Carmody v Mackellar & Ors

(1997) 76 FCR 115

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(Judgment by: BLACK CJ, LINDGREN, SACKVILLE) Court:

Judges:
BLACK CJ
LINDGREN
SACKVILLE

Subject References:
CRIMINAL LAW AND PROCEDURE
warrants
warrants issued by eligible judges under Telecommunications (Interception) Act 1979 (Cth) and Customs Act 1901 (Cth) in relation to a practising barrister
whether warrants authorise the interception and recording of communications the subject of legal professional privilege
whether failure of warrants to provide for or deal with the protection of legal professional privilege may invalidate warrants
PRACTICE AND PROCEDURE
whether leave to amend statement of claim to include allegations substantially the same as those previously struck out by trial judge ought to be granted

Legislative References:
Administrative Decisions (Judicial Review) Act 1977 (Cth) - 3; Sch 1, par (d)
Customs Act 1901 (Cth) - 219A(1); 219AA; 219B; 219F; 219H; 219K; 233B(1)
Telecommunications (Interception) Act 1979 (Cth) - 5(1); 5B; 5D; 6(1); 6D; 6E(1); 7; 42; 45; 46; 49; 63(1); 67; 68; 69; 74(1); 78

Case References:
Flanagan v Commissioner of Australian Federal Police & Ors - (1996) 60 FCR 149
Coco v The Queen - (1994) 179 CLR 427
Lego Australia Pty Ltd v Paraggio - (1994) 52 FCR 542
Baker v Campbell - (1983) 153 CLR 52
Re Director of Investigation and Research and Shell Canada Ltd - (1975) 55 DLR (3d) 713
Carter v Managing Partner, Northmore Hale Davey & Leake - (1995) 183 CLR 121
Arno v Forsyth - (1986) 9 FCR 576
Perron Investments Pty Ltd v Deputy Commissioner of Taxation (WA) - (1989) 90 ALR 1
Sean Investments Pty Ltd v MacKellar - (1981) 38 ALR 363
Minister for Aboriginal Affairs v Peko-Wallsend Ltd - (1986) 162 CLR 24
R v Curran and Torney - [1983] 2 VR 13
Karina Fisheries Pty Ltd v Mitson - (1990) 26 FCR 473
Freeman v Roberts - (1992) 37 FCR 399
Rogers v Moore - (1992) 39 FCR 201

Hearing date: 5-6 MARCH 1997
Judgment date: 30 July 1997

MELBOURNE

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Judgment by:
BLACK CJ
LINDGREN
SACKVILLE

INTRODUCTION

The applicant was, at all material times, admitted to practise as a barrister and solicitor of the Supreme Court of Victoria, and in active practice as a barrister. He applies for relief in respect of certain listening device ("LD") warrants and telephone intercept ("TI") warrants issued by the fifth, sixth and seventh respondents, Justices Jenkinson, Sweeney and Ryan (all of whom were then judges of this Court), on applications made to them respectively by the first, second and third respondents (Federal Agents MacKellar, Phillips and Sharp) who are officers of the Australian Federal Police, ("the AFP"). The fourth respondent is the Commissioner of the AFP. (We will refer to the first to fourth respondents as the "AFP respondents" and to the fifth, sixth and seventh respondents as the "Issuers".) At the heart of the application is the fact that, according to the applicant, the warrants were apt to authorise interception of communications the subject of legal professional privilege.

Pursuant to subs 20 (1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that the application be heard and determined by a Full Court.

THE WARRANTS

The LD warrants were issued pursuant to s 219B of the Customs Act 1901 (Cth) ("the Customs Act "). The TI warrants were issued pursuant to s 45 of the Telecommunications (Interception) Act 1979 (Cth) ("the TI Act "). At all material times, the applicant occupied professional chambers at Level 3, 180 William Street Melbourne ("the Chambers") and dwelt at Unit 1, 8 Basil Street, East Malvern ("the Home"). He was accustomed to conduct conferences with clients of his practice at the Chambers and elsewhere, over the telephone service installed at the Home and over his mobile telephone.

A Judge of the Court may issue an LD warrant only if the Judge has consented to be nominated, and has been nominated, by the Minister under s 219AA of the Customs Act . A Judge may issue a TI warrant only if the Judge is an "eligible Judge" within the meaning of s 6D of the TI Act . All three Issuers were nominated Judges under s 219AA of the Customs Act and eligible Judges within the meaning of s 6D of the TI Act . (We will refer to persons authorised to issue warrants as "designated persons"; cf Hilton v Wells (1985) 157 CLR 57).

An LD warrant may be issued in respect of particular premises, or in respect of a particular person, irrespective of where he or she may engage in conversation. A TI warrant may be issued in respect of a telecommunications service, whether mobile or fixed.

The warrants were issued on the dates on which they were respectively applied for. Set out in the following table are those dates, the name of the Federal Agent applying for the warrant, the statutory provision under which the application was made and the warrant issued, and the name of the Issuer:

NOTE: For the purposes of the above table "CA" refers to the Customs Act and "TIA" refers to the TI Act .

As can be seen from the table, on 5 July 1994, Federal Agent MacKellar applied to Jenkinson J for, and obtained, the issue of the First Home TI warrant, Home LD warrant, Personal LD warrant, Mobile TI warrant, and the one and only Chambers LD warrant; on 30 September 1994, Federal Agent Sharp applied to Sweeney J for, and obtained, the issue of the Second Home TI warrant, Home LD warrant, Personal LD warrant and Mobile TI warrant; and on 24 November 1994, Federal Agent Phillips applied to Ryan J for, and obtained, the issue of the Third Home TI warrant, Home LD warrant, Personal LD warrant and Mobile TI warrant. The issue of each warrant involved two decisions: the decision of the Federal Agent to apply for it and the decision of the Issuer to issue it. Accordingly, the applicant seeks review of 26 decisions in respect of 13 warrants.

He seeks review of the decisions to apply for, and the decisions to issue, the LD warrants under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act "), s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act ") and the accrued jurisdiction of this Court. However, by reason of the definition of the expression "decision to which this Act applies" in s 3 of the ADJR Act and par (d) in Schedule 1 to that Act, the ADJR Act does not apply to the decisions to apply for, and the decisions to issue, the TI warrants. Review of those decisions is sought under s 39B of the Judiciary Act and the accrued jurisdiction of the Court alone.

The three Issuers entered appearances but have not played any part in the proceeding.

BACKGROUND FACTS

The following is an agreed statement of facts which was before the Court:

"1.

The Applicant is and was at all material times a Barrister in active practice, practising from rooms situated at Room 9, Level 3, Four Courts Building, 180 William Street, Melbourne.

2.

The First, Second and Third Respondents are Federal Police Officers who made applications to the Fifth, Sixth, and Seventh Respondents respectively for listening device and telephone intercept warrants, for the purpose of investigating allegations into alleged heroin importation and/or trafficking by the Applicant. The Fourth Respondent is generally in charge of the activities of the Australian Federal Police and is responsible for the activities of the First, Second and Third Respondents.

3.

On the 5th July, 1994 the First Respondent applied to the Fifth Respondent for several listening device warrants pursuant to the provisions of the Customs Act. The First Respondent applied for, and the Fifth Respondent issued, a warrant to install a listening device at room 9, level 3, 180 William Street, Melbourne (`the first chambers listening device warrant'), at the Applicant's home at unit 1, 8 Basil Street, East Malvern (`the first home listening device warrant') and to install a listening device anywhere in Australia that the Applicant was likely to be (`the first personal listening device warrant'). Simultaneously, the First Respondent applied to the Fifth Respondent for warrants pursuant to the Telecommunications Interception Act to intercept communications passing over the Applicant's mobile telephone 018 530 292 (`the first mobile intercept warrant'), and to intercept communications from the telephone at the Applicant's home, being 03 9571 3991 (`the first home intercept warrant').

4.

On the 30th September, 1994 the Second Respondent applied for, and obtained from the Sixth Respondent, similar warrants, save that no specific warrant was applied for in respect of the Applicant's professional chambers. The Sixth Respondent issued the second home listening device warrant, the second personal listening device warrant, the second mobile intercept warrant, and the second home intercept warrant.

5.

On the 24th November, 1994 the Third Respondent applied to the Seventh Respondent for warrants similar to those previously granted, save that no specific warrant was applied for in respect of the Applicant's professional chambers. The Seventh Respondent issued the third home listening device warrant, the third personal listening device warrant, the third mobile intercept warrant and the third home intercept warrant.

6.

Under the (now disputed) authority of these warrants, the First, Second and Third Respondents and other officers of the Australian Federal Police monitored conversations conducted by the Applicant. Such monitoring consisted of listening to and recording all conversations detected by the various listening device and intercept mechanisms.

7.

On the 11th January, 1995 the Applicant and others were arrested, the Applicant being charged with two charges of being knowingly concerned in the importation of a prohibited import, namely heroin, two charges of possession of a prohibited import, namely heroin, and trafficking a drug of dependence, namely heroin. Committal proceedings have been conducted and the Applicant has been committed for trial on these charges. The trial has not yet commenced.

8.

A trial date of 3 March 1997 was fixed for the trial, but that date was vacated on account of these proceedings. A trial date of 1 September 1997 has now been fixed as the date of trial. The Applicant is to stand trial with his two co-accused, being his wife and a former client. A copy of the Indictment/Presentment is annexed hereto and marked `A'. [the annexure is not included in these Reasons for Judgment.]

9.

Each LD warrant issued under [Customs Act], s219B(5) referred to the Applicant as a `barrister at law': [...] Each TI warrant also referred to the Applicant as a `barrister at law': [...] The chambers LD warrant referred to premises known in the State's legal profession to be barristers' chambers [...]. Each other LD warrant named the Applicant as the person in respect of whom the application was made:[...].

10.

When each of the first, second and third respondents made application for the TI and LD warrants on behalf of the Australian Federal Police, he put before the relevant Judge an affidavit which had been sworn by him. The affidavit of the first respondent included a paragraph which read:-

Enquires [sic] reveal that Christopher John Carmody is a barrister at law practising from Room 9, 3rd Floor, Four Courts Building, 180 William Street, Melbourne. Examination of the building directory has Christopher John Carmody as the sole occupant of Room 9.

