New South Wales Crime Commission v Vuletic

[2005] NSWSC 614

Reported Decision: 64 NSWLR 301
192 FLR 245
[2006] ALMD 4819

New South Wales

Supreme Court

CITATION:	New South Wales Crime Commission v Vuletic and Ors [2005] NSWSC 614
HEARING DATE(S):	7 April 2005
JUDGMENT DATE :	24 June 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Notice of Motion dismissed; 2. Each party to pay own costs of Notice of Motion.

CATCHWORDS:	PROCEEDS OF CRIME - proceedings under Criminal Assets Recovery Act 1990 - admissibility of telephone intercept material - meaning of "employee of the carrier" in s.47(b) Telecommunications (Interception) Act 1979 (Cth) - irregularity in execution of warrant - discretion to admit evidence under s.75 Telecommunications (Interception) Act 1979 (Cth) - evidence admitted.
LEGISLATION CITED:	Criminal Assets Recovery Act 1990 Telecommunications (Interception) Act 1979 (Cth) Telecommunications Act 1997 (Cth) Drug Misuse and Trafficking Act 1985 Acts Interpretation Act 1901 (Cth)
CASES CITED:	Employment National Ltd v CPSU (2000) 173 ALR 201 John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137 Salomon v Salomon & Co Ltd [1897] AC 22 Macleod v The Queen [2003] 214 CLR 230 CSR Limited v Wren (1997) 44 NSWLR 463 Deputy Commissioner of Taxation v Clark (2000) 57 NSWLR 113 R v PLV (2001) 51 NSWLR 736 Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Grollo v Palmer [1995] 184 CLR 348 Lawrence v NSW Police Service (2004) 144 A Crim R 396 Wood v Beves (1997) 92 A Crim R 209 Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 O'Brien Glass Industries Limited v Cool & Sons Pty Limited (1983) 77 FLR 441 Bunning v Cross [1978] 141 CLR 54 Ridgeway v The Queen [1994] 184 CLR 19 R v Bunting and Wagner (No. 5) [2003] SASC 253 R v Rich (Victorian Court of Appeal, 17 December 1997, unreported, BC9707105) McCleary v Commonwealth Director of Public Prosecutions (1998) 157 ALR 301 R v Lam (2002) 135 A Crim R 302
PARTIES:	New South Wales Crime Commission (Plaintiff) Steven Vuletic, Nashwan Toma, David Scibberas (Defendants)
FILE NUMBER(S):	SC 10451 of 2004
COUNSEL:	Mr I Temby QC and Mr P Singleton (Plaintiff) Mr A Howen (Defendant - Toma)
SOLICITORS:	New South Wales Crime Commission (Plaintiff) Gregory J Goold (Defendant - Toma)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Johnson J

24 June 2005

10451 of 2004 New South Wales Crime Commission v Vuletic and Ors

JUDGMENT

1 JOHNSON J: By Summons, the Plaintiff, the New South Wales Crime Commission, seeks orders pursuant to s.27 Criminal Assets Recovery Act 1990 (“CAR Act”) against Steven Vuletic, Nashwan Toma and David Andrew Scibberas. With respect to Nashwan Toma (“the Defendant”), an order is sought that he pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived from his illegal activities which are said to have taken place in the period from 18 February 1998 to 19 February 2004.

2 By Notice of Motion filed in the principal proceedings, the Defendant moves the Court for the following orders:

(a) a declaration that evidence obtained pursuant to the execution of warrant number EO2571/00/00 (“the subject warrant”) issued on 18 November 2003 by Narelle Bell, a nominated AAT member, was obtained in contravention of the Telecommunications (Interception) Act 1979 (Cth) (“TI Act”);

(b) a declaration that any record obtained from the execution of the subject warrant is inadmissible in these proceedings.

3 The determination of issues raised in the present application will involve consideration of whether there has been any breach of the TI Act in the execution of the subject warrant and, if so, whether evidence obtained pursuant to the execution of that warrant ought be admitted in any event by application of s.75 TI Act.

The Facts

4 The Affidavit of Timothy James O’Connor sworn 23 March 2005 was read by the Plaintiff on this application. That Affidavit reveals the following facts. Optus Mobile Pty Limited (“Optus Mobile”) is a “carrier” within the meaning of the TI Act. On 1 July 1997, a “carrier licence” within the meaning of the Telecommunications Act 1997 (Cth) (“T Act”) was issued to Optus Mobile.

5 Optus Mobile is a wholly owned subsidiary of SingTel Optus Pty Limited (“SingTel Optus”). Optus Administration Pty Limited (“Optus Administration”) is also a wholly owned subsidiary of SingTel Optus. There are numerous other companies that are wholly owned subsidiaries, joint venture entities or other entities of SingTel Optus, including other companies that are carriers within the meaning of the TI Act. Almost all of the employees within the Optus Group of companies are employed by Optus Administration.

6 The employees of Optus Administration perform work needed by the various members of the Optus Group of companies, including Optus Mobile. Of present relevance is the fact that the activities of Optus Mobile when it is intercepting telecommunications under the TI Act are undertaken, on its behalf, by persons employed formally by Optus Administration.

