

and assume for the moment "person" includes a

State police officer, what is made unlawful is to

act by arrangement with a member of the Australian

police:

to use, for the purposes of narcotics

inquiries ..... being made -

by the members of the Australian Federal Police - a listening device.

And, we would say that the activity which was

authorized by the warrant went beyond that so far as

State police were concerned. Your Honours, one gets

an indication of what I would call a tighter

interpretation of section 219B(2) by turning to

section 219F(l) because that is the section is

designed to keep the information gathered under wraps,

if I may so describe it:

A person shall not divulge or connnunicate to

another person, or make use of or record,

any information obtained by using a listening

device for the purposes of narcotics

inquiries that are being, or have been, made

by members of the Australian Federal Police,

being information that has come to his

knowledge or into his possession by reason

of his being, or having been, a member of

the Australian Federal Police -

now, that is section 219B(l) country -

or by reason of his having entered into an

arrangement with a member of the Australian

Federal Police to use a listening device for the

purposes of those inquiries -

C2T8/l/JH	105	10/11/89
Love(2)

that is section 219B(2) country and that stresses,

in our submission, that what section 219B(2) is

directed at is an arrangement in which the

federal police are offering the use of the listening

device to some person acting on their behalf and,

we would say, such as an informer or an agent

but it is entirely inappropriate on the evidence

that we have about this arrangement here to say that

the use of the listening device was something that

was being authorized by the federal police to someone

on their behalf.

Your Honours, we would seek to reinforce that

constructional argument in the context of the

present arrangements by the two arguments set out

• on page 2 of our written submission: the first is

an argument from convenience in that if

section 219B(2) is capable of applying to State
police forces, the effect is to discourage joint

federal-State drug investigations. And, that happens

in two ways and, indeed, if my learned friend is

correct about federal narcotics offences embracing

State offences, it discourages State police from investigating State offences if they do so in conjunction with the federal people. And, this

happens by two ways. If my friend is right, you

cannot get a State warrant but you cannot get a
federal warrant either; the State police cannot get

a federal warrant either and we have referred to the

sections which make it plain that only members of
the federal police can get warrants under the

CUSTOMS ACT.

(Continued on page 107)

C2T8/2/JH	106	10/11/89
Love(2)

MR MASON (continuing): Secondly, there is no automatic

right of access to the fruits of the investigation

because of section 219F(2) and (3) which provide

a discretion to the Federal Commissioner of Police

as to whether or not to make available the fruits

of the investigation. In our submission, those

consequences are so undesirable that the Court

ought not to strain 219B(2) to extend to State

police.

Alternatively, we put it on a more traditional constitutional basis; that we say that 219B(2) does

not evince as it needs to an intention to bind the

New South Wales' Crown - BRADKEN's case - and the

words "person acting by arrangement with a member

of the Australian Federal Police" cannot be or should

not be construed in such a way as to prejudice the

interests or purposes of the New South Wales' Crown

and may I take you to a short passage in the

WYNYARD INVESTMENTS case, (1955) 93 CLR 376. It

is in the judgment of Mr Justice Kitto at pages 392

and 393.	At the very bottom of page 392, His Honour
said that:

The Sovereign alone is the Crown. In this

country, where questions concerning the

Monarch personally can seldom arise, the

Crown normally means the Sovereign

considered as the central government of the

Commonwealth or a State. Ordinarily, therefore,

to hold that a given statutory provision binds
the Crown is to hold that it operates to
destroy or curtail or impair some interest
or purpose of the Sovereign as so considered.

Where the immunity is claimed by a subject of the Crown, whether an individual or a

corporation, the question to be decided,

whatever may be the language in which for

convenience it may be expressed, cannot

really be whether the subject is within

a class of departments, organization and

persons generically (and loosely) described

as the Crown. It must always be whether
the operation of the provision upon the

subject would mean some impairment of the

existing legal situation of the Sovereign.

Now, Your Honours, we would in this context reiterate

then the argument of convenience that if 219B(2)

extends to State police simply because they

co-operate with their federal counterparts, that

does impair the interests of the Crown. We would,

as we do at the very bottom of page 2, remind

Your Honours of the passages which make plain

that policing is an essential function of government

within the frame of reference that we are presently

involved and, at the top of page 3, put the submission

that the New South Wales' Crown's functions of

C2T9 /1 /SH	107	10/11/89
Love(2)

preservation of order and prevention of crime extend

to the investigation of federal as well as State

offences occurring in New South Wales and, in a

sense, we turn the overlap argument back to our

advantage if we may.

So, Your Honours, if that is correct and the 219B(2) says nothing to these State police, it was

unclear to us whether this is a matter to be raised

by way of contention and we gave a notice of contention

to my learned friend saying that we would be arguing
that that was wrong and arguing, then, that the

declaration that was made by the court can just

stand but with this Court expressing its disagreement

with the reasons of the court below, saying that

that declaration is all right because it merely

restates 219B(2) but it has nothing to say to the

facts of this case because State police are not

caught by 219B(2).

(Continued on page 109)

C2T9/2/SH	108	10/11/89
Love(2)

MR MASON (continuing): It has occurred to us, and has been

suggested to us, that it is perhaps a preferable

course to move by way of a cross-appeal to have

the first declaration struck out, and that is what

we do. I will have a piece of paper to hand to

the Court at the end of the argument because there is another similar application that is

encompassed in it.

Your Honours, can I then turn to the question

about section 109? This arises in a context where

219B(l) and possible (2), if we are wrong, has

something to say about the activities that were

authorized to be done by the federal police and

perhaps even the State police in this particular

investigation and there have been presented, in

our submission, two quite alternative routes whereby

that 109 issue can be addressed. The first is to

see the CUSTOMS ACT as a command to the police but

not to the supreme court. The second is to see the

CUSTOMS ACT as knocking a hole in the LISTENING

DEVICES ACT as was put yesterday, which the supreme

court should have recognized; and I wish to move down

those two alternative tracks.

The first, that is a command to the police, but not to the supreme court, is the point that we argued

below unsuccessfully. Page 113 of the appeal books,

Your Honours, in the judgment of Mr Justice McHugh,

at line 14, after referring to section 109:

The answer of the Attorney General for

New South Wales is that no offence -

and we did not say "offence" below, in my recollection

and submission -

no offence against s 219B occurs until one

of the persons specified in sub-sections (1)

or (2) uses the listening device. He contends

that there is no collision between the issue

of the warrants in the present case ands 219B.	If a device is used in contravention of s 219B,
the existence of a NSW warrant, so it was said, can not prevent an offence -

again, we would say "unlawful act" -

occurring. Consequently, the Attorney General

contends that neither s 219B(l) or (2) prevents

the issue of a NSW warrant nor invalidates it.

Now, that is the argument which is primarily embraced

here by my learned friend. I think it would be fair

to say that the way that Mr Justice McHugh rejected

our argument below, while it was put by my learned

friend, was not his primary contention their either

C2Tl0/l/FK	109	10/11/89
Love(2)

but that is my recollection. If this is correct,

if this is the correct way of seeing it as a command

to the police, this case is really a skirmish in

advance of a trial and no order should have been made

with respect to the warrants. When challenged

yesterday, at pages 64 and 65 of the transcript, my

learned friend was asked, "Well, what is the case

about?" and he said, "Well, primarily we want the

tapes back", but his first answer was, "Well, we

want to effect the warrants." But when pressed to

say, "Well, what good is knocking the warrants out

really going to achieve at the trial?", my submission

is that the answer that he gave was not very substantial.