The affidavits of the second and third respondents included a paragraph which read:-

Enquiries reveal that Christopher John Carmody is a barrister at law practising from Room 9, Level 3, Four Courts Building, 180 William Street, Melbourne.

No other material relevant to the matters set out in paragraphs 1 and 1A [the relevant parts of these paragraphs are set out below] of the Amended Statement of Claim was placed before the fifth, sixth or seventh respondents by any of the first, second and third respondents.

11.

At the time of making application to the fifth respondent for the TI and LD warrants, the first respondent saw the fifth respondent take out a book or printed register and, in the course of so doing, the fifth respondent indicated that the book or printed register related to the professional practice of the applicant. The fifth respondent then requested the first respondent and the other AFP officer who accompanied him to mark on the relevant log sheets any conversations which were subsequently recorded by a listening device in the applicant's chambers and which might be the subject of legal professional privilege.

12.

Neither the second nor third respondents recollect having any conversation with the sixth and seventh respondents regarding the matters referred to in paragraph 1 and 1A of the Amended Statement of Claim.

13.

Each of the fifth, sixth and seventh respondents issued the warrants pursuant to the [Customs Act] and the [TI Act] in the knowledge that the applicant was at the time:-

(a)

in practice as a barrister; and

(b)

the occupant of professional chambers at Room 9, Level 3, Four Courts Building, 180 William Street, Melbourne.

14.

Conversations overheard and recorded purportedly pursuant to (at least) the first chambers listening device warrant, the second personal listening device warrant, the third personal listening device warrant and each of the mobile and home intercept warrants included material which was or bore the semblance of communications which were the subject of legal professional privilege. The respondents contend that the communications do not attract the operation of the doctrine of legal professional privilege as they were communications made for the purpose and/or as part of the processes of the crimes in respect of which the applicant has been charged.

15.

The prescribed form for LD and TI warrants, as well as s219B(5) and (7) of the [Customs Act] and s49(2) of the [TI Act] permit an issuing Judge to attach conditions upon the issue of a warrant. In the case of the warrants issued by the fifth respondent on 5 July 1994 and the sixth respondent on 30 September 1994, the provision for `conditions and restrictions' was crossed out and initialled by the issuing Judge. In the case of the warrants issued on 24 November 1994, the seventh respondent wrote in the word `nil' directly under the provisions for `conditions or restrictions'."

On 5 September 1996, Merkel J gave decisions on two motions in the proceeding: a motion by the AFP respondents for an order that the proceeding be dismissed or temporarily stayed; and a motion by the applicant seeking discovery and leave to administer interrogatories. In his reasons for judgment, Merkel J summarised the nature of the applicant's case as it appeared from an amended application filed on 8 December 1995 and a further amended statement of claim. We gratefully adopt his Honour's account:

"The applicant's case may be divided into two parts. The first part is general and alleges that:

(a)

the information provided to the eligible Judges in support of the applications for the issue of the warrants did not satisfy the requirements of s.219B of the [Customs Act] and s.45 of the [TI Act] (`the inadequacy claims');

(b)

the applicants for the warrants breached their `duty uberrimae fidei to make full and frank disclosure' to the eligible Judges (`the non-disclosure claims').

Having regard to the reasons for decision in [Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 (FCA/FC) ("Flanagan")] at 213-218, to succeed in the non-disclosure claim it is likely that the applicant will have to establish mala fides in the sense there discussed.

Counsel for the applicant has in effect conceded that the review sought on both of these grounds is foredoomed to failure in the absence of discovery in relation to the information provided to the eligible Judges. The concession arises from the fact that it appears that without discovery the applicant will not be able to put forward a factual basis for the allegations made.

The second part relates to the issue of legal professional privilege arising from the issue of warrants in relation to a barrister in active practice. The facts pleaded are:

1.

The Applicant is and was at all material times -

(a)

admitted to practice as a barrister and solicitor of the Supreme Court of Victoria;

(b)

in active practice as a barrister;

(c)

the occupant of professional chambers at Level 3, 180 William Street, Melbourne;

(d)

the occupant of premises at Unit 1, 8 Basil Street, East Malvern;

(e)

accustomed to and in the habit of conducting conferences with clients of his practice at his said professional chambers and elsewhere;

(f)

accustomed to and in the habit of conducting telephone conferences with clients of his practice, including conferences on his mobile telephone and his home telephone.

1A.

In the course of conducting the conferences referred to in paragraphs 1(e) and (f) the Applicant and his clients were likely to and frequently did discuss matters giving rise to legal professional privilege.

....

69A.

(b) that if each or any of the warrants ... applied for was granted, it was likely that a member or members of the AFP would listen to and/or record communications which were subject to legal professional privilege.

The applicant also made non-disclosure claims in relation to these facts and alleged a failure by the eligible Judges to give any or any proper consideration to the issue of legal professional privilege. These claims ("the factual privilege claims") involve questions of mixed fact and law, as their determination will involve enquiring into the knowledge, belief and bona fides of AFP officers concerning the applicant as well as some enquiry into the decision making process.

The factual privilege claims also appeared to be doomed to failure in the absence of discovery, as the applicant would be unable to put forward a factual basis for them.

Further, the evidence before me does not support the existence of a factual basis for these claims. It is apparent that on each occasion the eligible Judge issued a LD warrant under s.219B(5) in relation to a particular person being a `Barrister at Law'. Other warrants related to the residence and telephones used by that person. The evidence before me also discloses that the information provided to the eligible Judge on the first occasion led him to state that any material intercepted which may be privileged should be marked with an asterisk. Similar information was likely to have been provided to the other two eligible Judges when `extending' or `renewing' the warrants. Further, on the first occasion a LD warrant issued in relation to the applicant's chambers at 180 William Street. In these circumstances it is almost inevitable that, when they issued the warrants, the eligible Judges were informed of, considered and had regard to the occupation of the applicant. It is also probable that they gave some consideration to the issue of legal professional privilege.

At all events, the relevant matter on this aspect of the present applications is whether the applicant has established any basis for inferring that the eligible Judges may not have been informed of the applicant's occupation and of matters raising, at the least, the possibility of questions of legal professional privilege arising as a result of the issue of the warrants. For the reasons I have set out above and on the basis of the material before me that question must be resolved in the negative against the applicant.

The final issue is whether the decisions to apply for and issue the warrants, in failing to deal with or provide for the protection of legal professional privilege in the warrants, were in excess of the power conferred under the [Customs Act] and the TI Act (`the legal privilege claim').

Essentially, this claim involves a question of law arising on uncontroversial facts, being the information disclosed to the eligible Judges which gave rise to the possibility, likelihood or inevitability of privileged communications being recorded or intercepted pursuant to the warrants.

The applicant seeks -

*

declaratory relief that the warrants were unlawful, void and of no effect with the consequence that the information obtained pursuant to the warrants was obtained unlawfully and is or ought to be prohibited from being given in evidence or otherwise used by the AFP respondents;

*

orders quashing or setting aside each of the 26 decisions, including the decisions to issue the warrants;

*

injunctions restraining the AFP respondents from giving in evidence or otherwise using information obtained pursuant to the warrants."

REASONS FOR DECISION AND ORDERS OF MERKEL J

His Honour noted that the object or principal purpose of the proceeding was to prevent the information obtained pursuant to the warrants from being given in evidence at the applicant's trial. Accordingly, his Honour addressed the substantive issue of whether it was appropriate for this Court, rather than the trial court, to entertain the applicant's challenge to the validity of the warrants for the purpose of controlling the admission of evidence proposed to be adduced at the trial. The AFP respondents submitted that the proceeding should be dismissed or stayed on the grounds that the proceeding was an impermissible fragmentation of the criminal process (see Flanagan at 187), and that it was entirely speculative and could "be clearly seen to be foredoomed to fail" (see Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ)). The applicant's motion for discovery was in response to the contention that the proceeding was entirely speculative. The applicant submitted that the proceeding was a bona fide challenge to the issue of the warrants, and that in such a case discovery is warranted. Alternatively, he submitted that at least the legal privilege claim was not speculative, stood in a special category, and merited orders for limited discovery and interrogation.

His Honour examined the legislative scheme presented by the Customs Act and the TI Act (see later), and the jurisdiction of this Court and of the criminal trial court to review the validity of warrants. His Honour concluded that discovery should be ordered only in respect of the legal privilege claim. He said (at 49-50):

"As I have refused to order discovery on the unsubstantiated claims they cannot be particularised, are entirely speculative and should be struck out.

It may transpire that the factual inferences I have drawn or the factual assumptions I have made, particularly as to disclosure to the eligible Judges of matters relating to the applicant, may prove to be incorrect. My decision is not intended to and would not prevent the applicant from seeking leave to amend his application or his pleading if that is the case. Whether the leave would be granted would be a matter for determination on that occasion if and when it arises.

I also wish to emphasise that the principles applied by me in striking out all claims other than the legal privilege claim are those established in this Court for the judicial review of an administrative decision in the exercise of the jurisdiction of the Court under the ADJR Act or s.39B. Quite different principles might be applied by the trial court in relation to the exercise of its quite different jurisdiction and procedures in a criminal trial. Nothing that I have said should fetter or inhibit the trial court in that regard.

Finally, it has been a relevant factor in my decision to strike out those claims and to refuse discovery, that an alternative and more appropriate course is open to the applicant to pursue his challenge to the validity of the warrants on those grounds. If for any reason, in a particular case, such a challenge was not available in the course of the criminal process then fresh consideration may have to be given as to how to resolve the tension between the two competing principles of the Court not lending the aid of its processes to a fishing exercise and the Court not allowing its processes to be used to immunise LD and TI warrant decisions from judicial review.

14.0 Conclusion

For the reasons set out above I have concluded that the only claim which is to continue to be entertained by the Court is the legal privilege claim. I have also concluded that it is appropriate to order limited discovery and inspection and to grant limited leave to interrogate in respect of that claim. I have concluded that otherwise it is appropriate for all the other claims in the proceeding to be struck out.