7 During the period 18 November 2003 to 15 February 2004, Steven Vuletic was the user of a telecommunications service within the meaning of the TI Act, being mobile telephone service 0412 713 221 (“the service”). On 18 November 2003, the subject warrant was issued to the Plaintiff authorising interceptions of communications made to or from the service pursuant to s.46 TI Act. During the period 18 November 2003 to 15 February 2004, communications to and from the service passed over a “telecommunications system” within the meaning of the TI Act operated by Optus Mobile. The warrant was in force for the whole of the period 18 November 2003 to 15 February 2004.

8 On 2 April 2004, Mr Paul O’Brien, company secretary of Sing Tel Optus, issued a certificate pursuant to s.61 TI Act with respect to the subject warrant. Mr O’Brien certified certain facts:

“… which I consider are relevant to acts or things done by or in relation to employees of Optus Administration Pty Limited (ACN 055 136 804) (being the employer of all staff of Optus Group companies) (“Optus Employees”) in order to enable the execution of a warrant issued under section 46 of the Interception Act.”

The certificate included the following statement:

“2. Between the period commencing on 18 November 2003 and ending on 16 February 2004, Optus employees did acts and things of a professional and technical nature that were necessary to connect the telecommunications service specified in the Warrant with the monitoring centre of the agency to commit a person or equipment located at the monitoring centre:

(a) to be aware of or, in the case of equipment to be activated by, any communication over that telecommunications service; and

(b) to listen to and record communications over that telecommunications service.”

9 The Affidavit of Timothy James O’Connor sworn 23 March 2005 revealed the following additional matters:

(a) during the period 18 November 2003 to 15 February 2004, interception of communications made to or from the service took place in accordance with “interception capability plans” (“IC plans”) within the meaning of the T Act;

(b) pursuant to s.329(1)(a) T Act, Sing Tel Optus has established a law enforcement liaison unit for the purpose of providing interception and special assistance to law enforcement agencies, including for Optus Mobile, and that unit undertakes numerous functions including the implementation of warrants;

(c) in accordance with s.329(1)(c) T Act, the IC plans set out a list of the employees with responsibility for interception and other relevant matters;

(d) the interceptions of communications made to and from the service during the period 18 November 2003 to 15 February 2004 took place as a result of action taken by persons listed in the IC plans;

(e) pursuant to s.329(3) T Act, the Plaintiff must treat the IC plans as confidential and must ensure that they are not disclosed to any person or body not referred to therein without the written permission of the carrier.

10 On 19 February 2004, on the application of the Plaintiff, the Court made a restraining order pursuant to s.10 CAR Act in respect of all the interests in property of the Defendant, Nashwan Toma. The restraining order was based on alleged serious crime-related activities of the Defendant, namely supplying a prohibited drug contrary to s.25 Drug Misuse and Trafficking Act 1985 (“DMT Act”). In making the restraining order application, the Plaintiff relied on evidence obtained by interceptions pursuant to the subject warrant.

11 As a result of evidence obtained by these interceptions, police applied for and were granted a search warrant to enter and search the premises of the Defendant at 10/1A Mascot Avenue, Eastlakes, New South Wales. On 20 February 2004, members of the NSW Police executed the search warrant. During the execution of the search warrant, it is alleged that members of the NSW Police located and seized, inter alia, a small amount of cannabis and 161 ecstasy tablets. The Defendant was arrested on 20 February 2004 and was charged with:

(a) supply prohibited drug contrary to s.25(2) DMT Act;

(b) supply prohibited drug contrary to s.25(1) DMT Act;

(c) two counts of possess prohibited drug contrary to s.10(1) DMT Act.

12 At the time of applying for the restraining order, the Plaintiff also applied, by way of summons, for a proceeds assessment order against the Defendant pursuant to s.27 CAR Act. The alleged serious crime-related activity of the Defendant upon which the Plaintiff relied to ground a proceeds assessment order against him was supply prohibited drug contrary to s.25 DMT Act. The Plaintiff seeks to tender evidence obtained by interceptions under the subject warrant in support of its allegation that the Defendant engaged in a serious crime-related activity.

13 The Plaintiff alleges that the evidence obtained by interceptions under the subject warrant demonstrates that the value of the proceeds derived from the illegal activities of the Defendant, which took place within the relevant six-year period within the meaning of s.27 CAR Act, exceeded the sum of $100,000.00. The Plaintiff accepts that, but for the evidence obtained by interceptions under the subject warrant, it is unable to quantify the proceeds allegedly derived from the illegal activities of the Defendant.

14 At this point, it is appropriate to refer to relevant statutory provisions.

Relevant Provisions of the TI Act

15 Section 7 TI Act provides that a “a person shall not … intercept … a communication passing over a telecommunications system” unless (amongst other exceptions) the interception in question is “the interception of a communication under a warrant”: s.7(2)(b) TI Act.