He said, in effect, "Well, we do not quite know, but

it some way it will help." If it is correct to say

that 219B only strikes at what the police actually

did, as distinct from what they were authorized to

do, then the whole case about the tapes goes out

straight away, because there is simply no evidence in

this case about what police did what; what they were

investigating. That will all arise when the police are

called and give their evidence in relation to these

State off enc es and there may well be then voir dire

questions to try and show that although they overheard

evidence relevant to a State offence, they did so

in connection with some federal narcotics inquiry and then

there will be arguments about whether that impacts

adversely upon the lawfulness of the evidence which

they are called to give.

(Continued on page 111)

C2Tl0/2/FK	110	10/11/89
Love(2)

MR MASON (continuing):  But the whole tape case eoes out of

the window on this approach which is the primary

approach which my learned friend embraces here.

An attack based on an excess of jurisdiction by

the supreme court is, in our submission, totally

irrelevant as we argued below and on this approach,
in our submission, the appeal to the High Court

should be disposed of by setti~g aside - going to

page 128 - declaration 1 entirely and by setting

aside order 3 whereby we were ordered to pay the

costs below on the basis that we had lost in some

relevant respect. It was, as we contended then

and do now, an entirely irrelevant, premature

skirmish which, unfortunately - and this is part

of the difficulty that the Crown is placed in -

has resulted in some statements being made by the

Court of Appeal which, unless corrected, will

doubtless have a significant impact upon the

conduct of the trial.

Now, Your Honours, that is the first path.

The second path was to argue that the CUSTOMS ACT

knocks a hole in the LISTENING DEVICES ACT which

the supreme court should have recognized. My

learned friend argues that here; we argued that

below and we embrace it here. What it means,if one looks at the LISTENING DEVICES ACT, is that

there is an inconsistency between the CUSTOMS ACT

and the LISTENING DEVICES ACT in that the

LISTENING DEVICES ACT could not validly authorize
the issue of a warrant to the federal police

for at least some of their inquiries and possibly

even to the New South Wales police for some of

their inquiries.

And in sort of textual terms, section 16(4)(d) of the LISTENING DEVICES ACT which speaks of

naming the person who may use a listening device,

what the argument really amounts to is to say

that "person" cannot include federal police in

certain contexts and perhaps even cannot include

State police in certain contexts. It would be

wrong to say, however, that there could be any	inconsistency based upon the CUSTOMS ACT authorizing
what the LISTENING DEVICES ACT prohibits. My
friend, yesterday, said we may get into an
inconsistency because a warrant could be granted under.the CUSTOMS ACT to do something and portions
of the LISTENING DEVICES ACT say that you cannot do it.

Section 5(2)(b) of the LISTENING DEVICES ACT

expressly addresses and precludes that form of

inconsistency because it provides that the

prohibition which is the central section of the

LISTENING DEVICES ACT, which that Act imposes upon

listening in to conversations, does not apply if

you do it under some valid federal warrant.

C2Tll/l/DR	111	10/11/89
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Well, then returning, if the CUSTOMS ACT

knocks a hole in part of the LISTENING DEVICES ACT,

what is the effect of a warrant having been granted

by a supreme court judge who overlooked the hole

because he assumed that the LISTENING DEVICES ACT

was what it was on its face:  a statute that was

valid? Here the argument divides again into

what if it is an administrative function; what if

it is a judicial function? And here the accusation

of changeling gets thrown at me. My learned friend,

here and below, said it was not an administrative

function. We, below, said it was a judicial

function but would wish to assert here that it is

administrative.

My learned friend concedes that if it is an

administrative function the severability doctrine,

which has been established in the Federal Court

and in the overseas cases to which we draw

attention, applies and the warrants are valid with
respect to their intended use in this particular

prosecution.

(Continued on page 113)

C2Tll/2/DR	112	10/11/89
Love(2)

BRENNAN J:  Why are they not valid entirely in the sense that

they are seen as lifting a prohibition contained in

section 5, and that is all that they can do?

MR MASON:	Yes.
BRENNAN J:	And if they do not need to lift the prohibition

in section 5, because section 5 is overridden by

the federal law, then.itdoes not matter.

MR MASON:  With respect, I would agree with that, Your Honour,

but my friend's argument, as I understand it, is

that if administrative the law allows severability

to apply to warrants granted by an administrative

functionary, or in an administrative function, and
that while we can argue about how you slice up these

warrants, they are capable of severance.

Your Honours, we would wish to adopt what

Your Honour Justice Gaudron said at pages 8 and 9 and
Your Honour Justice Brennan said at page 12 of

yesterday's transcript about the nature of this

function, refer Your Honours to some passages in
HILTON V WELLS, (1985) 157 CLR 57, 67 and 78 -
I will not take Your Honours to them, if I may -

and put this submission, that the nature of a power does not change because its exercise takes place in

a judicial setting. With reference to that I would

wish to take Your Honours to a passage in 78 CLR.

I am sorry that is not in your list but I hope the

tipstaves will be able to hand Your Honours a copy

of RV COMMONWEALTH COURT OF CONCILIATION AND

ARBITRATION EX PARTE OZONE THEATRES, (1949)

78 CLR 389, 399.	It was stated there, about
point 3:

The court is a statutory tribunal the

jurisdiction of which is defined by statute. It is not such a superior

court within the meaning of the

proposition that all matters are

within its jurisdiction unless the

contrary is shown. This is the mark

of a superior court as distinguished

from an inferior court ..... Mandamus

will not go to such a superior court

..... Section 17(3) of the COMMONWEALTH

CONCILIATION AND ARBITRATION ACT

1904-1948 provides that the Arbitration

Court shall be a superior Court of

Record. But for the reason stated, this

provision does not remove the court or
its judges from the area of application
of the writ of mandamus.

Then there is a reference to section 75 of the

CONSTITUTION and the fact that judges of that court

C2Tl2/l/HS 113 10/11/89

l.ove(2)

were amenable to section 75 writs, and about

10 lines up from the bottom:

The provision contained ins. 17(3)
of the Act does not remove the judges
of the court from the category of

officers of the Commonwealth. Their

duties and powers are not so extensive

now as they were under the Act before

1947, but they are of the same character.

The application which is said by the

prosecutor to come within the jurisdiction
vested in the court bys. 25 is not an

application for the exercise of any

judicial power. It seeks action by the

court in its arbitral jurisdiction, and,
in this connection, it is not material

whether or not the court, when acting

in its judicial character, is in any

sense a superior court.

Now it is that last sentence in particular that

we would found upon to support the proposition that

the nature of the power does not change, thought its
exercise takes place in a judicial setting and all of
the paraphernalia of, as it were, plugging in to

the procedural rules of the supreme court that my

friend referred to, including the doctrine in the

caseF the electricity - - -

MASON CJ:	ELECTRIC LIGHT AND POWER.
MR MASON:	ELECTRIC LIGHT, thank you, Your Honour -

including that doctrine just does not really take the

matter any further because all that that does is to

say, "Well, all the rules and procedures can descend

upon this application, but they don't change its

nature".