Discovery and interrogatories are to be limited to the facts disclosed to the eligible Judges in relation to the matters set out in paragraphs 1, 1A and 69A(b) of [the] statement of claim."

DEVELOPMENTS SINCE THE DECISION OF MERKEL J

Merkel J made orders on 16 September 1996. An amended statement of claim was filed on 15 October 1996. A defence was filed on 22 October 1996. The amended statement of claim omitted the paragraphs which Merkel J ordered to be struck out. Paragraphs 1 and 1A, but not par 69A, quoted above, remained. The gravamen of the complaint made in the amended pleading is found in pars 75 and 76:

"75.

Further or in the alternative, by determining to issue and/or issuing each or any of the listening device or intercept warrants, when each of the Fifth, Sixth and Seventh Respondents knew or ought to have known that the activities purportedly authorised by such warrants would inevitably lead to the monitoring and/or recording of communications which were the subject of legal professional privilege, each of the Fifth, Sixth and Seventh Respondents

(a)

acted beyond the powers granted to him by the Customs Act and the [TI] Act respectively;

(b)

acted in excess of the jurisdiction granted to him by the Customs Act and the [TI] Act respectively;

(c)

acted unlawfully;

(d)

did not act so as effectively to grant any warrant under the Customs Act or the [TI] Act.

76.

By reason of -

(a)

(deleted);

(b)

(deleted);

(c)

the failure of the Fifth, Sixth and Seventh Respondents to make appropriate conditions and directions to give effect to protection of legal professional privilege, and/or

(d)

the wrongful acts of the Fifth, Sixth and Seventh Respondents referred to in paragraph 81 hereof -

the listening device warrants and the telephone intercept warrants are each of them invalid."

For reasons that will appear, it is important that the defence to pars 75 and 76 be set out:

"75.

As to paragraph 75 [the AFP respondents] say:

(a)

each of the fifth, sixth and seventh respondents issued warrants pursuant to the Customs Act 1901 and the Telecommunications (Interception) Act 1979 to members of the AFP in the knowledge that the applicant herein (Carmody) was

(i)

in practice as a barrister; and

(ii)

the occupant of professional chambers at Room 9, Level 3, Four Courts Building, 180 William Street, Melbourne;

(b)

at the time the fifth respondent issued the warrants on 5 July [1994] (as referred to in the Statement of Claim), the fifth respondent requested the first respondent and members of the AFP to identify in the log to be kept of recordings made pursuant to the warrants (`the log') any recordings made by use of a listening device installed in the applicant's chambers which might be the subject of legal professional privilege;

(c)

in accordance with the fifth respondent's request, the first respondent and members of the AFP identified in the log recordings made by use of a listening device installed in the applicant's chambers which might be the subject of legal professional privilege;

(d)

the second respondent and members of the AFP continued the practice of identifying in the log kept of recordings made by use of a listening device installed in the applicant's chambers recordings which might be the subject of legal professional privilege;

(e)

the third respondent and members of the AFP continued the practice of identifying in the log kept of recordings made by use of a listening device installed in the applicant's chambers recordings which might be the subject of legal professional privilege;

(f)

save as aforesaid they deny each and every allegation contained in paragraph 75.

PARTICULARS

As to subparagraphs (a), (b) and (c), they refer to paragraph 5 of the affidavit of Jennifer Marie Schubert sworn 15 August 1996; paragraph 4 of the affidavit of Robert Hallowell sworn 22 August 1996; and paragraph 8 of the affidavit of Berdj Tchakerian sworn 12 December 1996.

76.

As to paragraph 76, they say:

(a)

they deny each and every allegation contained in paragraph 76;

(b)

without derogating from the generality of the foregoing denial, they say:

(i)

that the fifth, sixth and seventh respondents were authorised by the Customs Act 1901 and/or the Telecommunications (Interception) Act 1979 to issue the listening device warrants and/or the telephone intercept warrants, notwithstanding that a recording and/or interception to be made pursuant to the said warrants might subsequently be found to be the subject of a claim for legal professional privilege;

(ii)

in issuing the listening device warrants and/or the telephone intercept warrants none of the fifth, sixth or seventh respondents was bound to stipulate conditions or restrictions in the said warrants or any of them relating to the recordings and/or interceptions to be made pursuant to the warrants, notwithstanding that the recordings might subsequently be found to be the subject of a claim for legal professional privilege; and

(iii)

if (contrary to paragraph (ii) above) the fifth, sixth and seventh respondents (or any of them) were bound to stipulate such conditions or restrictions (which is expressly denied), any failure to do so does not vitiate the listening device warrants and/or the telephone intercept warrants (or any of them)."

It is convenient to note also the last two paragraphs of the defence:

"83.

In further answer to the whole of the Statement of Claim they say:

(a)

the trial judge having control of the prosecution is fully able to hear and determine all matters relating to the use that may be or that may have been made of recordings made pursuant to the said warrants (or any of them) which might be the subject of a claim for legal professional privilege and to determine whether or not to uphold that claim and to exclude the recording, or evidence relating thereto from the trial;

(b)

the Court in the exercise of any discretion which it may have to grant or refuse relief sought by the applicant ought to refuse such relief having regard to the powers of the trial judge.

84.

Further or alternatively, the Court in the exercise of any discretion which it may have to grant or refuse relief sought by the applicant ought to refuse such relief having regard to the matters specifically set out in paragraph 75 above."

Discovery and interrogation have taken place. Verified statements in answer to interrogatories were filed by Federal Agents MacKellar, Sharp and Phillips. These were admitted into evidence before us, but during the course of the hearing the applicant and the AFP respondents handed up the agreed statement of facts referred to earlier, and agreed that this made it unnecessary for us to take into account the answers to interrogatories which should therefore be treated as withdrawn as an exhibit. We have proceeded accordingly.

On 21 February 1997, the applicant filed a notice of motion returnable on the commencement of the hearing seeking leave to amend the statement of claim by inserting new pars 76A and 76B. The amendment would re-introduce what Merkel J had referred to as "the non-disclosure claims". The proposed paragraphs are as follows:

"76A.

Further or in the alternative, at all material times the First, Second, and Third Respondents were under a duty, at the time of making each of the aforesaid applications, to disclose to the Fifth, Sixth and Seventh Respondents respectively all matters which, if disclosed to such Respondent and not properly considered by him, would vitiate the warrant.

76B.

In breach of the duty aforesaid, at the time of making the applications the First, Second and Third Respondents failed to disclose to the Fifth, Sixth and Seventh Respondents respectively -

76B.1

the fact that the use of a listening device pursuant to the first chambers listening device warrant, and the second and third personal listening device warrants would be likely to result in the interception of conversations which may be the subject of legal professional privilege.

76B.2

the fact that the interception of telephone conversations pursuant to each of the home and mobile intercept warrants would be likely to result in the interception of conversations which may be the subject of legal professional privilege."

The motion for leave to amend was opposed by the AFP respondents.

An affidavit of Jennifer Marie Schubert, solicitor and senior associate of the applicant's solicitors, in support of the motion, referred to passages in the reasons for judgment of Merkel J. In particular, it referred to the passage quoted earlier, in which his Honour contemplated the possibility of an application for leave to amend if the processes of discovery or interrogation, or both, should reveal that his factual inferences or factual assumptions were incorrect. Paragraphs 4-7 of Ms Schubert's affidavit were substantially in the nature of submissions, but it is useful to set them out:

"4.

Discovery and Interrogation has now occurred. It is apparent from the disclosed material that at the time of each application the only material placed before each eligible Judge regarding the Applicant's occupation was the fact that he was a Barrister-at-Law practising from room 9, 3rd floor, Four Courts Building, 180 William Street, Melbourne. It is apparent that neither the Sixth nor the Seventh Respondents made any comment regarding that information nor the implications thereof, nor sought to elicit any further information. The Fifth Respondent, at the time of the first application, apparently consulted some form of reference book and then informally advised the First Respondent to make a note of any possibly privileged conversations which were overheard and recorded.

5.

It further transpires from the Defence filed on behalf of the Respondents that, when purportedly exercising the powers granted by the first chambers listening device warrant, the second personal listening device warrant and the third personal listening device warrant, the Federal Police recorded conversations which took place at the Applicant's professional chambers, which communications included communications which were or appeared to be communications which may be the subject of legal professional privilege. It is further admitted that the interception of telephone communications pursuant to each of the mobile and home intercept warrants resulted in the interception of such privileged or purportedly privileged communications. It is, respectfully, submitted that, in particular, the Sixth and Seventh Respondents should have been apprised of the fact that listening devices at the Applicant's chambers and over the Applicant's home telephone and mobile telephone had apparently resulted in the interception of material which may have attracted the operation of legal professional privilege.

6.

It is further respectfully submitted that, had this been disclosed to the various eligible judges, this information and the inference to be drawn therefrom - that is, that the placing of a listening device in the Applicant's chambers and the interception of communications passing over his home and mobile telephones would be likely to result in the interception of privileged or apparently privileged communications - was information which formed a consideration relevant to the exercise of each of the eligible judges' discretions. It is respectfully submitted that each of the First, Second and Third Respondents was under a duty to disclose such a relevant consideration to the judge considering the various applications.

7.

It is respectfully submitted that the making of these amendments will not unduly lengthen the proposed trial of this action. The Applicant does not propose to call evidence other than to rely on the admissions contained in the Defence and summarised in this Affidavit. It is anticipated that this material can be adequately covered in an agreed set of facts. It is respectfully submitted that the question of such a duty of disclosure is quite interconnected with the questions already on foot as to the relevance of considerations of legal professional privilege and the validity of the warrants."

BRIEF OUTLINE OF PARTIES' SUBMISSIONS

The Applicant's Submissions

The applicant's submissions proceeded along the following lines:

Neither the TI Act nor the Customs Act , as a matter of construction, empowers a designated person to issue warrants which authorise the interception, overhearing or recording of communications subject to legal professional privilege. The principle of construction, accepted in Coco v The Queen (1994) 179 CLR 427, that legislation should not be construed as interfering with fundamental rights unless there is a clear expression of an unmistakable and unambiguous intention that it is to do so, is applicable. This requirement is not satisfied in either Act.