16 Section 63(1) TI Act provides:

“Subject to this Part, a person shall not, after the commencement of this Part:

(a) …

(b) give in evidence in a proceeding;

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

17 The subject warrant was issued pursuant to s.46 TI Act and attracts the limitation imposed by s.47(b) of that Act which provides:

“Limit on authority conferred by warrant

47. A warrant issued under section 45, 45A, 46 or 46A does not authorise communications to be intercepted while they are passing over a telecommunications system operated by a carrier unless:

(a) notification of the issue of the warrant has been received by or on behalf of the Managing Director of the carrier under subsection 60 (1); and

(b) the interception takes place as a result of action taken by an employee of the carrier and by the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police for the purpose of enabling the warrant to be executed.” (emphasis added)

18 Section 75 TI Act provides:

Giving information in evidence where defect in connection with warrant
75(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B or 11C), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:


(a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and

(b) in all the circumstances, the irregularity should be disregarded.

(2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity):

(a) in, or in connection with the issue of, a document purporting to be a warrant; or
(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.”

Relevant Provisions of T Act

19 Section 5 T Act provides that “carrier” means:

(a) a carrier (within the meaning of the Telecommunications Act 1997 ) or;

(b) a carriage service provider (within the meaning of that Act).

20 Section 7 T Act provides that a “carrier” is “the holder of a carrier licence” which in effect is a licence to operate a telecommunications network. Part 15 (ss.317-332R) T Act provides for co-operation by carriers with law enforcement agencies. The definition of “agency” in s.7 T Act encompasses the Plaintiff. A carrier is obliged to prepare an IC plan each year and lodge it by 1 July: Part 15, Division 3, T Act. The contents of an IC plan are governed by s.329 T Act. Section 329(1)(c) provides that an IC plan must include “a list of employees of the carrier … with responsibility for interception …”. Accordingly, the T Act provides that interceptions pursuant to the TI Act are to be planned in advance and that the plan is to include a list of the “employees of the carrier” to be used for telephone interception work.

Alleged Breach of TI Act

21 In this case, the Defendant submits that s.47 TI Act was breached because the relevant interceptions occurred as a result of actions taken by employees of Optus Administration (which is not a “carrier”) and not Optus Mobile (which was the “carrier” relevant to the present case).

22 The Plaintiff contends that the employees of Optus Administration who undertook the relevant work were employees of the carrier within the meaning of that term in s.47 TI Act. The Plaintiff submits that the TI Act has not been breached in this case and evidence of interceptions made under the subject warrant should be admitted. However, if the Defendant’s submission with respect to s.47 TI Act is correct, the Plaintiff submits, in the alternative, that the Court should exercise its discretion to admit the evidence in this case pursuant to s.75 TI Act.

Competing Arguments Concerning Meaning of “An Employee of the Carrier”

23 Mr Temby QC, for the Plaintiff, submits that the words “an employee of the carrier” in s.47 TI Act should be construed in a pragmatic way and in light of the history of the TI Act itself. The phrase “employee of the carrier” is not defined in the TI Act. The Plaintiff submits that the phrase should be given a purposive construction in accordance with s.15AA ActsInterpretation Act 1901 (Cth). The Plaintiff contends that, in reality, the question whether relevant acts were performed by an “employee” of the carrier is a question of fact to be determined in the circumstances of the particular case.

24 The Plaintiff submits that Parliament’s purpose in requiring an employee of the relevant carrier to be involved in the interception can be discerned from the legislative history of the TI Act, and s.47 of that Act. The TI Act, as originally enacted in 1979, did not include s.47. In its early form, the TI Act provided for the Comptroller-General of Customs and the Director-General of Security to execute telephone interception warrants. Following an amendment, Customs and the Comptroller-General were replaced by the Australian Federal Police (‘AFP”) and its Commissioner. It was necessary that the Managing Director of the Australian Telecommunications Commission (“Telecom”) be informed of the issue and revocation of warrants and be provided with copies of warrants: ss.15(1), (4), s.25(1).

25 According to the Final Report of the Royal Commission of Inquiry into Alleged Telephone Interceptions, April 1986 (“the Stewart Royal Commission”), telephone interceptions pursuant to warrants issued by judges at the request of the AFP under the TI Act, in practice, were executed by way of Telecom diverting relevant telephone calls to the AFP which then recorded the calls. The Stewart Royal Commission also reported that NSW Police and the AFP had unlawfully intercepted and recorded various telephone calls by trespassing upon and manipulating Telecom’s infrastructure in the field: Chapter 7, Volume 1, Final Report, Stewart Royal Commission. The Royal Commission was emphatic, however, that telephone interception was a useful policing tool: paragraphs [16.18]-[16.23], Volume 1, Final Report, Stewart Royal Commission.

26 The recommendations of the Stewart Royal Commission included the following:

(a) that telephone interception should be available for the investigation of a range of offences beyond narcotics matters: paragraphs [16.26], [16.60.2];

(b) that the National Crime Authority (“NCA”) and State and Territory police forces should be able to apply directly for telephone interception warrants and to conduct interception operations independently of the AFP: paragraphs [16.26], [16.60.7];

(c) that in appropriate cases, the judge issuing a warrant should authorise the interception to be made directly by police (state, federal and territorial) without recourse to Telecom; paragraph [16.60.5].