(Continued on page 114)

C2Tl2/2/HS 114 10/11/89

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MR MASON (continuing): The State courts are replete with non-judicial

functions. The District Court of New South Wales

has a number of functions which in time may be

given to an Administrative Appeals Tribunal,

licencing reviews and the like, but in the State's

view there is no ~onstitutional prohibition

upon this merger and there is no reason why rules

of court cannot, to the extent that they are capable
of applying, apply without changing the nature of

the function. Let is be assumed against that

argument that it is a judicial function and what

is the effect of the hole in the LISTENING DEVICE ACT

theory if it is seen as an exercise of a judicial

function?	My submission is that my learned friend's
argument proves too much.	If it is an order of

a superior court to be seen as a judicial order,

it is valid until set aside and what has happened

ex hypothesi is that the supreme court, which has

jurisdiction to determine constitutional questions,

has failed to appreciate the impact of the CUSTOMS ACT

in knocking this hole in the LISTENING DEVICES ACT.

The LISTENING DEVICES ACT was on the statute book.

The judge acted bona fide. The judge had jurisdiction

to entertain an application for a warrant but

simply failed to appreciate that certain words in

the LISTENING DEVICES ACT were not as broad as they

appeared to be.

In our submission, the principle is that it is

a valid order until set aside and acts done under

it are lawful and to set aside the warrant is of no

purpose. It does not even get you to a BUNNING V CROSS

threshold, but worse that than, it is denying the

very lawfulness of the order while it stood. May I

again - and I am sorry it is not, I think, on a list -
ask Your Honours to look at 145 CLR, a very short
passage from WILDE V AUSTRALIAN TRADE EQUIPMENT CO

PTY LTD, (1981) 145 CLR 590' at 603. That was a

case in which a company granted a charge and took

no steps to register it as required by the

COMPANIES ACT. An ex parte application was made by

the grantee of the charge to extend the time for

registration. That was granted. The charge was

registered. The company went into liquidation and

the registration of the charge was attacked and failed,

according to the court. And at page 603, in the

joint judgment of Justices Stephen, Murphy and

Wilson, with whom Justice Aickin concurred - see

page 608 -Their Honours said this:

The essential question is as to the effect if any

of the order setting aside the extension of time.

Mr Williams argues that the discharge of the

ex parte order necessarily deprives the registration
that was effected in reliance on that order of its

efficacy as against the liquidator.

C2Tl3/l/CM	115	10/11/89
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The registration is as if it had never been,

it is void ab initio as against the

liquidator. We pause to remark that if the

argument is a good one the registration should

be wholly void, not merely as against the

liquidator. But in any event the consequence

that will follow an order setting aside an

earlier decision will vary from case to case.

So long as the earlier decision stands, and

no stay is operative, it is a lawful decision and

the action taken in reliance upon it is lawful.

It is true that from the moment it is set aside

the order can no longer provide the lawful

what has been done can be undone will depend	justification for further action, but whether
upon the availability of appropriate remedies, to bring about the appropriate relief.

(Continued on page 117)

C2Tl3/2/CM	116	10/11/89
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MR MASON (continuing):  Now, Your Honours, without reading

them, may I cite to Your Honours some passages

where there was a discussion of this same

principle in JACKSON V STERLING INDUSTRIES LTD,

(1987) 162 CLR 612; at page 616, Justice Mason;

pages 619 and 620, Justices Wilson and Dawson;

page 626, Justice Deane and page 621, Justice Brennan

and there is a discussion also of this same

principle in a New South Wales decision, the

APPLICATION OF HARROD, (1978) 1 NSWLR 331 at 333.

Now, Your Honours, that is the argument that

my learned friend's argument proved too much.

Assuming it is a judicial function, what reason is

there why the severability doctrine which has been
applied to administrative warrants should not apply

to judicial warrants? What my learned friend does,

is really raise a number of technical reasons why

a judicial order cannot be severed as to part; if

I may I will come back to those very briefly.

But, there has been a universal acceptance of the

notion of severability with respect to warrants and

nowhere has any of the discussion turned upon the

precise nature of the functionary who grants the

warrant.

BRENNAN J:  Has it ever been thought before this case that

it was judicial in any case?

MR MASON:  Not to my understanding, Your Honour.

Your Honour, in appendix A we refer to two cases.

As to the first - I have a copy of it - it has a

convenient discussion of the American case law and

I do not wish to read it to Your Honours but one thing I would wish to read, or ask Your Honours to read, is on page 282 in the right-hand column; in

American legalese there is a passage from a judgment in CHRISTINE in which a number of policy

reasons are given in support of the severability of
warrants and that reasoning, in my submission, is

equally applicable and equally compelling with

respect to warrants that are granted judicially or

in some judicial function. Redaction appears to be
the American jargon for severance with respect to

warrants, Your Honours.

The Canadian Supreme Court decision, which we

also refer to in Appendix~ relates to listening

device warrants which have all of the same hallmarks

of judicialness as is said to apply in the

LISTENING DEVICES ACT because in the Canadian

Criminal Code section 185 provision is made:

that application for an authorization

shall be made ex parte and in writing to a

judge of a superior court of criminal

jurisdiction -

C2T14/l/JH	117	10/11/89
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or to certain other categories of judge. No

suggestion in the Supreme Court of Canada that

severability could not and should not apply there.

Your Honours, we submit that even if it is judicial, there are three independent bases for

there being a power to vary rather than strike out

in their entirety a warrant which is seen to exceed

jurisdiction but not to be totally without

jurisdiction.

GAUDRON J:  Would not that depend on whether or not the

proceeding in which it was attacked was an appeal

or not?

MR MASON:  We accept that the warrant having been granted

ex parte may be challenged other than by way of

appeal. We accepted that below and do not wish to

move from that position.

GAUDRON J:  But, on the assumption that it is judicial, how

can you end up with a variation other than by way

of appeal?

(Continued on page 119)

C2Tl4/2/JH	118	10/11/89
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MR MASON:  Yes. Well, Your Honour, the answer is one cannot

and, on recollection, that is the reason why, to

overcome at least that problem, the matter was

referred to the Court of Appeal. The challenge,

here, was initially brought in the administrative
law division and because this argument was in the
wind we had it removed to the Court of Appeal where,

at least, each party could have an each-way bet

that we are either in an appellate jurisdiction

or in a review jurisdiction albeit one that has

been removed to a superior branch of the judiciary

but on point of principle	I accept what Your Honour
says.

If it is an appellate jurisdiction, there

is an express statutory power exercised every day

of the week to vary an order rather than to set

it aside ab initio. Taking the harder case against

ourselves, what if it is to be seen as a review

by a judge of equal standing of an order - and, as

T say, we conceded below that the TANNOUS doctrine

meant that because the application had been made

ex parte, that at least gave standing to the

affected party to seek review - of course, it did

not change the grounds of the review and, in that

approach, we say there are three bases for a power

to vary; the first is an inherent power of the Court

and we would just refer Your Honours to the bottom

of page 5 and the top of page 6 of our written

submissions. Sir John Donaldson in the WEA case

that is there cited said, "There is no doubt that
the High Court has power to review and to discharge

or vary any order which has been made ex parte.