In the alternative, the Issuers were required to take into account the likelihood that the issue of a warrant would lead to the interception of privileged communications. The modern doctrine of legal professional privilege, subject to the crime/fraud exception, is absolute and does not give a protection liable to be displaced by any countervailing interests, even the public interest in the investigation, prosecution and suppression of crime. The material disclosed to each Issuer raised an inference that the warrants sought would probably or inevitably lead to the interception of, and therefore intrusion into, privileged communications. This consideration was relevant to the exercise of the discretion reposed in each Issuer whether to issue the warrant sought. The failure by each Issuer to take steps to protect the privilege gives rise to an inference that he did not properly take the consideration into account. In the alternative, if he did take it into account at all, by issuing unconditional warrants each exceeded his authority.

The first Chambers LD warrant and all three of the personal LD warrants authorised the AFP to listen to and record conversations in the Chambers. Once that authority was exercised, it was inevitable that privileged conversations would be intercepted. In relation to the mobile TI warrant, each Issuer should be taken to have understood that mobile telephones are "constantly used by barristers as a means of communication with their instructing solicitors and/or their clients." In relation to the Home TI warrants, all three Issuers should be taken to have understood that the applicant might "be telephoned by solicitors or desperate clients who require out-of-hours advice, or for police station attendances, or for advice regarding late briefs, or other privileged matters." Finally:

"[I]t was at least a reasonable possibility that a home listening device warrant would result in the interception of privileged communications. The warrants did not specify the place at which the listening device[s] were to be inserted at the Applicant's home, and it was open to the Federal Police to place the listening device adjacent to the Applicant's telephone. Therefore, if the applicant received privileged communications at his home, it was quite likely that such a placement would result in the overhearing of the Applicant's responses to privileged communications, which responses were privileged and which, in any event, may well echo the privileged communications received by the Applicant."

To issue an unconditional warrant in such circumstances and in the light of the established law that legal professional privilege prevails over a warrant shows that the Issuers did not turn their minds adequately to the consequences of the disclosed fact that the applicant was a barrister in practice.

In relation to the motion for leave to amend, privileged communications had been intercepted pursuant to the Chambers LD warrant, the second personal LD warrant, and each of the Mobile and Home TI warrants. Those facts, which are admitted by the AFP respondents, were not disclosed. The Full Court decisions in Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 (" Lego ") and Flanagan do not determine the existence and nature of any duty of disclosure which was incumbent upon the applicants for the warrants in the present case, because Lego concerned a search warrant issued under s 10 of the Crimes Act 1914 (Cth) and Flanagan concerned TI warrants issued under s 46 (not s 45) of the TI Act .

The AFP Respondents' Submissions

The AFP respondents' submissions proceeded along the following lines:

Both the Customs Act and the TI Act provide for the issue of warrants which authorise a listening to, and recording of, conversations. Any legal professional privilege arises at the instant when the first act authorised by such a warrant takes place. In the nature of things, it is impossible to devise a condition which would prevent a treading upon the privilege. It follows that both statutes must be taken to have intended an infringement of the privilege to the limited extent necessary for execution of the warrant. In any event, whether privilege attaches depends on facts extrinsic to the communication. Those facts are unlikely to be known to AFP officers at the time of interception and may not be known until completion of the investigation. Indeed,

"The nature of the difficulty is made patent where the Crown's case is that communications which have the semblance of privilege are not privileged, because they were made for the purpose of or as part of the processes of the crime."

The question of privilege can be addressed sensibly only when the client to whom the privilege belongs or his or her legal adviser becomes aware that the AFP holds a record of the relevant communication. Neither Act works a substantial injustice by authorising the interception of potentially privileged communications, since the AFP must maintain the confidentiality of information obtained under TI and LD warrants and must not communicate it except in the very limited circumstances provided for in the Acts: see TI Act , s 63 and Customs Act , s 219F.

It is inherently unlikely that the Issuers did not consider the question of privilege since they were informed that the person in question was a barrister.

The motion for leave to amend should be dismissed because:

(a)

the evidence before the Court is not materially different from that which was before Merkel J;

(b)

the non-disclosure ground cannot succeed; and

(c)

there is no injustice to the applicant who may raise the non-disclosure issue at his trial in the county court; see Flanagan .

THE LEGISLATION

The TI Act

The preamble to the TI Act is as follows:

"An Act to prohibit the interception of telecommunications except where authorised in special circumstances or for the purpose of tracing the location of callers in emergencies, and for related purposes."

Part II (s 7) of the TI Act is headed "INTERCEPTION OF TELECOMMUNICATIONS". Subsection 7(1) prohibits interception of a communication passing over a telecommunications system and related acts. Subsection 7(2) creates "exceptions" to the prohibition, including "(b) the interception of a communication under a warrant." The word "warrant" is defined in subs 5(1) to mean, relevantly, a warrant issued or to be issued under Part VI (ss 32-61A) of the TI Act , authorising the AFP to intercept telecommunications. The notion of "interception" of a communication is important. It is defined in subs 6(1):

"6.(1) For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication." (Emphasis added.)

The notion of "lawfully obtained information" assumes importance in the TI Act . Subsection 6E(1) provides:

"6.E(1) Subject to subsection (2), a reference in this Act to lawfully obtained information is a reference to information obtained (whether before or after the commencement of this section) by intercepting, otherwise than in contravention of subsection 7 (1), a communication passing over a telecommunications system."

Part VI (ss 32-61A) is headed "WARRANTS AUTHORISING THE AUSTRALIAN FEDERAL POLICE TO INTERCEPT TELECOMMUNICATIONS." The TI warrants in the present case were issued under s 45 of the TI Act which is as follows:

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

(a)

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

(b)

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

(c)

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

(d)

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

(e)

having regard to:

(i)

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

(ii)

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

(iii)

how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of a delay in obtaining some or all of that information or for any other reason;

some or all of that information cannot appropriately be obtained by such methods;

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

The AFP is an "agency" and the offence in which the applicant was supposed to have been involved for the purpose of the investigation referred to in s 45 was that of being in possession of a prohibited import, namely heroin, contrary to subs 233B(1) of the Customs Act , a "class 1 offence" as defined in s 5 of the TI Act .

Section 46 of the TI Act also provides for the issue of TI warrants, but in respect of "class 2 offences". A "class 2 offence" has the meaning given by s 5D of the TI Act . While class 2 offences are, on any reckoning "serious", class 1 offences are "more serious". Although the offence allegedly committed by the applicant is a class 1 offence, and, accordingly, the TI warrants were issued under s 45, much reference was made to s 46 of the TI Act for various purposes. Section 46 is as follows:

"46.

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

(a)

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

(b)

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

(c)

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

(d)

information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a class 2 offence, or class 2 offences, in which the person is involved; and

(e)

having regard to the matters referred to in subsection (2), and to no other matters, the Judge should issue a warrant authorising such communications to be intercepted;

the Judge may, in his or her discretion, issue such a warrant.

(2)

The matters to which the Judge shall have regard are:

(a)

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

(b)

the gravity of the conduct constituting the offence or offences being investigated;

(c)

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

(d)

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

(e)

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

(f)

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

It will be noted that under par 46(1)(e), the eligible Judge must have regard to the matters referred to in subs 46(2) "and to no other matters", but that there is no similar express restriction on the matters to which an eligible Judge may have regard when dealing with an application under s 45.

"Division 3" of Part VI is referred to in par (a) of both ss 45 and 46(1). That Division (ss 39-44) deals with "Applications for Warrants" It seems necessary to note only s 42:

"42.(1)

A written application by an agency for a warrant shall be accompanied by an affidavit complying with this section.

(2)

The affidavit shall set out the facts and other grounds on which the application is based.

(3)

The affidavit shall specify the period for which it is requested that the warrant be in force and shall state why it is considered necessary for the warrant to be in force for that period.

(4)

The affidavit shall set out, in relation to the service, and in relation to each person to whom the application relates, the following information, so far as it can be derived from the agency's records:

(a)

the number of previous applications (if any) for warrants that the agency has made and that related to the service or to that person, as the case may be;

(b)

the number of warrants (if any) previously issued on such applications; and

(c)

particulars of the use made by the agency of information obtained by interceptions under such warrants.

(5)

Notwithstanding subsection (1), a written application may be accompanied by 2 or more affidavits that together set out each matter that, but for this subsection, this section would have required an affidavit accompanying the application to set out, specify or state."

Section 49, which is in Division 4, and particularly subs 49(2), assumes importance:

"49.(1)

A warrant shall be in accordance with the prescribed form and shall be signed by the Judge who issues it.

(2)

A warrant may specify conditions or restrictions relating to interceptions under the warrant.

(3)

A warrant shall specify, as the period for which it is to be in force, a period of up to 90 days.

(4)

A Judge shall not vary a warrant by extending the period for which it is to be in force.

(5)

Neither of subsections (3) and (4) prevents the issue of a further warrant in respect of a service in respect of which a warrant has, or warrants have, previously been issued.

(6)

In subsection (5), ` warrant ' means a warrant issued under this Act.

(7)

A warrant shall set out short particulars of each serious offence in relation to which the Judge issuing the warrant was satisfied, on the application for the warrant, as mentioned in paragraph 45 (d) or 46 (1) (d), as the case may be." (Emphasis added.)

Part VII (ss 62-79) of the TI Act is headed "DEALING WITH INTERCEPTED INFORMATION". How lawfully obtained information may be dealt with is closely confined. The provisions of chief interest for present purposes are subs 63(1), par 67(a), subs 74(1) and s 78, which are as follows:

"63.(1)

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

(a)

communicate to another person, make use of, or make a record of; or

(b)

give in evidence in a proceeding;

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

67.

An officer of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following:

(a)

lawfully obtained information ...;

(b)

...

...

74.(1)

A person may give lawfully obtained information ... in evidence in an exempt proceeding.

...

78.

Nothing ... in this Part renders information, or a restricted record, admissible in evidence in a proceeding to a greater extent than it would have been admissible in evidence in that proceeding if this Part had not been enacted."

