Price, John James v Elder, Wendy

[1998] FCA 1767

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 631 of 1998 NG 651 of 1998 NG 678 of 1998

BETWEEN:	JOHN JAMES PRICE APPLICANT
AND:	WENDY ELDER AND ORS RESPONDENTS

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	13 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

When the matter was last before the Court, I heard argument on the question as to whether the activities which resulted in the issue of the search warrants in these matters should be invalidated on the grounds that the person who issued the search warrants was not validly entitled to do so. The argument was that the Commonwealth Parliament has no power under Chapter III of the Constitution to confer on a State court a function which is not a judicial function or incidental to a judicial function, that the issuing of search warrants is an executive activity and not judicial, and that section 3E of the Crimes Act 1914 (Cth) which empowers an issuing officer to issue a search warrant confers the functioning of issuing the search warrant on a State court.

The question raised is different in the two cases, or what is really three cases but two issuing officers. I shall deal firstly with the position of Ms Wendy Elder, who was the officer who issued the warrants in two of the matters before the court, numbers 631 and 678 of 1998. Ms Elder is an employee of the Local Court of New South Wales. The definition of ‘issuing officer’ in section 3C of the Crimes Act, when read together with section 3E, permits such a person to issue a search warrant.

The argument put on behalf of the applicant is that, as such, there was a conferral by Federal legislation on the Local Court of New South Wales of a non-judicial/executive power.  This area of the law is now well travelled, and there is no point in my attempting to review the authorities at length at this time.  If the matter is to be appealed, the opinion of the first instance judge will be of no significance at all in the overall development of the law because the facts in this case are similar to the facts in other cases long since reported and disposed of.

In my opinion, the conferring of a power to issue search warrants on a person employed in the Local Court of New South Wales is not in breach of Chapter III of the Constitution in that the relevant power has not been conferred on a court but on a person working in a court who does not exercise any of the powers of the court at all, except in an administrative capacity. I therefore hold that Ms Elder was validly authorised to issue the search warrants which she issued.

The position is somewhat more difficult in matter number 651 of 1998 where Mr Fitzgerald issued the search warrant involved. As I am informed, Mr Fitzgerald is a stipendiary magistrate appointed under the Victorian Magistrates’ legislation which obviously establishes judicial officers who exercise significant judicial power.  That circumstance would not by itself represent any particular problem because of what has familiarly become known as the ‘persona designata’ doctrine under which both judges and magistrates have been held to be able to exercise executive and non-judicial functions as designated persons and not as members or representatives of a court. 

This doctrine is now well established in the law, albeit one which creates a number of conceptual difficulties.  Hence, were the position merely that Mr Fitzgerald had exercised the executive function of issuing a search warrant, being at the same time a Victorian magistrate and exercising judicial powers as such, there would be no problem in the validity of his action because it would be likely that the power was granted to him persona designata. 

The difficulty arises because of some amendments to the Commonwealth Crimes Act inserted in 1994, which resulted in the insertion of section 3CA and of a definition of ‘magistrate’ in section 3C. Without attempting to go into the matter in great detail, section 3CA and the new definition make clear that certain specific functions, added into the Crimes Act at or about the same time, were conferred on magistrates in their personal capacities and not the capacity of being a part or member of a court or representing a court. Those functions, set out in a number of sections commencing with section 3ZI, grant to magistrates, amongst other people, the power to order or permit certain invasions of privacy and other compulsive actions against individuals, including strip searching, taking fingerprints, samples of handwriting or photographs, and others.

The applicant argued that the effect of section 3CA and the definition of magistrate was that in contrast to the specific matters where magistrates act persona designata, the other functions set out in the Crimes Act which were not included in the definition or in section 3CA, including the issue of search warrants, should be taken as conferred on the magistrates in their judicial capacity. The argument was that if the legislature had intended that a magistrate was acting persona designata in relation to search warrants, amongst other things, that addition could have been made in the new definition and in the regime set up by section 3CA.

The argument undoubtedly carries some force, and were it the position that this legislation had all been passed at the same time, the omission of the section 3E power to issue search warrants from the provisions of section 3CA and the definition of magistrate would have been a very stark one indeed. Even still, it must be said to be quite anomalous that where Parliament decides to explicitly legislate a magistrate as having some personal capacity other than a judicial one, there should be an identical interpretation of clauses where it is not so stated.

I think, however, that the argument advanced by the applicant should not be accepted in this instance.  What is necessary is to review the legislation providing the power to issue search warrants. 

The power to issue search warrants is imposed upon or granted to a person called an “issuing officer”.  By itself that expression indicates something quite distant from and completely separate to a court.  The very use of the term "issuing officer" is used suggests that what is being done is an administrative act and not one that has anything to do with the functions of the court.  A judge would not ordinarily be regarded as an issuing officer, although it is true that judges can certainly issue or take part in the issuing of process such as subpoenas and other compulsory orders.  Generally speaking, the use of a description such as “issuing officer” would indicate that what the legislature was talking about was an administrative actor and not a judicial actor .

The second thing about the legislative scene is that there is now quite a line of authority — some of it on the edge of uncertainty such as Hilton v Wells & Others (1985) 157 CLR 57 decided by a narrow majority of the High Court but others of it in a much more definitive form — that unless legislation clearly states otherwise, judges and magistrates do have a capacity other than their strictly judicial or curial capacity to participate in the successful operation of the legal system, including participation in the detection of crime prior to a crime or offence ever being committed by warrants for listening devices and telephone interceptions. Magistrates have participated in other forms of intervention in the legal system for years which were clearly indicative of executive and not judicial function, yet all these things have proceeded with the blessing of the High Court, and have gradually been built upon as the years have proceeded. Committal proceedings are in a gray area somewhere between executive and judicial functions.

Whatever the wisdom and correctness of those classifications, it should now be accepted that when a person who is otherwise a judicial officer is authorised by Parliament to participate in executive or administrative functions which are not the functions of a court, the officer is deemed to be clothed with those functions in a personal capacity and not as a court or a member of a court.  I agree that, looked at as a whole, the present legislation is not far from providing to the contrary when it has specifically chosen certain administrative functions for a magistrate in a personal capacity, while omitting the issue of search warrants.  But I think it would be quite extraordinary to take that anomaly as the determining factor, when it has clearly been caused by the insertion of later amendments without an apparent overall consideration of the effect that they might have on the legislation as it stands.

I find that the search warrant in matter number 651 of 1998 was also validly issued.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO

Associate:

Dated:             13 November 1998

Counsel for the Applicant:	Mr L. J. Aitken
Solicitor for the Applicant:	Colbron & Associates
Counsel for the first Respondent:	Mr P. Singleton
Solicitor for the first Respondent:	State Crown Solicitor
Counsel for the second Respondent:	Mr S. J. Gageler
Solicitor for the second Respondent:	Commonwealth Director of Public Prosecutions
Date of Hearing and Judgment:	13 November 1998