27 Section 47 was inserted into the TI Act by the Telecommunications (Interception) Amendment Act 1987. It is apparent that the report of the Stewart Royal Commission lay behind a number of the amendments made at that time to the TI Act. The Second Reading Speech of the Attorney-General, Mr Lionel Bowen, in respect of the Telecommunications (Interception) Amendment Bill 1986 (the precursor to the 1987 Act) included the following statements (Hansard, House of Representatives, 4 June 1986, page 4591ff):

“The Bill also takes into account some of the recommendations relating to the Telecommunications (Interception) Act 1979 contained in Volume 1 of the report of the Royal Commission of Inquiry into Alleged Telephone Interceptions – known as the Stewart Royal Commission which I tabled in this House on 1 May 1986.
The provisions require judicial warrants, which will be available only where a serious trafficking offence that is the subject of an investigation by the NCA is involved. Applications will normally be required to be in writing, supported by information on oath. In cases of urgency, however, a warrant can be issued on an application made by telephone. A warrant may be granted in respect of a telecommunications system situated anywhere in Australia and will remain in force for a maximum period of 90 days. It will authorise approved persons to intercept, that is, listen to or record, communications passing over the service specified in the warrant. The Bill provides that a warrant will not authorise any entry upon premises and will authorise interceptions to be carried out only through Telecom.

Under proposed Part VII, warrants will be issued by State and Northern Territory Supreme Court judges … . As with the National Crime Authority, warrants will not authorise entry on to premises or any interception other than through Telecom …
The Commission also recommended that a judge issuing a warrant should be able, in appropriate cases, to authorise a direct interception without recourse to Telecom. The Government has not accepted that recommendation. As indicated already, the Government has taken the view that the powers to be conferred on State authorities and the National Crime Authority should be exercisable only through Telecom.”

28 The Plaintiff submits that the legislative intent was to ensure that interceptions were to be effected “only through Telecom”, and not by police. The relevant contrast was, therefore, between Telecom and the police, not between Telecom, the organisation, and Telecom’s employees.

29 As originally enacted, s.47 provided that warrants had to be executed by “an officer of the [Australian Telecommunications] Commission” (Telecom). Given the legislative history and the Second Reading Speech, the Plaintiff submitted that it was clear that this provision was intended to give effect to a policy of ensuring that the organisation, Telecom, rather than police, effected interceptions. The Plaintiff contends that there is no basis for concluding that Parliament’s reference to officers of Telecom was intended especially to confer a role on those officers as individuals. Rather, it is submitted that it was merely a mechanism for conferring on Telecom the role of effecting interceptions.

30 Later amendment to s.47 saw “officer of the Commission” become “employee of the Corporation” in 1988, and then “employee of the carrier” in 1989. It was only in 1993 that provision was made in s.47 TI Act for the involvement of the AFP.

31 Against this background, the Plaintiff submitted that the purpose of requiring interceptions to be executed by employees of carriers was to ensure that the carriers, rather than State police or other law enforcement agencies, effected interception. The phrase “employee of the carrier” should be given a construction which advances that purpose. The Plaintiff submitted that the phrase should be applied to the whole employment situation to determine whether or not a particular person was an “employee of the carrier” within the meaning of s.47 TI Act. In circumstances where one company within a corporate group (the labour hire company – Optus Administration) employs all the workers used by the corporate group, the employees of another company in the group (the operations company – Optus Mobile) should be taken to be those employees of the labour hire company, whose responsibilities are or include doing work for the operations company as if they were employees of that company. In the present case, the Plaintiff submitted that the Optus Group acts as if it were a single entity, within which Optus Administration plays a role analogous to a personnel or human resources department.

32 In support of this pragmatic construction, the Plaintiff relied upon the decision of Einfeld J in Employment National Ltd v CPSU (2000) 173 ALR 201, a case dealing with the proper construction of the Workplace Relations Act 1996 (Cth). At page 221 (paragraph 77), Einfeld J said:

“What is essentially a question of fact should not be dressed up as a question of law. For fundamental to the resolution of the transmission question is to discover whether in fact EN employees did substantially similar tasks to those of CES/EAA for whose benefits the awards were originally made, as a means of determining whether EN was continuing the same ‘business’. This exercise calls, at least at a first step, for an examination of whether EN's employees are undertaking in fact substantially identical tasks to those of the employers originally bound by the awards. … The issue raised by the legislation is not whether the businesses were structurally different, but whether the workers are doing, and therefore the employer is delivering, the same or different work.”

33 The Plaintiff submitted that such an approach, in the present case, would accord with the legislative purpose of the requirement in s.47 TI Act that interceptions be effected by employees of carriers. It was contended that an interpretation of the phrase “employee of the carrier” which focused upon whether a person performed relevant tasks as if an employee of the carrier, rather than upon the formal employment relationship, was also consistent with related provisions of the T Act, in particular the requirement that carriers submit IC plans. The evidence before me revealed that single IC plans have been submitted in respect to Optus Mobile and other members of the Optus Group. The plans have listed certain employees of Optus Administration as if they were employees of various Optus carriers, including Optus Mobile. It is employees so nominated by Optus Mobile (through the agency of Optus Sing Tel) who were used to effect interceptions under the subject warrant. Thus, the Plaintiff submitted, as far as the relevant carrier and its surrounding corporate group were concerned, the people used to effect the interception were employees of the carrier Optus Mobile.