The definition of "permitted purpose" is found in s 5 and that of "exempt proceeding" is found in s 5B. Section 5 defines "permitted purpose" in relation to the AFP to mean a purpose connected with an investigation by the AFP of a "prescribed offence". It is not in dispute that the offence referred to in the 13 warrants is a prescribed offence. Section 5B defines "exempt proceeding" to mean, inter alia , a proceeding by way of a prosecution for a prescribed offence.

The Customs Act

The LD warrants were issued under subs 219B(5) or 219B(7) of the Customs Act , according to whether they were in respect of the applicant personally or in respect of premises. Subsections 219B(5)-(8) are as follows:

"(5)

Where, upon application being made to a Judge for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to a particular person, the Judge is satisfied, by information on oath, that:

(a)

the person has committed, or is suspected on reasonable grounds of having committed, or of being likely to commit, a narcotics offence; and

(b)

the use by officials of the agency of a listening device to listen to or record words spoken by or to that person will, or is likely to, assist officials of the agency in or in connection with:

(i)

inquiries that are being made in relation to a narcotics offence that the person has committed or is reasonably suspected of having committed; or

(ii)

if there are circumstances reasonably giving rise to the suspicion that the person is likely to commit a narcotics offence - inquiries that are being made in relation to the likely commission, by that person, of that offence;

the Judge may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by, to or in the presence of that person, and such a warrant may authorize officials of the agency to enter any premises in which the person is, or is likely to be, for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device.

(6)

A Judge may grant a warrant under subsection (5) authorizing the use of a listening device for the purpose of listening to or recording words spoken by, to or in the presence of a person anywhere in Australia.

(7)

Where, upon application being made to a Judge for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to particular premises, the Judge is satisfied, by information on oath, that:

(a)

there are reasonable grounds for suspecting that the premises have been, or are likely to be, used in connection with the commission of a narcotics offence; and

(b)

the use by officials of the agency of a listening device to listen to or record words spoken by or to persons in those premises will, or is likely to, assist officials of the agency in, or in connection with, inquiries that are being made in relation to the use, or likely use, of the premises in connection with the commission of a narcotics offence;

the Judge may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by or to any person while the person is in those premises, and such a warrant may authorize officials of the agency to enter those premises for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device.

(8)

A Judge may grant a warrant under subsection (7) authorizing the use of a listening device in respect of premises situated anywhere in Australia."

The AFP is a "Commonwealth law enforcement agency". The expression "narcotics offence" is defined in subs 219A(1) to mean "an offence punishable as provided by section 235." It is not in dispute that the offence of being in possession, without reasonable excuse, of a prohibited import, namely, heroin, contrary to subs 233B(1) of the Customs Act , is an offence so punishable.

REASONING

Does the Legislation Permit Interception of Communications the Subject of Legal Professional Privilege?

The applicant's first submission is that neither the TI Act nor the Customs Act permits the issue of a warrant authorising interception of communications that are the subject of legal professional privilege. This submission is founded upon the proposition that legal professional privilege is not merely a rule of evidence, but a substantive rule of law "of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen": Baker v Campbell (1983) 153 CLR 52 at 118 (Deane J). The applicant relies on the principle that the presence of general words in a statute "is insufficient to authorise interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required": Coco v The Queen (1994) 179 CLR 427 at 436 (Mason CJ, Brennan, Gaudron and McHugh JJ), referring to the speech of Lord Browne-Wilkinson in Wheeler v Leicester City Council [1985] AC 1054 at 1065.

It is clear that legal professional privilege falls within the presumption that legislation is not intended to interfere with basic common law rights, unless the words of the statute expressly or necessarily require that result: Baker v Campbell , at 123 (Dawson J); see also at 96-7 (Wilson J); and at 117-118 (Deane J). However, the presumption can be displaced by implication. In Coco v The Queen , the joint judgment said this (at 438):

"The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope". (Footnote omitted).

We first consider, in the light of these comments, whether the terms of the TI Act displace the presumption that the legislation is not intended to interfere with the fundamental protection accorded to individuals by legal professional privilege. Section 45 of the TI Act provides that an eligible Judge who is satisfied of the five matters specified in the section "may, in his or her discretion, issue a warrant authorising interceptions of communications made to or from [a telecommunications] service". It will be recalled that for the purposes of the TI Act , subs 6(1) provides that:

" ... interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication".

Paradoxically, the fundamental difficulty confronting the applicant's submission is the breadth of legal professional privilege. The privilege comes into existence immediately a protected communication is made. In Baker v Campbell , Wilson J (at 96) adopted as correct the following statement by Thurlow J of the Canadian Federal Court of Appeal in Re Director of Investigation and Research and Shell Canada Ltd (1975) 55 DLR (3d) 713 at 723:

"[I]t appears to me that the confidential character of such communications, whether oral or in writing, comes into existence at the time when the communications are made. As the right to protection for the confidence, commonly referred to as legal professional privilege, is not dependent on [there] being litigation in progress or even in contemplation at the time the communications take place, it seems to me that the right to have the communications protected must also arise at that time and be capable of being asserted on any later occasion when the confidence may be in jeopardy at the hands of anyone purporting to exercise the authority of the law."

In Carter v Managing Partner, Northmore Hale Davey & Leake (1995) 183 CLR 121, a case involving documents, McHugh J (at 166) emphasised that "[it] is the communication and not the document that needs and is given protection" by legal professional privilege. To the same effect are passages in Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 (HCA/FC) at 554 (Dawson J), 562 (Toohey J), 583 (McHugh J), and 591 (Gummow J).

A warrant issued under s 45 of the TI Act authorises the listening to or recording, by any means, of a communication. It is difficult to see how the legislation could operate effectively or, indeed, at all, if s 45 were to be construed as not authorising the recording or overhearing of privileged communications. Although there was no evidence before the Court as to the means by which communications are intercepted pursuant to a warrant, we understand it to be undisputed that, where an intercept device is installed in respect of a telecommunications service, all conversations taking place over that service, indeed all sounds on the service, are intercepted and are recorded by means of a laser-generated optical disk, which is retained for future use. In general, a person to monitor the communications is on duty about sixteen hours per day, listening to conversations as they occur and are recorded. From the disk, tape recordings can be made of relevant material for later use, if required. What is important is that, as the TI Act allows, conversations are recorded, and often overheard, as they take place. In 1987, when the relevant provisions were enacted in their current form (by the Telecommunications (Interception) Amendment Act 1987 (Cth) ("the 1987 Amendment Act" )), Parliament must have contemplated that this would be the position.

It follows that, as a practical matter, it is impossible to predict in advance whether a particular conversation will or will not contain privileged communications. Similarly, in practice, it will often be impossible to ascertain with any degree of assurance whether a particular conversation is or is not privileged while it is taking place (that is, at the time of the interception authorised by the legislation). For example, if an interception device is placed on the telephone service in a solicitor's office or barrister's chambers, any given conversation involving that lawyer may or may not be privileged. Whether it is privileged, in whole or in part, will depend upon the nature and purpose of the communication. Even a conversation which bears the appearance of a privileged communication may not be privileged. If the lawyer is engaged in a criminal enterprise (as is alleged of the present applicant) he or she might communicate in a manner designed to attract the privilege, yet the communication may not in truth be privileged because it is made in furtherance of an illegal purpose. Conversely, a communication which does not appear on its face to be privileged may, in context, prove to have been made for the purpose of obtaining legal advice.

The position is the same in relation to the interception of communications taking place on a telephone service used by a private individual who is suspected of serious offences. It would generally be reasonable to expect that most of those communications would not be privileged. Yet that individual and others using the service might make telephone calls genuinely for the purpose of seeking and obtaining legal advice. If they do so, their conversations are covered by legal professional privilege. However, it is impossible to know in advance whether any such conversations will take place during the period in which an interception device is in place. It will also often be impossible for those recording the conversation (assuming a monitor is on duty) to determine at the time of the recording whether a particular conversation is or is not privileged.

In our view, having regard to the matters to which we have been referred, the terms of the TI Act rebut the presumption applied in Coco v The Queen and Baker v Campbell . The TI Act would be unworkable if it were to be construed as not authorising the interception of communications subject to legal professional privilege. Section 45 of the TI Act is clearly intended to provide effective powers of interception in relation to specified serious offences. It would frustrate that legislative purpose if warrants could not be relied on to intercept a particular category of communications that is incapable of identification either before or at the time of the interception. In this respect, the present case is distinguishable from Coco v The Queen , in which the listening device provisions of the Invasion of Privacy Act 1979 (Qld) were said to be workable without permitting a grant of unilateral authority to enter upon private property.

These factors also distinguish the present case from decisions which have construed legislation so as not to abrogate legal professional privilege. Baker v Campbell , for example, concerned the former s 10 of the Crimes Act 1914 (Cth) ("the Crimes Act "), which empowered a Justice of the Peace to issue a search warrant authorising the seizure of, inter alia , "anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of [an offence against Commonwealth law]". As Baker v Campbell itself demonstrates, ordinarily the person whose premises are the subject of the search (in that case, a firm of solicitors) will be present at the time of the search and will have the opportunity to assert that particular documents about to be seized are in fact protected by legal professional privilege. Moreover, the warrant itself must identify the things authorised to be seized with certainty: see Arno v Forsyth (1986) 9 FCR 576 (FCA/FC) at 581-582 (Fox J), and Dunesky v Elder (1994) 54 FCR 540 (FCA/FC). In Perron Investments Pty Ltd v Deputy Commissioner of Taxation (WA) (1989) 90 ALR 1 (FCA/FC), it was held that s 264(1) of the Income Tax Assessment Act 1936 (Cth), which empowers the Commissioner to issue notices requiring the furnishing of information and the production of documents, did not abrogate legal professional privilege. However, as Lockhart J (at 10-11) pointed out, s 264 affords the recipient a reasonable time to consider his or her position before complying with its requirements, including an opportunity to seek advice in relation to material which may be privileged.