This jurisdiction is inherent in the provisional

nature of any order made ex parte".

Your Honours, we refer to cases were certiorari

has gone to quash part only of an inferior judicial

order· and, in addition to the ones that are referred

to there, we have overnight located two High Court

ones if I may just give the Court the reference;

REG V COMMONWEALTH INDUSTRIAL COURT EX PARTE FEDERAL

MISCELLANEOUS WORKERS' UNION, (1971) 125 CLR 502 at

p:ge 510 and BROWN V REZITIS, (1970) 127 CLR 157 at p:ge 173

where it was the Industrial Commission of New South wales.

The second basis for a power to vary without having to
go back to taws is in the rules of the supreme court

itself.· May I hand to Your Honours a copy of Part 40

Rule 9 and its subrules (3) and (4) which are the

relevant subrules applicable, in our submission, to

confer an express power to vary an order which has

not been a final order made after a contested hearing

and, thirdly, Your Honours, the provisions of the

INTERPRETATION ACT, section 32, and in that regard,,

I do not think I wish to develop the submissions which

we have put on pages 4 and 5 of our written submissions

save only to answer one point that my learned friend

raised. He said that the respect that we have for a

judicial order cannot live with a power to sever that

C2T15/1/SH	119	10/11/89
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flows from the prov1s1ons of the INTERPRETATION ACT

with respect to an instrument. We would say, firstly,

why is there any difference in principle between a

judicial order and an kt of Parliament? Is one

necessarily in a different category with respect

to the application - I said Act of Parliament, I

should have said a regulation - of section 32?

But, secondly, to apply section 32 - - -

(Continued on page 121)

C2T15/2/SH	120	10/11/89
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BRENNAN J:  The answer to that must be "Yes", must it not?

MR Y.ASON: Well, certainly some of our earlier argument has suggested

the answer is yes. I am putting this as an alternative.

I am assuming that the earlier argument about judicial

order being inviolate as long as it stands being

rejected.

BRENNAN J:  The statutory interpretation provisions are an

indication by the legislature of what is intended by the legislature in enacting its laws or regulations

made under its laws, but that says nothing as to

what the judge intended when he makes an order.

MR MASON:	Yes, and they are guides to judicial interpretation,
one can accept.

BRENNAN J: Guides to the judge to understand what the legislature

is saying to him.

MR MASON: 

To the judge, yes, but they are guides to a judge -

and this is moving on to my second point if the first is not compelling. They are guides to a judge faced

with a prior Act: be that legislation, regulation or,

we say, judicial order, which has been found to be

approach what is left of the Act. In other words, exceeding a power, as to how that judge should

they are saying, "Do not throw the whole thing out

because Parliament, the Governor, the judge got it

partly wrong, but reverse the rule that presumes that

it is all in or all out in favour of a rule of

severability ."

With respect to a judge who has power to question

the validity of an earlier judicial Act, and that is
the assumption we are making here, there is no reason,

in my submission, why that judge should not be able to

draw in aid section 32. This is not an invitation to

anarchy, as my friend indirectly suggested, because

it is merely a tool whereby the later court, having

found excess of jurisdiction, or failure to notice

the holes, can say, "All right;, granted that that has

happened; what is the effect on what the judge did

earlier? Is it totally bad? No, there is no reason

why it cannot be treated as good for its good parts."

and we would say that the INTERPRETATION ACT, which

refers to instruments as being made or granted, and
the re·scission of instruments, or the repeal of
instruments, as including their rescission, is some

indication that they do extend and there is no reason

why they should not extend to judicial orders that

have gone a bit too far.

Your Honours, my learned friend first of all

said, "There is no power to do it", and we have advanced

three reasons why there is power.	He then said, "There
are two reasons why it cannot be done".	The first was

C2Tl6/l/FK	121	10/11/89
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reliance upon the non-disclosure in an ex parte

order situation. We say that that arises entirely

in a context where there is a deterrence needed to

be offered and we would, without reading the
passage, because my friend read it himself - in

the BRINKS case, (1988) 1 WLR, at page 1357E,

remind Your Honours that a judge who has detected

a failure to make full disclosure in an earlier

ex parte order, has a discretion not to set it

aside, but in an appropriate case to allow it to

continue to operate. So it is not a good analogy.

The second point my friend raised, and it is

in paragraph 2 of his written submissions, was to

refer to the cases which speak about a right

ex debito justitiae to have set aside an order

improperly made. There is, in our submission, an

elision of thought in that submission from my

learned friend. There is a right ex debito justitiae

to make an application to challenge an order

ex parte made. We accept that, but the grounds of

challenge and the affect of that challenge depend
upon what the basis of the challenge is. If it

was a denial of natural justice as the fault, well,

obviously then, the order is irregular and should

be set aside entirely. If the fault of the earlier

ex parte order was an excess of power, well, equally obviously the remedy ought to be to trim it to bring it within power and there is simply nothing in those cases which say that the court is driven to setting

it all aside and allowing whatever has happened in
the intervening time to be treated as nothing,

particularly since, in the fact of this case, he is

saying that applies even to that which was done

under those parts of the warrants which could have

valid and would have been. valid had the judge adverted

to the hole in the Acts.

(Continued on page 123)

C2Tl6/2/FK	122	10/11/89
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MR MASON (continuing):  Your Honours, in paragraph 5 of our

written submissions we address the onus point.

My learned friend challenged, as he had to, that

portion of Mr Justice McHugh's judgment that

said, "You have found an excess of power, but why
should I strike down the whole of the warrants?

You have not satisfied the onus of showing that

the warrants would not have been partially issued

in their severed form, therefore, I will not strike

them out entirely."

We would rely upon that and adopt it but we

would suggest that there is an alternative and,
with respect, better approach which emerges from
the passage in MURPHY V REG in 63 ALJR 427 which

was referred to yesterday by my learned friend.

We say that there is nothing in this passage

that supports a judicial characterization of a

warrant issue but the particular interest we have

in it at this stage is at line Fin the right-hand

column of the joint judgment:

This attack on the warrant was misconceived.

The admissibility of the evidence of Miss X depended on the existence of the warrant, not

on the sufficiency of the grounds for granting

it. In McARTHUR V WILLIAMS where the

validity of a magistrate's warrant of arrest

was in question, Dixon, Evatt and McTiernan JJ,

referring to the necessity for a sworn

information or complaint ..... said:

"But it has never been considered that the
validity of the warrant could depend upon the

nature or sufficiency of the materials upon

which a magistrate granted the warrant if

there was an information on oath before him

which, however irregular, was not a nullity.

Now, we would say that that principle is

capable of application here.	The fact is the
warrant was issued and to invite the Court to go

back and hypothesize about the state of the

warrant-issuing judge's mind, what he or she

would have done had they known about the holes in

the LISTENING DEVICES ACT, is to ignore the

principle that the relevant fact is the warrant
did issue; it was exercised ana, so far as the

police are concerned, they are not requested,

expected or intended to go behind the warrant.