34 Upon a proper construction of s.47 TI Act and an understanding of the facts of this case, the Plaintiff submitted that, although the interception was effected here by persons who were employed formally by Optus Administration, the relevant acts ought be treated, for practical purposes, as being performed by employees of Optus Mobile and, accordingly, no breach of s.47 had occurred.

35 Mr Howen, Counsel for the Defendant, submitted that a strict approach to construction ought be adopted with respect to the TI Act, applying the principles in John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 95ff; Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 297-9 and Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137 at 142ff, 152, 154ff. In Taciak, Sackville J said at 299:

“Parliament itself has therefore recognised, in the context of telecommunications, the fundamental importance of protecting individual privacy, although also recognising that the value of privacy can be overridden where it conflicts with other significant community values, provided that detailed safeguards are observed.
The recognition and protection of privacy in the Interception Act, in my view, justifies a restrictive approach to the construction of the statutory exceptions to the prohibitions on the interception of telecommunications and on the use of lawfully obtained intercept information. There is room for argument as to whether the principle of construction articulated in Coco [(1994) 179 CLR 427 at 436-437] should be applied, with all its rigour, to the definition of ‘permitted purpose’ in the Interception Act. But where there is genuine doubt as to whether the statutory language authorises the use of intercept information for a particular purpose, that doubt should be resolved in favour of a narrow, rather than a broad construction of the statutory authorisation.”

36 The Defendant submits that the word “employee” ought be given its ordinary meaning involving a contract of employment between one person and another. A broader, pragmatic meaning ought not be given to the word. The Defendant submits that this is especially so where there are separate corporations involved and given the separate legal personalities of those corporations: Salomon v Salomon & Co Ltd [1897] AC 22; Macleod v The Queen [2003] 214 CLR 230 at 239-240 (paragraph 28), 250 (paragraph 75); CSR Limited v Wren (1997) 44 NSWLR 463 at 485.

37 It was argued that, if Parliament intended in s.47(b) TI Act merely that persons involved in interception were to be associated with the carrier, as opposed to the police or law enforcement agency, the legislation would have referred to a wider class of persons, for example, “employees, contractors and agents” or “representatives of the carrier” or “persons associated with the carrier” and not an “employee” of the carrier.

38 The Defendant submits that the pragmatic approach advanced by the Plaintiff would offend against the principles of statutory construction referred to in Doe, Serratore and Taciak.

39 The Defendant emphasised the fundamental objective of the TI Act to protect the privacy of communications passing between users of telecommunications systems (Taciak at 297). To achieve this objective, the Defendant submits that the TI Act put in place strict controls concerning the interception of communications, including the class of persons who may undertake that task, and the use of that intercepted material. Persons who are employees, in the ordinary sense of the word, are subject to the direct control of their employer, the carrier. This statutory scheme restricts the persons who will be involved in interception, and emphasises the statutory objective of maintaining privacy of communications. The Defendant contends that this construction is, in fact, a purposive one for the purposes of s.15AA Acts Interpretation Act 1901 (Cth).

The Proper Construction of the Words “An Employee of the Carrier”

40 The contemporary approach to statutory interpretation is literal but not literalistic and requires words to be construed in their total context: Deputy Commissioner of Taxation v Clark (2000) 57 NSWLR 113 at 141 (paragraph 115). The task of the court is to determine what Parliament meant by the words used, not to determine what Parliament intended to say: R v PLV (2001) 51 NSWLR 736 at 743 (paragraph 82). In Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at 384 (paragraph 78):

“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction [for example, the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities: Coco v The Queen (1994) 179 CLR 427 at 437] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

41 These principles of construction have been applied in examining the meaning to be attributed to the word “employee” in the Anti-Discrimination Act 1977. In Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232, Spigelman CJ (Stein JA and Davies AJA agreeing) said at 248 (paragraph 82):

“The word ‘employee’ has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another. In particular statutes the word ‘employee’ will often be construed to extend to an independent contractor, even in the absence of an express statutory extension of a character contained in the Anti-Discrimination Act. The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part.”

42 In Commissioner of Police v Estate of Russell, the word “employee” was given a liberal interpretation as the Anti-Discrimination Act 1977 was beneficial legislation (at 249 (paragraph 87)), and the statute contained strong textual indicators that the word should not be given a narrow definition (at 250 (paragraph 93)).

43 The TI Act permits an interception warrant to be obtained to assist in the continuing battle against serious crime. The fact that sensitive issues are concerned, involving the intrusion upon privacy and the protection of the community against serious crime was emphasised in Grollo v Palmer [1995] 184 CLR 348, where Brennan CJ, Deane, Dawson and Toohey JJ said at 367:

“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 [see Haisman v Smelcher [1953] VLR 625 at 627] and property (both real and personal), be authorised to control the official interception of communications.”