In our view the same conclusions apply to subss 219B(5) and (7) of the Customs Act . These subsections provide for a Judge in specified circumstances to authorise "[the] use [of] a listening device for the purpose of listening to or recording words spoken by, to or in the presence of [a] person". (Emphasis added.) Again, there was no evidence before us as to how listening devices work. However, we were informed by counsel that, in practice, listening devices operate within their range continually, that is to say, without interruption. Sounds are recorded on a long-life magnetic tape, as "a real time continuous record". A monitor activates a separate recording tape when he or she hears something that is thought to be significant, thereby creating a "smaller working copy". The master tape is retained for future reference and as a check to provide the context of particular conversations recorded on the smaller tape.

In the case of listening devices, as with telephone intercepts, it is in practice impossible to predict in advance whether particular conversations will or will not contain privileged communications. This is true even when a person whose conversations are to be recorded is a legal practitioner. Furthermore, for the reasons which we have already given, it is usually impossible to determine, at the time when communications are being listened to or recorded, whether they are privileged, in whole or in part. Accordingly, in our view, subss 219B(5) and (7) of the Customs Act must also be construed as authorising the "listening to or recording" of communications that are the subject of legal professional privilege.

Legislative History

We have concluded that the TI Act and the Customs Act are intended to override legal professional privilege to the extent necessary to permit privileged communications to be listened to and recorded, without considering the legislative history of the relevant provisions. Indeed, counsel did not refer to that history. Yet, as it happens, the genesis, particularly of the relevant provisions of the TI Act , sheds light on the intention of Parliament.

Section 45 of the TI Act was introduced by the 1987 Amendment Act . Prior to 1987, the TI Act empowered a Judge to issue a warrant in respect of a telecommunications service where (among other requirements) there were reasonable grounds to suspect that the service was being used by a person who had committed a "narcotics offence". The 1987 Amendment Act extended the statutory power so as to authorise the issue of warrants permitting interception where serious offences in addition to narcotics offences were in question.

The TI Act was reviewed by the Royal Commission of Inquiry into Alleged Telephone Interceptions, which reported in 1986. The Royal Commission recommended, inter alia , that the provisions limiting the use of telephone interceptions to drug trafficking offences be removed: Report (AGPS, 1986), Vol 1, 354. The Royal Commission's proposals and a Bill implementing them were, in turn, referred to a Joint Select Committee, which reported in November 1986: Report of the Joint Select Committee on Telecommunications Interception (AGPS, Parliamentary Paper No 306/1986) ("the 1986 Report" ).

The Joint Select Committee accepted that the powers of interception should be extended to serious offences, as recommended by the Royal Commission, but that the number of such offences should be kept to a minimum. Among its many recommendations, the Committee proposed that legal professional privilege should be protected. The relevant paragraph of the 1986 Report is as follows:

"6.44

Legislation should provide that, in the implementation of interceptions, legal professional privilege is protected. The Canadian Privacy Act as amended to 1977 provides the following model:

(1.1)

No authorization may be given to intercept a private communication at the office or residence of a solicitor, or at any other place ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients, unless the judge to whom the application is made is satisfied that there are reasonable grounds to believe that the solicitor, any other solicitor practising with him, any person employed by him or any such solicitor or a member of the solicitor's household has been or is about to become a party to an offence.

(1.2)

Where an authorization is given in relation to the interception of private communications at a place described in subsection (1.1), the judge by whom the authorization is given shall include therein such terms and conditions as he considers advisable to protect privileged communications between solicitors and clients." (Footnote omitted.)

The Telecommunications (Interception) Amendment Bill 1987 (Cth) ("the 1987 Bill ") was introduced as the Government's response to the 1986 Report : see the second reading speech of the Hon L K Bowen QC (House of Representatives, 1987, Debates , Vol. HR 154, 2306). The Attorney-General's second reading speech included a schedule specifying the recommendations of the Joint Select Committee and the Government's responses to them. The Government's response to the recommendation that legal professional privilege be protected was as follows (at 2313):

"Not accepted. The Government does not believe a special exception should be made in this case. Legal professional privilege is already sufficiently protected under the laws of evidence."

The amendments to the TI Act preserve the rule that communications which are subject to legal professional privilege cannot be adduced in evidence, even if lawfully intercepted: see TI Act , subs 74(1) and s 78.

This brief account of the background to the 1987 amendments shows that the Government of the day directed attention specifically to the Joint Select Committee's proposal that legal professional privilege should be protected. It squarely rejected the Committee's proposal. The enactment of the legislation in the form submitted to Parliament by the Attorney-General strongly supports the conclusion that the legislative intention was to override legal professional privilege and to permit the interception of communications that would otherwise be privileged.

The legislative history of subss 219B(5) and (7) of the Customs Act is, of course, different. Those subsections were introduced into the Customs Act by the Customs Amendment Act 1979 (Cth) ("the 1979 Amendment Act "). They therefore predated the comparable provisions of the TI Act and were not the subject of consideration by the Joint Select Committee in its 1986 Report . However, the 1979 Amendment Act was drafted at a time when the orthodox view was that legal professional privilege was limited to judicial or quasi-judicial proceedings. That view, which was confirmed by the High Court in O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1, was almost immediately over-ruled in Baker v Campbell . But in 1979 there was no need for the drafter to address specifically whether the powers to be conferred by subss 219B(5) and (7) should over-ride legal professional privilege. At that time, the privilege was not regarded as a substantive rule of law, and accordingly was not thought to protect communications at and from the time when they took place. It follows that the history of subss 219B(5) and (7) of the Customs Act , although different from that of s 45 of the TI Act, is consistent with the view that Parliament intended those provisions to over-ride legal professional privilege.

The Applicant's Alternative Submission: Relevant Considerations

We now turn to the applicant's alternative submission. The applicant's case in this respect is, and must be, that the issue of the warrants without any condition or restriction protective of legal professional privilege exposes a failure to take into account a consideration which, by law, the Issuers were required to take into account. In our view, the applicant has not made out that case.

Both s 45 of the TI Act and subss 219B(5) and (7) of the Customs Act are similar in structure. Both provide that the designated person "may" issue a warrant if "satisfied" of certain matters. It is not suggested before us that the Issuers were not entitled to be satisfied of those matters. Accordingly, it is not in issue that the discretionary power to issue the warrants arose. The applicant challenges the exercise of the discretionary power, submitting that, on the facts, the discretion could, in accordance with law, only (a) have been exercised in favour of not issuing the warrants at all, or (b) have been exercised only subject to a condition or restriction protective of legal professional privilege.

The likelihood that privileged communications would be intercepted differed as between the warrants. As we have already noted, any warrant might be found to have authorised interception of communications which are protected by legal professional privilege. In the present case, it was highly likely that pursuant to the Chambers LD warrant such communications would be intercepted. The Personal LD warrants authorised the use of a listening device for the purpose of listening to or recording words spoken by, to or in the presence of the applicant (a barrister) anywhere, including in the Chambers. It is not obvious, however, that the Issuers must or ought to have understood that exercise of the authority given by such Personal LD warrants would in fact necessarily result in interception of privileged conversations. Similarly, although the applicant's known profession as a barrister made it possible that conversations protected by legal professional privilege would be intercepted pursuant to the authority given by the Home LD warrant and the various TI warrants, which it will be recalled did not relate to any telephone service installed in his Chambers, it is not obvious that the Issuers must or should have appreciated that this would probably occur.

We proceed on the basis that Jenkinson J, the Issuer of the first "set" of warrants, knew that privileged communications would probably be intercepted pursuant to the exercise of the authority given by the Chambers LD warrant. Indeed, the evidence shows that his Honour gave attention to the matter. We also proceed on the basis that it was foreseeable that some privileged communications might well be intercepted pursuant to all the other warrants.

The applicant's alternative submission, referred to above, raises three questions:

(1)

What are the principles governing the question whether the Issuers were bound to take into account the likelihood of interception, pursuant to exercise of the authority given by the particular warrant sought, of communications protected by a legal professional privilege ("the LPP Consideration")?

(2)

By the application of those principles, were the Issuers required to take into account the LPP Consideration?

(3)

If "yes" to (2), is it established on the evidence that the Issuers failed to take into account the LPP Consideration?

(1) What are the principles governing the question whether the Issuers were bound to take into account the LPP Consideration?

In Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 (FCA/Deane J), Deane J pointed out (at 375) that, where the governing statute does not identify relevant considerations, it is largely for the decision-maker, in the light of matters put forward by the parties, to determine what matters he or she considers relevant and the comparative importance to be accorded to those matters. His Honour said (also at 375):

"The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

In an oft-cited passage in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39-40, Mason CJ said this (case references and citations are omitted):

"(1)

Failure To Take Into Account a Relevant Consideration

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the [ADJR] Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a)

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision:

...

(b)

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: ... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act."

The question to be addressed is therefore whether the subject-matter, scope and purpose of either the TI Act or the Customs Act implied an obligation on the Issuers to take into account the LPP Consideration.

(2) By the application of those principles, were the Issuers required to take into account the LPP Consideration?

There is no express requirement in either the TI Act or the Customs Act that an issuing Judge take into account the likelihood that a warrant will result in the recording or overhearing of privileged communications. As has already been noted, s 45 of the TI Act provides that where the eligible Judge is satisfied of five specified matters (none of which relates to legal professional privilege), that Judge may, in his or her discretion, issue a warrant. Subsections 219B(5) and (7) of the Customs Act are structured in a similar fashion, although the issuing Judge has to be satisfied of fewer matters.

The absence of a specific reference in the TI Act or in the Customs Act to legal professional privilege does not necessarily mean that, in the exercise of the discretion conferred by the legislation, the issuing Judge can disregard the LPP Consideration. As the comments of Mason CJ in Peko-Wallsend make clear, it is a question of construction of the statute, having regard to its subject-matter, scope and purpose, to determine whether a decision-maker is bound to take into account a particular consideration.