Perhaps a third way of addressing that specific problem is to say that the severability

doctrine, which has been generally accepted,

simply means that one looks at the piece of paper

and if it is in excess one simply pares it down

without trying to second-guess why it would it have

C2Tl7/l/DR	123	10/11/89
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been an excess or what form it would have been

the tapes, can I hand to the Court the form of cross appeal which we would seek to file in order to give effect to the various submissions that

granted had the judge known about the limitations.

have been put and I, of necessity, seek the

appropriate grant of special leave to do so.

With respect to the second alternative order

that is sought: that is simply a way of raising

the matter which we advanced in our notice of
contentions which were given to my learned friend.

With respect to the first, our excuse for the late

filing of it is that, in reality, it was only

yesterday that, in our submission, my learned

friend put his case on the alternative basis that,

in effect, walked right away from Mr Justice McHugh's

judgment and said, "We will deal with it on a hole-

in-the-statute basis". If that is correct the

whole basis for challenging the warrants themselves

has gone, as I submitted earlier.

(Continued on page 125)

C2Tl7/2/DR	124	10/11/89
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MR MASON (continuing):  Your Honours, then turning to the

question of delivery up of the tapes. There is

little I wish to say in addition to what is in

the written submission. In the American case law

referred to in appendix Band in particular the

UNITED STATES V LEON, appears to have moved to

a hardened rule that if the seizure is bona fide

you do not have anyquestion of, what I might call,

a BUNNING V CROSS discretion, and that, in effect,

was the way Your Honour Mr Justice Dawson was

putting it to my learned friend, Mr Horler,yesterday.

If alternatively one still is protentially in a

BUNNING V CROSS situation with respect to an

innocent seizure of material under a warrant, the

passage which we refer to in 141 CLR at page 79,

stresses that the task is one to be weighed at

the trial at the time when the cogency of the

evidence is capable of being assessed. It is the

paragraph in the middle of page 79 in BUNNING V CROSS:

Where, as here, the illegality arises only from

mistake, and is neither deliberate nor reckless,

cogency is one of the factors to which regard

should be had. It bears upon one of the

competing policy considerations, the desirability

of bringing wrongdoers to conviction. If other
equally cogent evidence, untainted by any illegality,

is available to the prosecution at the trial the

case for the admission of evidence illegally

obtained will be the weaker.

If cogency is to be determined at the trial it is

totally inconsistent with that to say, in our

submission, that this evidence which, according to

Australian law,is admissible should be peremptorily

withdrawn from the trial process and not only is

that contrary to the whole principle of BUNNING V CROSS,

but it ignores the fact that the evidence in these tapes

may prejudice the interests of the co-conspirators

because the appellants here are only some of the

co-conspirators who are indicted and against whom

the tape evidence is involved. Appeal book page 41

shows the other persons. And if the tapes are

destroyed, the evidence is still admissible, one

would think, and so the jury is driven to decide the case on the less cogent evidence or the less

satisfactory evidence of a policeman's recollection.

I am assuming, of course, that BUNNING V CROSS is

applied in favour of the Crown as we submit it

certainly would be.

My learned friend relied upon CAVANOUGH's case.

Without taking Your Honours to it we say that there are two points of distinction. First there was a

C2Tl8/l/CM	125	10/11/89
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statutory power to quash, which means a power to wipe the slate clean ab initio, and secondly, as

the Court said in the passages read by my friend,

when one is dealing with a criminal conviction

there is obviously a clear policy favouring the

total restoration of the presumption of innocence in favour of the successful party. So far as the

other cases were concerned, they were all cases in

which there was legal injury, which is absent here,

and in which there was no public interest other

than the interest in restoring to the ultimate

successful party the fruits which the judgment took

away. In the present case there is a clear public

interest in addition, namely the interest which
is reflected in the BUNNING V CROSS rule itself

of bring wrongdoers to book. It is said that there

is no confidence in an iniquity and there is a

whole body of law which builds upon that in relation

to confidential information. That reflects the
public interest in allowing free communication of

evidence and material which discloses crime. The order which my friend seeks would contradict that

approach.

In a passage from HEAVENER V LOOMES read by my

learned friend, 34 CLR 323 and 324, it was said that:

the duty of an appellate Court, when varying or reversing a decree, to place the parties in the

position they would have

otherwise been -

but for the decree or the part varied.

Now it is those last four words which makes plain,

in my submission, that the duty of restitution,

even in a civil case, is to put you back in the

position you would have been had the court below

got it right as the appellate court thinks they

should have , not to put them back taws. (Continued on page 127)

C2Tl8/2/CM	126	10/11/89
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MR MASON (continuing):  If the severability doctrine applies

here, to give the tapes back entirely is to go

beyond - to deny the severability and the validity of the police

activity and to return the tapes, thus destroying

the capacity of the Crown to rely upon them.

GAUDRON J:  There is, though, is there not, Mr Solicitor,

another public interest aspect and that is the interest

of the minister responsible for the administration
of the CUSTOMS ACT in finding out what has happened?

Why is this not a matter in which one would say, "Well,

that minister should", almost on the basis that there

were an interpleader about the possession of the

tapes, "should be given them and it should be his or
her decision as to who may see them and in what

circumstances, or as to what should be done about

them"? I mean, suppose if one came to the view

that somehow a court had unwittingly been involved

in what might amount to some illegality, whether
criminal or otherwise under the Act, why should any
court further involve itself? Why not put it back

with the executive?

MR MASON:  There is no suggestion that the federal executive

is being deprived of this information. The whole

case put against us is it was gathered by a joint

task force.

GAUDRON J:	But presumably it is in the possession of those prosecuting?
MR MASON:	That is because there is a State offence involved

and revealed.

GAUDRON J:  Yes, and if one took the view, if one came to the

view that there was, contra to your submission, an

infringement of section 219, would one not then come

to the view that there was some infringement of

section 219F in so far as it was in the possession

of State prosecuting authorities?

MR MASON:	Well, one answer to that is even if it were, query the remedies available or appropriate to do anything
about that.  That same answer could be given if
federal police illegally took the material without federal warrant. It does not necessarily follow
that it would get its way into the hands of the
federal minister.
GAUDRON J:	No, but there is this extra factor here involved,

that being the involvement of a court through the

granting of a warrant in the chain.

MR MASON:  The grant of the warrant itself does not, 1n any

way, distribute the fruits of the warrant. The fight

over the fruits, if there were to be one, and we are

in trouble because of co-operation and to put against

C2Tl9/l/HS	127	10/11/89
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me a proposition based on lack of co-operation is

difficult to respond to, but, Your Honour, that would

not flow from any act of the judge and would flow

theoretically, at least, whatever the nature of the

breach of the CUSTOMS ACT. Equally with a State

breach, as with a Commonwealth breach, sure there are

now tapes that are in the possession of State

prosecuting authorities, but State and federal police

officers have been called at the committal and will be

called at the trial in support of that prosecution

and, in my submission, it is unreal to be

hypothesising some deprivation of the federal

interest where the whole ethos of the joint force

was to help each other.