In Grollo v Palmer , McHugh J said at 378:

“The power exercised by the persona designata authorises the invasion of the privacy of ordinary citizens for the purposes of a criminal investigation.”

Later, at 384, McHugh J said:

“Telephone interception with its attendant invasion of the privacy of the citizen is regrettably an essential tool of law enforcement officers if they are to combat the evil of organised crime. Because telephone interceptions necessarily involve infringements of the right to privacy, the national Parliament has regarded it as essential that the interceptions only take place with the approval of some person or tribunal independent of the criminal investigative agencies that are authorised to intercept telephone conversations.”

Although these statements in Grollo v Palmer were made in the context of a case concerning the nature of the function involved in the issue of a TI Act warrant, and its compatibility with judicial office, they assist in the proper characterisation of the TI Act.

44 In Lawrence v NSW Police Service (2004) 144 A Crim R 396, Greg James J said at 403 (paragraph 45):

“The legislature in this regard in New South Wales by reason of the Listening Devices Act 1984, in other states by reason of the enactment of the counter parts to that Act and in the Commonwealth scheme by the Telecommunications (Interception) Act 1979 and the Telecommunications (Interception) Amendment Act 1989 has in each case emphasised the privacy of the citizen as a consideration of great importance. Each of those Acts permits the invasion of that privacy in circumstances where the Act otherwise affirms that privacy by the creation of criminal offences for those that without authority embark on acts which might only be lawfully performed if made pursuant to a valid warrant.”

45 I consider that the word “employee” in s.47(b) TI Act should be given its ordinary meaning, being a person who has a contract of employment with another. The TI Act is not beneficial legislation which ought be given a liberal interpretation. Nor, in my view, are there textual indicators in the statute which point to the word being given a broader than usual meaning. Insofar as the Plaintiff relies upon the analysis of Einfeld J in Employment National Ltd v CPSU, it should be observed that his Honour, at paragraphs 90-91, characterised the Workplace Relations Act 1996 (Cth) as remedial legislation which sought to “remedy the particular industrial injustice of the evasion by succeeding employers of obligations created by awards binding on their predecessors”. The adoption of a pragmatic construction of the word “employee” in such a statutory context is understandable. It is, however, far removed from the statute presently under consideration.

46 The primary objects and the purpose of the TI Act is the protection of privacy and the confidentiality of communications: Taciak at 297; Wood v Beves (1997) 92 A Crim R 209 at 220. There is no warrant to extend the meaning of the word “employee” in the manner contended for by the Plaintiff. I am not persuaded that the historical analysis of s.47 advanced by the Plaintiff calls for such a conclusion. If Parliament had intended a broader class of persons to perform interception activities for the carrier under a statute such as the TI Act, different words would have been used.

47 Accordingly, I accept the submissions of the Defendant and conclude that a breach of s.47 TI Act had occurred in this case. Mr Howen drew to my attention amendments to the TI Act to be effected by the Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Bill 2005. Amongst the amendments proposed by that Bill is the insertion of a new s.5(4A) TI Act in the following terms:

“4A A reference in this Act to an employee of a carrier includes a reference to a person who is engaged by the carrier or whose services are made available to the carrier.”

48 At the hearing before me, it was accepted by Mr Temby QC, for the Plaintiff, that this application should be heard and determined by reference to the TI Act as it stood at the time of the hearing.

Construction and Application of s.75 TI Act

49 I am satisfied that the involvement in the interception of persons other than employees of the carrier, Optus Mobile, constituted a breach of s.47 TI Act and an irregularity in connection with the execution of a warrant for the purposes of s.75(2)(b) TI Act.

50 The present proceeding is an “exempt proceeding”: s.5B(b) TI Act.

51 The discretion to admit evidence under s.75(1) TI Act arises where the irregularity or defect is “other than a substantial defect or irregularity”: s.75(2). Accordingly, the first question to be considered is whether the irregularity in this case may be so classified.

52 If it is so classified, the second question is whether, for the purposes of s.75(1), I am satisfied that:

(a) but for the irregularity, the interception would not have constituted a contravention of s.7(1) TI Act; and

(b) in all the circumstances, the irregularity should be disregarded.

53 The word “substantial” is a word which may vary in its meaning depending upon the context in which it is used and the subject matter in relation to which it is to be applied: Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 at 622. In Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 348, Deane J observed that the word “substantial” was not only susceptible of ambiguity, but was a word calculated to conceal a lack of precision. In O’Brien Glass Industries Limited v Cool & Sons Pty Limited (1983) 77 FLR 441, Fox J at 447 referred to Tillmanns Butcheries and observed that, in selecting the word “substantial”:

“The legislature has chosen a word of intractably indefinite import and much must be left to individual assessment.”

In Losurdo , it was said at 622 that the word “substantial” is an ordinary English word and must be given its ordinary meaning in the context in which it appears.