The applicant relies on a number of matters to support the contention that the TI Act and the Customs Act require the issuing Judge to take into account the existence of legal professional privilege before deciding to issue a warrant, at least in circumstances where it is likely that privileged communications will be intercepted or recorded. First, he emphasises the absolute nature of legal professional privilege; that is to say, the fact that once the conditions of the existence of the privilege are satisfied, there can be no detraction from the privilege on the ground that it is "outweighed" by any countervailing public interest consideration. In support of this proposition, he refers, for example, to Baker v Campbell , at 96 (Wilson J), Waterford v The Commonwealth (1987) 163 CLR 54, at 64 (Mason and Wilson JJ), and Carter v Managing Partner, Northmore Hale Davey & Leake (1995) 183 CLR 121, at 133 (Deane J) and 166 (McHugh J).

The difficulty with this argument is that the TI Act and the Customs Act plainly permit fundamental rights to be infringed in the interests of the effective investigation and detection of criminal activity. For example, subss 219B(5) and (7) of the Customs Act authorise officials of the AFP to enter premises for the purpose of installing, maintaining, using or recovering a listening device. Similarly, the interest in the privacy of telephone communications, which is recognised but is liable to be displaced pursuant to a TI warrant, may, even in the absence of legal professional privilege, involve great injury over and above the injury caused by interference with privacy. Illustrations may be found in sensitive commercial negotiations and in personal and family communications. Even more telling is the fact that, as we have held, the TI Act and the Customs Act are intended to override legal professional privilege to the extent necessary to permit interception. Thus, the absolute nature of the privilege does not lead to the conclusion that the scope, subject matter and purpose of the TI Act or the Customs Act require the issuing Judge to take into account that a warrant is likely to authorise the interception or recording of privileged communication.

Secondly, the applicant relies upon s 46 of the TI Act , in particular pars 46(1)(e) and 46(2)(a). The effect of those provisions is that where an application is made to an eligible Judge for the issue of a TI warrant in respect of a class 2 offence, the eligible Judge must have regard to the matters listed in subs 46(2), including the extent to which the privacy of any person would be likely to be interfered with, "and to no other matters".

If anything, we think that s 46 tells against the applicant's submission. Paragraphs 46(1)(e) and 46(2)(a) reflect an intention to specify the factors that an eligible Judge must take into account in exercising his or her discretion to issue a warrant in relation to the investigation of class 2 offences (that is, less serious offences). The language of par 46(1)(e) makes it clear that the Judge is bound to take into account the six matters specified in pars 46(2)(a)-(f). The drafting of s 45 of the TI Act is strikingly different. The eligible Judge cannot issue a warrant unless satisfied of the five matters specified in pars 45(1)(a)-(e). Once satisfied of these matters, the Judge is given a discretion to issue the warrant, untrammelled by a statutory direction as to the factors to which he or she must have regard in exercising that discretion.

In our view, the contrast between the drafting of s 45 and s 46 (both of which were inserted into the legislation at the same time) strongly suggests that it was not intended that the eligible Judge would be bound to take into account considerations such as the LPP Consideration. It can be assumed that a Judge is entitled to take such a consideration into account in exercising the power conferred by s 45, depending upon the circumstances of the case. But unless a decision-maker is bound to take into account a particular consideration, his or her decision cannot be set aside for failure to take that consideration into account.

Further support for this conclusion is to be found in the structure of the legislation. The TI Act attempts to balance the protection of privacy against the perceived needs of law enforcement. It protects the interest in privacy by adopting a number of specific safeguards, most of which were proposed by the Joint Select Committee in its 1986 Report (see pars 6.36-6.42). The safeguards include limiting the classes of offences in respect of which warrants may be sought (ss 45, 46 and the definitions of "class 1 offence" and "class 2 offence" in s 5); restricting the issue of warrants to persons holding commissions as Judges (ss 45, 46 and the definition of "eligible Judge" in s 6D); specifying procedural requirements to be satisfied by an agency applying for a warrant (ss 39-44, 45(a), 46(1)(a)); and requiring agencies to meet record-keeping and reporting conditions (Part VIII).

The safeguards in the TI Act also include limitations on the use that can be made of lawfully obtained information. Part VII of the TI Act (ss 62-79) closely regulates the communication and use of lawfully obtained information (see particularly s 67 and the definition of "lawfully obtained information" in s 6E(1)). Section 78 provides that:

"Nothing in [Part VII of the TI Act] renders information ... admissible in evidence in a proceeding to a greater extent than it would have been admissible in evidence in that proceeding if [Part VII] had not been enacted".

The effect of this provision is that legal professional privilege is not destroyed if a privileged communication is intercepted pursuant to a warrant issued under the TI Act . In particular, the privilege survives so as to render the intercepted communications inadmissible in subsequent proceedings.

This is not to understate the use that can be made of privileged communications that have been intercepted pursuant to a TI warrant. Information obtained in this manner can be communicated, used or recorded by an officer of the AFP for any "permitted purpose": see TI Act , s 67 and the definition of "permitted purpose" in subs 5(1). In addition, the information may be passed on to other officials and authorities in accordance with ss 68 and 69 of the TI Act . Nonetheless, s 78 makes it clear that the legislature adverted to, and embraced, the possibility that communications not admissible in evidence in subsequent proceedings might be intercepted pursuant to a TI warrant. This reflects the specific decision of the Government, made at the time the 1987 Bill was introduced, that legal professional privilege should not be protected, otherwise than by the law of evidence.

In our view, the structure of the TI Act lends no support to the contention that an issuing Judge must take into account, before issuing a TI warrant, the LPP Consideration pursuant to the TI warrant if issued. The legislation attempts to balance two competing public interests. Relevantly, these are the interest in effective investigation of crime and the interest in promoting freedom of communication between lawyer and client. The legislation achieves what Parliament considered to be an appropriate balance, by establishing the general safeguards to which we have referred and by continuing the principle that communications subject to legal professional privilege are not admissible in evidence, unless the privilege is waived by the party entitled to the benefit of it.

The structure of the Customs Act , although not identical to that of the TI Act , is sufficiently similar to lead to the same conclusion. The Customs Act incorporates safeguards designed to protect the privacy of individuals. Thus, warrants may be issued only by Judges (subss 219B(5) and (7), and see s 219AA); warrants may be issued only in relation to the investigation of "narcotics offences" (subss 219B(5) and (7), and see the definition of "narcotics offence" in s 219A(1)); information obtained by the use of an LD warrant is not to be divulged or communicated, except for specified purposes (subss 219F(1), (2) and (3), and see the definitions of "prescribed offence" and "relevant proceeding" in subs 219A(1)); the legislation confers a discretion on a court hearing a criminal prosecution to refuse to permit information obtained by the use of an LD warrant to be given in evidence "if it is satisfied that it would be unfair to the accused to admit the information in evidence" (subs 219F(4)); and Commonwealth law enforcement agencies are required to keep records and make reports to the Minister concerning the use of LD warrants (ss 219H, 219K). These provisions suggest that the public interest in protecting communications between lawyer and client is to be served by the general safeguards specified in the legislation and by the control exercised by courts in criminal proceedings, including the discretion to reject evidence that it would be unfair to the accused to admit. They do not suggest that the issuing Judge must take the LPP consideration into account before issuing an LD warrant.

The applicant relied on Arno v Forsyth. In that case, a search warrant under s 10 of the Crimes Act authorised entry into a barrister's chambers and seizure of certain legal opinions. A number of issues arose on the appeal. Fox J held (at 580) that the question whether legal professional privilege attached to the opinions and was maintained by the client was to be dealt with at the time when it was sought to execute the warrant. Jackson J, while not expressing a concluded view, stated (at 597) that he did not think the warrant was "bad on its face" merely because it referred to documents which might ultimately be held to be the subject of legal professional privilege. Lockhart J held (at 589-590) that, where the information on oath suggested that documents which would normally be expected to attract legal professional privilege would be the subject of the proposed search, the issuing justice was obliged to consider legal professional privilege and to endorse the warrant appropriately.

The starting point in Arno v Forsyth was the holding in Baker v Campbell that the doctrine of legal professional privilege applies to documents the subject of a search warrant issued under s 10 of the Crimes Act (at 579-580 (Fox J); at 587 (Lockhart J); at 596 (Jackson J)). It was because of the holding in Baker v Campbell that at least two members of the Court in Arno v Forsyth considered it necessary to address the question of when the protection afforded by legal professional privilege should be taken into account in relation to search warrants. The present case, by contrast, involves legislation which, as we have held, overrides legal professional privilege at least to the extent necessary to permit interception. The judgments in Arno v Forsyth did not consider whether the issuer of a warrant is bound to take into account the LPP consideration in such circumstances. The case is therefore of no assistance on the question we have to decide.

We note, for the sake of completeness, and lest it should be thought that we have overlooked the matter, that the mere existence, in both the TI Act and the Customs Act , of the power to impose conditions or restrictions does not, in our view suggest an obligation to take into account the LPP Consideration.

(3) If "yes" to (2), is it established on the evidence that the Issuers failed to take the LPP Consideration into account?

In view of the answer we have given to the previous questions, it is not necessary to consider this question. Had it been necessary to do so, we would have been of the view that it was not shown that the Issuers failed to take the LPP Consideration into account. As evidence that they did not do so, the applicant points to the lack of any condition or restriction in any of the warrants relating to the LPP Consideration and submits that it is of such importance that a consideration of it must have led to the inclusion of such a condition or restriction.

Each Issuer knew that the AFP investigation was in respect of a practising barrister at law. In the case of the Chambers LD warrant, it was known that the warrant authorised the use of the listening device for the purpose of listening to, or recording, words spoken by or to any person in the Chambers. It is clear on the agreed facts that Jenkinson J took into account the LPP Consideration when deciding to issue the Chambers LD warrant.

In relation to all Issuers, the absence of any condition or restriction directed to the protection of legal professional privilege does not, in our view, establish that the LPP Consideration was not taken into account. The Issuers may be taken to have appreciated that the officers of the AFP would be obliged not to use the information obtained pursuant to any of the warrants except for purposes authorised by statute: see, for example, Johns v Australian Securities Commission (1993) 178 CLR 408 at 423-424 (Brennan J), 436 (Dawson J) and 467 (McHugh J), and subs 63(1) of the TI Act and subs 219F(1) of the Customs Act , both referred to earlier. The obligation of confidentiality incumbent on officers of the AFP is reinforced by ss 70 and 79 of the Crimes Act and s 60A of the Australian Federal Police Act 1979 (Cth).