GAUDRON J:	And interest in its CUSTOMS ACT?
MR MASON:	Well, it has an interest in its CUSTOMS ACT and

the State has an interest in drug pushers which is superior. In our submission, they are both valid

interests and to say that one is a federal one and

one is recognized by federal statute does not,

itself, resolve any question if the question

occurred.

(Continued on page 129)

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MR MASON (continuing):  There can be conflicts;-there is

a - I will just tell Your Honours - decision

shortly to be handed down in the supreme court as

to whether the federal minister can deport a person

under the MIGRATION ACT when that person is

required as a witness in a State prosecution; so

there can be conflicts but, in my submission, one

should face those when they occur not use them as a

means for reading down provisions or not use them as

a means in support of accused persons. If there

is an interest that Your Honour has put to me - -

GAUDRON J:  It might not be in support of accused persons

at all.

MR MASON:  But, in this case it is.

GAUDRON J:  Well, it might not be, Mr Solicitor. It might

simply be that the decision becomes that of the

minister responsible for the administration of the

Act whether and to what extent the fruits will be
made available to anyone and issues to be

determined - well I mean, perhaps, might be
determined otherwise in any event on the return of

the subpoena. But, the question is whether, if one

came to the conclusion that there was something

wrong in relation to the CUSTOMS ACT and a court

had somehow been involved in it, the court should

not give it to the minister responsible for that Act.

MR MASON:  Yes, well in my submission, one should face that

problem if the minister responsible asks for it and

not in the present case. I do not think there is

anything I could add to what I have said save this:

I am reminded, Your Honours, that in

HILTON V WELLS it was held that section 219F only

relates to lawfully obtained material; that was in

the other Act but the same principle would apply here

so really section 219F would not help the federal

minister in the situation you are putting to me.

BRENNAN J:  That.means. that section 219F presents.

no difficulty in itself to the framing of an order

of the kind that Mr Handley seeks.

MR MASON:  That would be correct too, Your Honour, yes.

We are content to rely upon other difficulties than section·219F which we hope we have persuaded the

Court about.

Your Honours, paragraphs 9 and 10 of our written

submissions I shall let speak for themselves.

Those are our· submissions.

MASON CJ:	Thank you, Mr Solicitor.	Mr Handley?
C2T20/l/JH	129	10/11/89
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MR HANDLEY:  Your Honours, we would start by pointing out

that the Crown in this case made a deliberate

election after we obtained special leave not to

seek special leave itself and the_Court_should

not at this stage, in our submission, grant special

leave to raise ground 1 although we accept that

we have always had a notice of contention - sorry,

for a long time we have had a notice of contention

about ground 2. These matters were canvassed on

the special leave application; the nature of the

order and whether it was a judicial power or not and

the like and,in our submission, there should be no

encouragement given to the executive to as it were

see how the argument goes and then present a special

leave application at the heaEing .. ,-,.,.,.Ln any ev~nt,

Your Honours, we would seek to be protected in the

matter of costs with regard to the order of the

Court of Appeal.

In HILTON V WELLS at page 77, there are references made to earlier decisions of this Court

and of the Federal Court about the nature of - I

am sorry, it is page 67.

(Continued on page 131)

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MR HANDLEY (continued):  They refer to ASTON V IRVINE,

BAKER V CAMPBELL and BREWER V CASTLES as cases where

the power to issue warrants have been held not to

be judicial power.

Your Honours, ASTON V IRVINE was a case, as

Your Honours would remember, under the SERVICE AND

EXECUTION OF PROCESS ACT where the power to issue

a warrant was vested in a magistrate of a State
court as a personae designatae. BAKER V CAMPBELL,

as Your Honours would remember, was a case where

the oower to issue the warrant - I think it was

a CRIMES ACT warrant but, in any event, it was clearly
an administrative or executive warrant and, likewise,

BREWER V CASTLES. It is true, as Mr Justice Brennan

put to my learned friend, that in no case yet has

a court thought that a power to issue a warrant

was a judicial power but there is no case yet where

such a power has been given to a court as such.

This is the first case, to our knowledge, where the power has been given to a court as such.

BRENNAN J: That being a point of distinction between the

present case and HILTON V WELLS, is there any other

material point of distinction?

MR HANDLEY:	Your Honour, apart from the various provisions of the LISTENING DEVICES ACT to which I took the
Court yesterday, there is none but Your Honour
remembers about rules of court and matters of that nature and business in the absence of the parties.
Your Honour is not inviting me to go back over that
I am sure, but we rely upon all those indicia in this part of the LISTENING DEVICES ACT, in support of our argument. It is not simply a conferment of jurisdiction on the court as such; there are
other matters as well although perhaps they are
makeweights, rather than - - -

BRENNAN J: Well, they are incidental to the conferring

of the power on the Court.

MR HANDLEY:  Yes, I would accept Your Honour's position

on that but it is no small thing that the power

is given to the court as such. There was no reason why the New South Wales' Parliament should not have given the power to a supreme court judge as a

personae designatae; no constitutional compulsion
compelled this course. Parliament chose to give
the jurisdictiorr to the court as such and, in our

submission, this is a classic case where the nature

of the power is affected by the repository of the

power. OZONE's case, in our submission, does not

help because by the time OZONE was decided, it was
well established that the then Commonwealth Court

of Conciliation and Arbitration exercised both

judicial and arbitral functions and, therefore,

just because it was called a court, told you nothing

about the nature of the power it was given.

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DAWSON J:  Why is that not so here? You use the words

"given to a court as such"; I do not know what you

mean. It is given to a court but it is a court

which can exercise administrative as well as judicial

functions.

MR HANDLEY:  I accept that, Your Honour. All I was doing

was trying to repel the OZONE attack. There is

nothing to stop the State Parliament by appropriate

language giving a power to a court of a non-judicial

kind.

DAWSON J:  By the words "as such", you mean "as opposed

to giving it to an individual judge". That is all

it can mean.

MR HANDLEY:  Yes, but the question is have they indicated

an intention to give it to the court to be exercised
judicially and, in our submission, we get a very

powerful inference from two matters. If they wanted

to confer a purely administrative power, there was

a very simple way of doing it, giving it to a

personae designatae; a judge is a personae designatae.

(Continued on page 133)

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MR HANDLEY (continuing): They did not do that. Why did they	not do that? They gave it to the court as such
and, in our submission, much turns upon that
distinction. In the end one is searching for the
intention of the Parliament, there being no
overriding constitutional consideration one way or the other.but, in our submission, the considerations favouring the view that the power was intended to be exercised judicially are very strong because of the
way in which the power is conferred and the fact that a well-known method of conferring the power as an administrative power was not followed.
BRENNAN J:	Mr Handley, I think you have probably already

answered this question but I would just like to make

quite sure that is so. Apart from the repository

of the power and provisions which are incidental to the power being reposed in the Court, is there

any aspect of this power upon which you would rely

to identify it as being judicial in character?

MR HANDLEY: Well, I am very happy to repeat myself,

Your Honour, and I think I ought to. There is

provision for service on the Attorney-General.	I
mean, the typical administrative warrant is
entirely ex parte. Here there is a direction for

service on the Attorney-General who can appear and
the court cannot issue the warrant unless it is

satisfied the Attorney has been served and the

Attorney can appear and be heard by the court.