54 In determining whether an irregularity was “other than substantial” for the purpose of s.75(2) TI Act, it is appropriate to consider the nature and seriousness of the irregularity, having regard to the procedural requirements of the TI Act. It may also be relevant to consider whether deliberate impropriety was involved, although this question may have greater relevance to the second stage, being the exercise of discretion under s.75(1) TI Act. In this way, there may be some overlap with factors which would be relevant to that exercise of discretion.

55 I propose to consider the submissions of the parties on the two questions together. That is the way in which the case was argued before me, and it reflects the fact that there is some overlap between the two questions.

56 The Plaintiff submits that, if s.47 has been breached in this case, the irregularity was not substantial and ought be regarded as a technical breach only. There is no suggestion that strangers or third parties outside the Optus Group of companies were involved in the relevant interceptions. The persons who performed these functions were listed on the relevant IC plans. They were, however, not “employees” of the carrier, Optus Mobile. The Plaintiff contends that the privacy protection features of the TI Act were not, in reality, placed at risk in this case.

57 The Plaintiff submits that there was no impropriety in this case. There was no conscious wrongdoing by the carrier, let alone by the law enforcement agency involved. Rather, the Plaintiff submits that a private corporation has, without the complicity of law enforcement authorities, so organised its business affairs that it has caused a breach of s.47(b) TI Act. The Affidavit of Mr O’Connor reveals that it was not until 31 August 2004 that the Plaintiff became aware that the Defendant was challenging the admissibility of evidence upon the s.47 TI Act ground. A letter dated 31 August 2004 from the NSW Police to the Plaintiff indicated that the s.47 point was being taken. I infer that it was not until that time that the Plaintiff became aware of the present problem.

58 The Plaintiff submits that the TI Act seeks to balance two important things. The first is a policy of restricting the interception of telephone calls based upon the object of protecting privacy. The second is the investigation of serious crime and the legitimate interests of law enforcement agencies which are advanced by resort to telephone interception. A key aspect of the striking of the balance is Parliament’s decision that evidence obtained from improper telephone interception will not be admitted into evidence. The Plaintiff invited consideration and application of principles concerning the discretion to admit improperly obtained evidence in accordance with Bunning v Cross [1978] 141 CLR 54 and Ridgeway v The Queen [1994] 184 CLR 19. The Plaintiff submits that no public policy would be advanced by depriving the Court of the TI evidence in the present proceedings nor would any legitimate interest of the Defendant be secured by excluding such evidence. On the other hand, the exclusion of the evidence would thwart the public interest in securing an order s.27 CAR Act. There is a significant public interest in such proceedings, as reflected in the statutory objects contained in s.3 CAR Act.

59 The Plaintiff pointed to decisions in which s.75 TI Act has been considered, including R v Bunting and Wagner (No. 5) [2003] SASC 253, R v Rich (Victorian Court of Appeal, 17 December 1997, unreported, BC9707105 at page 34ff) and McCleary v Commonwealth Director of Public Prosecutions (1998) 157 ALR 301. In each of these cases, s.75(1) TI Act was applied and evidence of intercepted communications was admitted despite irregularity under the Act. In each case, the irregularity was held to be “other than substantial".

60 The submissions of the Plaintiff are supported by a number of statements in the authorities. In R v Bunting and Wagner (No. 5), Martin J said at paragraph 34:

“If, contrary to my view, the failure to comply with the administrative duty meant that the interceptions were in contravention of s 7(1), I would have no hesitation in being satisfied that, but for the irregularity, the interceptions would not have constituted such a contravention. Further, in my opinion the irregularity should be disregarded. There is no suggestion of any deliberate impropriety on the part of the Commissioner or investigating officers. They endeavoured to comply with their duties. In practical terms, the safeguards envisaged by the Act were observed. The irregularity and subsequent illegality did not affect the cogency of the evidence. The irregularity and illegality did not give rise to any relevant unfairness. The factors identified in Bunning v Cross (1978) 141 CLR 54 strongly favour the admission of the evidence.”

In R v Rich , the Victorian Court of Appeal (Winneke P, Brooking and Buchanan JJA) observed at page 39 that one of the circumstances which entitled the court to disregard the irregularity in that case was that it had no adverse impact on the applicant.

61 Another feature emerges from the judgment in R v Bunting and Wagner (No. 5) which is relevant to the present case. The certificate under s.61 TI Act in that case is in similar terms to that set out earlier at paragraph 8 of this judgment. It revealed that employees of Optus Administration and not the carrier, Optus Mobile, performed interception functions. No point was taken in this regard in that case.

62 The fact that the Optus Group of companies has apparently utilised this corporate structure over a period of time and thereby, as I have found, caused a breach of s.47(b) TI Act gave rise to two submissions in this case. The Defendant submits that this is an entrenched irregularity which could and should have been avoided, or could and should have been detected, by the Plaintiff or other law enforcement agencies at an earlier time. The Defendant submits that this factor militates against the exercise of discretion to admit the evidence under s.75 TI Act. The Plaintiff, on the other hand, submits that the open disclosure of this corporate arrangement in certificates under s.61 TI Act in other cases points to the lack of any intentional wrongdoing on the part of the carrier, let alone the Plaintiff or any other law enforcement agency.