Now, there is a great gulf fixed between a procedure

which contemplates, albeit that the jurisdiction

is going to be exercised in chambers in the absence

of the public, nevertheless, a contradictor is

built in to this statute, a potential contradicto~

in the form of the form of the Attorney-General - - -

BRENNAN J: But, is it a contradictor? Is there any issue?

MR HANDLEY: Why not? I mean, there may not be an issue

but if there is an issue there is a contradictor.

BRENNAN J: Can you postulate the issue?

MR HANDLEY:  We 11 , warrant is too ·wide. I mean , if the

Attorney-General - can I take this case as a basis

of an example? Once the point was taken and came

to the notice of the Attorney that, the CUSTOMS ACT

had, or arguably might have, an impact on the

power of the State court under the LISTENING DEVICES

ACT, it would have been open to the Attorney-General

to have appeared before a supreme court judge,

following service, to say, "Now, there is a problem

here about whether you can issue this warrant in

the form in which the police want it because of the

CUSTOMS ACT." The prudent course would be not to

introduce any reference to the federal police while

the matter is subjudice.

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And, indeed, if the supreme court judge, without any intervention of the Attorney-General,

became aware that there was a question of the

impact of the CUSTOMS ACT on his or her power to
issue a warrant under the State Act, that is a

question arising under the CONSTITUTION or

involving its interpretation and, in my submission,

the judge could have, on his or her own motion,

caused the Cormnonwealth Crown to be notified

and to appear. So, Your Honour, in our submission,

the provisions that the process is initiated by

complaint and that there is a direction for service
on the Attorney-General who is a potential

contradictor and can be heard, do mark this out as

judicial apart from the other matters to which we

have referred.

If I may, perhaps, just again refer to what

we said in-chief.

MASON CJ:  But you do not need to. It is recaptured in the

transcript,Mr Handley.

MR HANDLEY:  I see, very well, Your Honour, but I just give

a reference to ANTON - counsel's judgment

frequently runs away with enthusiasm,

frequently runs away with his judgment.

(Continued on page 135)

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MR HANDLEY (continuing): Can I give a reference to

ANTON PILLAR which I referred to in-chief.	I do
not wish to read it. These are the ex parte
orders in the nature of search warrants.	ANTON PILLAR

V MANUFACTURING PROCESSORS LTD. (1976) Ch 55.

Your Honours- my friend has made the point about

219F andHILTON V WELLS. If it be the fact that

the Court here has been given an administrative

power, so that we cannot directly invoke the

principle of restoration which has hitherto been

laid down by courts which reverse or set aside
erroneous orders and then seek to restore the
litigant to the position he, she or it would have

been in but for the erroneous order,. if those

principles do not apply directly, because this is

not a judicial order, nevertheless in our submission,

they ought to be applied by the court to its

erroneous order even if it is an executive order

and it is inherent in the nature of a court as a

court of justice that it should take steps to prevent

injury to persons, so far as it can, resulting from

erroneous acts of the court, especially if made in

excess of jurisdiction, and in our submission, the

principle of restoration ought to be applied even

if this is characterized ultimately as an administrative

order.

Can I in aid of that take the Court to a very brief

passage in a case dealing with the approach of a

court to the conduct of its officer, in this case

a trustee in bankruptcy. And it is the doctrine of

EX PARTE JAMES which may ring a bell. I will read

the headnote, not because the facts are important,
but just because I think until one sees the background,

the statement of principle may not make much sense.

A trustee in bankruptcy sought to recover money which

had been paid by way of a losing bet. The House of

Lords had just held that such action lay in having

regard to the terms of the gaming and betting legislation

in England of the 1840s~

BRENNAN J: What case are we looking at Mr Handley?
MR HANDLEY:	SCRANTON'S TRUSTEE V PEARSE.

BRENNAN J: And we are looking at a headnote, are we?

MR HANDLEY: I am looking at the headnote. Sorry, Your Honour.

Page 87.

MASON CJ: Where it applied the rule in EX PARTE JAMES or

the doctrine of EX PARTE JAMES?

MR HANDLEY:  Yes. I am sorry,Your Honours. Now on page 87,

half-way down the headnote:

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The defendant took the point that such an

action ought not to be brought by an officer

of the Court, as the claim, however legal, was

practically dishonest, and that all Courts must

recognize and apply the rule in EX PARTE JAMES.

And then there was some procedural questions -

Held by Astbury J., that there being no special

circumstances in the case, it was neither honourable

nor high-minded for the trustee in bankruptcy,

as an officer of the Court, to bring or maintain

such an action, and that all further proceedings

must therefore be stayed.

And his decision was reversed by the Court of Appeal on the basis that all the trustee was doing was pursuing a legal right to recover a sum of money

for the benefit of creditors and that the judge

had misapplied the principle. Now we are not

concerned with the application of the principle,

but we are concerned with the principle itself and

Mr Justice Astbury took it from a decision of the

Court of Appeal in EX PARTE SIMMONDS at page 94 and

it occupies most of the page and I would seek to

read it:

A rule has been adopted by Courts of law -

This is EX PARTE SIMMONDS Lord Esher -

for the purpose of putting an end to litigation,

that, if one litigant party has obtained money

from the other erroneously, under a mistake

of law, the party who has paid it cannot afterwards

recover it. But the Court has never intimated

that it is a high-minded thing to keep money

obtained in this way; the Court allows the party

who has obtained it to do a shabby thing in

order to avoid a greater evil, in order, that is,

to put an end to litigation. But James L.J. laid
it down in EX PARTE JAMES	that, although the

Court will not prevent a litigant party from acting in this way, it will not act so itself,

and it will not allow its own officer to act so.

It will direct its officer to do that which any

high-minded man would do, viz., not to take

advantage of the mistake of law.

Now we seek to say here that the supreme court,

in issuing these ex parte warrants, made a mistake

of law.

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MR HANDLEY (continuing): Since there is no challenge to the finding of inconsistency, but there is, of course,

a challenge to the extent of it, that much is now

common ground:

This rule is not confined to the

Court of Bankruptcy. If money had by

a mistake of law come into the hands

of an officer of a Court of Common Law,

the Court would order him to repay it

so soon as the mistake was discovered.

Of course, as between litigant parties,

even a Court of Equity would not prevent

money had come into the hands of a

a litigant from doing a shabby thing.

receiver appointed by a Court of Equity

through a mistake of law, the Court

would, when the mistake was discovered,

order him to repay it. A trustee in

bankruptcy has always been treated as

an officer of the Court of Bankruptcy,

and the Court will order him to act

in an honourable and high-minded way.

Now, Your Honours, in our submission - I mean, some of the

rhetoric, of course, we do not suggest is applicable

here, but there is question of the supreme court in

a sense taking advantage of the mistake of law made

by it~ members in issuing these warrants and it is

the supreme court that is going to be the court which

will try the appellants for these criminal offences

and, in our submission, there is a problem about that,

that, "True it is we made a mistake, true it is we

should never have issued these warrants, true it

is it is beyond our jurisdiction to do it, but we

are not going to rectify our mistake, although we

have the power to retrieve the results of our error,

we are not going to do it, and we are going to sit

by and allow the prosecution to use the fruits of

our mistake to convict you".

In our submission, there is a problem about that

and there are public policy factors inherent in the

position of the court as having contributed or caused
or been involved in the mistake,an excess of

jurisdiction,which is not a factor referred to in

BUNNING V CROSS and which, in our submission, requires

the Court in this case to act to rectify the mistake
as far as it can and the only way it can do that is
to make the order for delivery up or destruction which
we seek. Your Honours, I do not know whether I should
trouble the Court in reply on the INTERPRETATION ACT,

but if I could perhaps just merely mention sections

of the INTERPRETATION ACT which refer to instruments

which, in our submission, indicate that they are of

a legislative nature. I will only refer to one of

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them specifically and then I will just mention the

sections and pass from the point, but section 10 says:

Words and expressions that occur 1n

an Act or instrument that amends or

repeals some other Act or instrument

have the same meanings as they have

in the other Act or instrument.

Now that, in our submission, has no application to

judicial orders. We would also refer to section 25,

sectin 26, in addition to section 10, and section 35

which talks about headings in instruments.

Your Honours, my friend relied upon the reference in

MURPHY V REG to the earlier High Court judgment -

I think it is in WILLIAM's case. I do not want to

go back to it or reopen MURPHY V REG, but we do not

invite the Court to hypothesize about the judge's

reasoning in the sense - our submission is that these orders are fundamentally flawed and the duty of the

Court is to set them aside. It may be in an injunction

case you would start again and issue a new order based on the true position, but these orders are

so fundamentally flawed that one does not hypothesize

about the judge's reasoning. One simply notes the

extent of the flaw and then the order should be

vacated being ex parte orders. It is my friend who

is hypothesizing about the judge's reasoning, not us,

we submit.

(Continued on page 139)

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MR HANDLEY (continuing): In regard to orders which are

fundamanetally flawed so as to be liable to be

set aside ex debito justitiae, my friend correctly

pointed out that hitherto the case law only

illustrates that principle, or fundamentally

illustrates that principle in terms of denial of

natural justice, but, of course, denial of natural

justice is jurisdictional. If it were an administrative

officer or an inferior court, a denial of natural

justice has been held to go to jurisdiction. Now,

our points here go to jurisdiction and while no natural

justice point arises, in our submission, we are as

much entitled, ex debito justitiae, to have these

orders set aside if they are judicial as if it was

a final order made in denial of natural justice.

My friend argues that section 219B(2) does not

apply to the State police as a matter of construction,

and reminds the Court about BRADKEN's case. I would

wish to remind the Court about the STEEL RAILS case,

if I can find it, but Your Honours, having looked at

section 114 of the CONSTITUTION recently will be
familiar with the STEEL RAIL cases, which not only
dealt with section 114 of the CONSTITUTION, but also

dealt with the question of whether the CUSTOMS ACT

bound the Crown in right of the States as a matter of

construction, and it was held in those cases -can I just

merely give the Court the references to the cases:

RV SUTTON, 5 CLR 789, and ATTORNEY GENERAL OF NSW

COLLECTOR OF CUSTOMS, 5 CLR 818. So, what has happened

here, Your Honours, is that into an Act which binds

the Crown in right of the States as a whole, the national

Parliament has inserted this division dealing with

use of listening devices. Now, it is true that it does

not directly deal with the Customs procedures and the
like, or the liaibility for the payment of duty, it

deals with prohibited imports. We do start, in our

submission, on a firm foundation when we draw attention

to the fact that this Act, generally speaking, binds
the Crown in right of the States, and does so as a

matter of necessary implication, there being no section

in the Act which says that it binds the Crown in right of the

States.

We then submit, Your Honours, that 219B(2) is

too clear for argument as to its reach. The obvious

group of persons to which 219B(2) is directed include

State police forces, and to construe 219B(2), to

read it down, as my friend submits,

would obviously, in our submission, go against the

obvious intention of the section. Not every State

police force in the last umpteen years has been

regarded as of the same quality and integrity as

the federal police, and, in our submission, in terms

of the PROVINCE OF BOMBAY case, the obvious purpose
of 219B(2) would be frustrated if State police were not

within the command of the section.

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MR HANDLEY (continuing):  The necessary intention is

disclosed, in our submission, to bind State police

and there is, of course, no constitutional question

involved and the extent to which the Court might

relax the PROVINCE OF BOMBAY principles in an

appeal pending from Western Australia, of course,

our position is so much the stronger.

Perhaps if I just should recap LO the

STEEL RAIL cases.: there the High Court made it

plain that if the CUSTOMS ACT did not bind the

State Crown the scheme of the CUSTOMS ACT would be

shot to pieces. Now, it is unthinkable that a

State government would embark upon the importation of heroin but the fact is that, in our submission, it is sufficiently clear that section 219B catches

as a matter of construction State police.

Your Honours, CAVANOUGH's case, 53 CLR,

was a case about a conviction but without going

back to it there are references in CAVANOUGH's case

to civil cases and, Your Honours, the authorities
on the effect or reversal of civil judgements

are collected in an article in the Law Quarterly

Review by D.M. Gordon, QC and it is (1958) 74 LQR

517 a_t page 521_ an.d :following and, Your Honours, the

principles are exactly the same as those applied to

the reversal of criminal convictions in

CAVANOUGH's case and, of course, that is made

implicitly clear by our reference to SIMPSON's case

in Croke' s Reports·.

Your Honours, I would only wish to say this

about BUNNING V CROSS: we have never said that there

was any recklessness or deliberate conduct on the

part of the State police in this matter but we have

never made any such concession with regard to the

federal police and, in our submission., it is

certainly a live question at this stage on what we

know or suspect that the federal police at some level
may or may not involve the direct subordinate

officers who were actually involved in listening

through these listening devices but at some level

there has been deliberate or reckless disregard of
the CUSTOMS ACT by the federal police because
the federal Code has been bypassed by going through
the State statute and, in our submission, that is
a significant factor for the trial judge to the

extent to which this evidence may have to be given by federal police officers and I say no more about

that. On this occasion my learned junior has

nothing for me to add. If the Court pleases.

MASON CJ:	Thank you, Mr Handley.	Mr Horler?
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MR HORLER:  If the Court pleases, for our part we can

be very short.

MASON CJ:  Well, I think you ought to come across to

the rostrum.

MR HORLER:  Your Honours, we adopt what Mr Handley has had

to say in reply and for our part do not wish to
add anything. In relation to the notice of

cross-appeal our position is identical but I

cannot pretend that we were taken by surprise, even

of the lateness of it, given the notice of

contention that we had been served with a long time

ago. Apart from that I have nothing to add.

MASON CJ:	Thank you, Mr Horler.
MR HANDLEY:	There is one matter I overlooked, Your Honour.

We do submit that section 219B(l) and (2)

create criminal offences and the doctrine of

statutory prohibitions creating cotmnon law

misdemeanours is considered in

REG V HORSEFERRY ROAD JUSTICES, (1987) 1 QB 54,

and there is an anlaysis of the cotmnon law

principles going back to Hawkins and Coke

and so on.

MASON CJ:  Thank you, Mr Handley. The Court will consider

its decision in this matter.

AT 11.43 AM THE MATTER WAS ADJOURNED SINE DIE

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