63 The Plaintiff submitted that the TI Act material had substantive probative value with respect to the issues to be determined in the present CAR Act proceedings. For reasons explained in paragraph 13 of this judgment, the evidence is of critical importance to the Plaintiff’s case.

64 The Defendant contended that the provisions of s.47 TI Act are mandatory and not directory. If what is meant by this submission is that a consequence of the irregularity is that the issue or the execution of the warrant is invalid and of no effect, I do not accept it. The legislative scheme in the TI Act, which includes s.75, does not suggest that a breach of s.47 necessarily invalidates either the issue or the execution of the warrant: Project Blue Sky at 388-391 (paragraphs 91-93). A breach of s.47 gives rise to a “defect or irregularity” within s.75 TI Act so as to enable the discretionary admission of evidence if the defect or irregularity is not substantial and the other requirements of s.75 are satisfied.

65 The Defendant submitted that public interest considerations in this case do not flow entirely in favour of the making of an order under s.27 CAR Act so as to point to the discretionary admission of the evidence under s.75 TI Act. The Defendant contended that the acceptance of the Plaintiff’s submission that the high probative value of the intercept material outweighed any breach was to extend an invitation to each entity involved in the process of intercepting communications to place little priority on complying with the high public policy of compliance with the provisions of the TI Act. It was submitted that because the s.75 discretion lay within the TI Act, and not the Evidence Act 1995, a court should be less willing to exercise the discretion having regard to statements in Doe, Taciak, and Serratore concerning the proper construction of the TI Act.

66 I agree that discretionary considerations do not operate in one direction only for the purpose of exercising the discretion under s.75. It is appropriate to look at the nature and degree of the irregularity. If it is substantial, s.75 TI cannot apply. If it is not substantial, a court has a discretionary power to admit the evidence. Once it is determined that the defect or irregularity is not substantial, it is necessary to determine, in all the circumstances, whether the irregularity should be disregarded: s.75(1)(b) TI Act. The fact that the TI Act itself makes specific provision for discretionary admission in s.75 does not suggest that, apart from the terms of s.75 itself, an approach stricter than that available at common law (Bunning v Cross; Ridgeway) ought be applied.

67 In the present case, it is necessary to consider the nature and seriousness of the irregularity, the contents of the brief of evidence against the Defendant and the strength and significance of the TI Act evidence in that brief, and to have regard to the interests of the Plaintiff and Defendant and the public interest.

68 I consider that the breach in this case may be properly characterised as a technical irregularity. It was not accompanied by impropriety. I am satisfied that the irregularity is not substantial for the purposes of s.75(2) TI Act.

69 The brief of evidence against the Defendant, including the intercepted material, has been tendered by the Plaintiff on the present application. The Defendant objected to the tender of this material but conceded that I was entitled to inspect the transcripts of the telephone intercepts on the question of the s.75 discretion. In circumstances where it is necessary for me to consider whether “in all the circumstances” the irregularity should be disregarded, I am entitled, indeed obliged, to consider the nature and weight of the intercept evidence in the proceedings against the Defendant.

70 Having examined the TI Act material contained in the brief, and having considered it in the context of the entire brief of evidence, I consider that it has substantial probative value in the proceedings under s.27 CAR Act against the Defendant.

71 I have taken into account all arguments which have been advanced in favour of and against the admission of the intercept material. For the purposes of s.75(1) TI Act, I am satisfied that, but for the irregularity in this case, the interception would not have constituted a contravention of s.7(1) TI Act. Further, I am satisfied, in all the circumstances, that the irregularity should be disregarded. Accordingly, I am satisfied that a person may give information obtained by the interception in evidence in the present exempt proceeding.

72 In written submissions provided following the hearing, Counsel for the Defendant raised objection to portions of the TI Act material within the brief of evidence upon specific grounds, going to form and content, other than s.75 TI Act. These grounds included, inter alia, an objection to the Statement of Detective Sergeant Jenine Partlett which contains opinions concerning “coded” language said to have been used in the intercepted conversations. The question of the ultimate admission of this material may involve application of the principles in R v Lam (2002) 135 A Crim R 302 at 318ff and the authorities referred to therein. For present purposes, I have ruled that the intercept material within the brief of evidence is generally admissible for the purposes of s.75 TI Act. However, any objections as to specific parts of the brief on other grounds ought be considered at a later hearing or at the trial of this matter.

Conclusion

73 I have concluded that a breach of s.47 TI Act has occurred in this case, but that evidence obtained pursuant to the subject warrant ought be admitted nevertheless in the CAR Act proceedings by application of s.75 TI Act. In these circumstances, I decline to make the declarations sought in the Notice of Motion. Although my findings may support an order in terms of paragraph (a) of the Notice of Motion, there is no utility in making such a declaration given my conclusion concerning admissibility of the material.

74 I will hear the parties as to the form of orders to be made, including as to costs.

(After submissions)

75 I note that, by consent, I am asked to order that each party pay their own costs. Accordingly, I dismiss the Defendant’s Notice of Motion and order that each party pay their own costs.

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