The Issuers would have appreciated that it would be possible in the course of a criminal trial for the question of legal professional privilege to be determined in the context of all relevant facts; that the existence or non-existence of legal professional privilege is often the subject of dispute which can only be resolved after a contested hearing on evidence; and that the issue of a warrant does not detract from any privilege attaching to a communication listened to or recorded pursuant to it.

In sum, the mere fact that none of the 13 warrants specified a condition or restriction directed to the matter of legal professional privilege is consistent with the Issuers having taken the LPP Consideration into account and decided against the specification of any such condition or restriction.

Applicant's Motion for Leave to Amend

In our view, the applicant's motion for leave to amend should be dismissed with costs. Three considerations lead us to this conclusion:

(1)

Leave to amend would be futile because the duty of disclosure which would be pleaded in the proposed par 76A was not owed by the respective applicants for the warrants.

(2)

The agreed statement of facts do not reveal relevant facts different from those that were before Merkel J on the basis of which his Honour ordered that the paragraphs pleading the duty of disclosure and breach of it be struck out.

(3)

Leave to amend would be futile because if, contrary to our view, the duty of disclosure sought to be pleaded was owed, the agreed facts do not establish that it was breached.

(1) Leave to amend would be futile because the duty of disclosure which would be pleaded in the proposed par 76A was not owed by the respective applicants for the warrants.

In R v Curran and Torney [1983] 2 VR 133 (McGarvie J) (" Curran ") a magistrate's approval was given to the use of a listening device under s 4(3)(a)(i) of the Listening Devices Act 1969 (Vic), pursuant to which conversations were listened to and recorded. During the course of a criminal trial, an issue arose as to the exercise of the trial Judge's discretion to admit into evidence tape recordings of conversations, or parts of conversations, recorded. McGarvie J said (at 150-151):

"I consider that substantial weight is to be accorded to the fact that the approvals from the Magistrates were obtained on statements which were prone to mislead as to the real purpose of the applications, and the fact that the Magistrates were not informed that one of the accused whose conversations were to be listened to had already been charged with the murder. On an application for approval there is a duty to bring to the notice of the Magistrate all the facts material to the decision to be made. This flows from the fact that the application for approval to a course which affects the privacy of others and which would in the absence of the approval be forbidden by the statute, is made without the persons to be affected by the approval being heard: cf. Thomas A. Edison Ltd. v. Bullock (1912), 15 C.L.R. 679, at pp. 682-3, per Isaacs, J. Although I must proceed on the basis that the misleading nature of the supporting statement was due to error arising from a number of persons being involved, and not designed, it was a serious failure to comply with a legal duty. Had the Magistrates been fully and correctly informed of all the material facts their decisions may have been different."

In Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 (FCA/FC) (" Karina" ), in a joint judgment, Sheppard, Foster and Hill JJ said that in the case of a search warrant under the former s 10 of the Crimes Act (see now s 3E of that Act) the applicant for the warrant, like an applicant for ex parte equitable relief in private litigation, was obliged to bring to the notice of the designated person all facts material to the exercise of his or her discretion. Their Honours referred to the duty as "a strict duty of full disclosure of material facts" reflecting the common law's protection of the privacy of individuals against the arbitrary use of the power of entry and search, and accepted that " uberrima fides" is required because the application is made ex parte and courts of equity have always imposed such a duty in such cases (at 481).

Curran and Karina were considered by Ryan J in Freeman v Roberts (1992) 37 FCR 399. His Honour held that certain search warrants issued under s 10 of the Crimes Act were invalid. His Honour expressed the opinion that "the broad policy considerations" identified in Curran and Karina were applicable (at 406). On the basis of the failure, albeit innocent, to observe the "obligation of candour" incumbent upon the officers of the AFP by divulging material to the issuing authority, his Honour held that the warrants were void.

In Rogers v Moore (1992) 39 FCR 201, French J had occasion to address the question of duty of disclosure in the context of search warrants issued under s 10 of the Crimes Act. His Honour said (at 217):

"In considering the range of factors which ought to be drawn to the attention of the issuing justice by the informant, it is necessary to bear in mind the nature of the function being undertaken. It is the administrative act of issuing an investigative process. It is in most cases necessarily ex parte. The application for the issue of a warrant is not a function of its nature congruent in kind with an ex parte application for an interlocutory injunction. While the duty of full disclosure imposed by the courts in such cases to avoid the possibility of misuse of coercive powers is able to be applied in the case of a search warrant, its content is to be determined by reference to the statutory purpose. The purpose of a warrant is not to advance or protect private rights as in an application for an injunction, but to gather information to determine whether an offence has been committed and to facilitate proof of it. Although s 10 of the Crimes Act confers a discretion upon the justice asked to issue a warrant, it does not, having regard to the statutory purpose, require an inquiry into the possible inconvenience of the execution of the warrant proposed. If that were so then, in seeking the issue of a warrant against a private citizen or corporation, the informant might be required to draw to the attention of the issuing justice the particular circumstances of the citizen or corporation so far as they bore upon the issue of disruption to business or private life and the economic loss or effects upon reputation that might flow from the execution of the warrant. The observations of the Full Court in Karina Fisheries in my opinion, would require the disclosure to the issuing justice of matters relevant to the power to issue the warrant."

In Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 (FCA/FC) ( "Lego"), Beaumont and Whitlam JJ, in a joint judgment, addressed the question, "Does an applicant for a warrant under s 10 (1) of the Crimes Act have a `duty' of disclosure?". Their Honours commenced their discussion of the question as follows:

"... in our view, the present question is one of statutory construction and is not to be resolved by reference to the principles of the general law. In particular, the practice in equitable jurisdictions in the grant of discretionary relief, ex parte, in private civil litigation does not, in our opinion, provide an appropriate analogy here. That is to say, in our opinion, the instant matter is to be decided in accordance with the terms, express and implied, of the provisions of s 10 (1) of the Crimes Act, properly construed" (at 555).

Later, on the same page, their Honours continued:

"In other words, it may be one thing to apply the principles discussed in Edison v Bullock in ordinary civil litigation. It is another to seek to apply them in an application for judicial review of a decision to grant a warrant where the statutory authority to grant the warrant contemplates that the application for it will, necessarily, be made ex parte, yet where the statute also requires, in order to protect the legitimate interests of members of the community, that certain conditions be fulfilled before the warrant may be granted.

It follows, in our view, that there is no general, in the sense of abstract, `duty' of disclosure here. This is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half-truth and thus misleading (see eg R v Kylsant [1932] 1 KB 442) would be treated, in this, as in other contexts, as a misrepresentation.

Put differently, the primary question here is not whether the informant was under an obligation to disclose to the justice a particular fact, but whether the statements in the Information were sufficient to satisfy the requirements of s 10(1)."

The third member of the Court, Hill J, described the duty of disclosure incumbent upon an applicant for a search warrant in these terms:

"I have given the matter anxious consideration. In determining what obligation the law requires it is necessary to balance competing policy interests, taking into account the place of a search warrant in the investigatory process, the intrusive nature of a warrant overriding the privacy of the individual whose premises are to be the subject of search, the fact that the warrant is obtained ex parte in an administrative process and the nature of the question which is to be determined by the magistrate or Justice (acting judicially) before whom the issue of the warrant comes. Having regard to these matters it seems to me to impose too great an obligation upon the informant to say that the law (in the present case, s 10) implies a legal obligation to place before the magistrate or Justice all material in the possession of the informant or known to the informant which might bear upon the decision which must be made. The nature of the issue to be determined, one of suspicion of the existence of things and suspicion or belief as to the committal of an offence, suggests to me that the obligation could not be intended to be imposed in terms of objective criteria. Thus it seems to me that the obligation should be stated in terms of an obligation to ensure that the material before the magistrate or Justice is not such as to mislead and that any omission of relevant material was inadvertent. This is merely another way of saying that the informant must in compiling the information act in `good faith'.

The power to lay an information before a magistrate or Justice for the issue of a warrant, like all powers, must be exercised in good faith and for the purpose for which the power was conferred. If the informant does exercise the power in good faith then the issue of the warrant can not be criticised upon the basis that material was inadvertently excluded from the magistrate's attention. Absent good faith upon the part of the informant the result will be different" (at 569).

In Flanagan in the context of a TI warrant issued under s 46 of the TI Act , Beaumont, Ryan and Lindgren JJ, in a joint judgment, said:

"The history of this area tends to support the view that there is no general duty of disclosure imposed on the applicant agency otherwise than by the legislative scheme of the statutory code. It will be recalled that s 46(1)(e) provides that the eligible Judge is to have regard to the matters referred to in s 46(2) Q and to no other matters' ... (our emphasis)" (at 217D).

None of these decisions governs the present case, which relates to TI warrants issued under s 45 of the TI Act and LD warrants issued under s 219B of the Customs Act . However, we think that the preponderance of authority may now be taken to favour the view that there is no general duty of disclosure imposed on an applicant for a TI warrant under s 45 or on an applicant for an LD warrant under s 219B.

We should add that, in the case of the TI Act , that view receives support from the detailed requirements set out in ss 40-43, with which an applicant for a warrant must comply. The specification of such requirements does not sit easily with a statutory intention that an applicant for a warrant is subject to a duty to disclose all material facts to the issuing Judge. Moreover, subs 44(1) of the TI Act specifically empowers a Judge to require further information to be given in connection with an application for a warrant. The existence of this power suggests that there may well be matters not disclosed to an issuing Judge that he or she nevertheless might reasonably consider material and in respect of which he or she might reasonably require the applicant to provide further information.

For these reasons, in our view, there is no general duty of the kind described by the applicant in the proposed par 76A. On that basis it would be futile to grant the leave to amend, which the applicant seeks.

(2) The agreed statement of facts do not reveal relevant facts different from those that were before Merkel J on the basis of which his Honour ordered that the paragraphs pleading the duty of disclosure and breach of it be struck out.

The only fact that has become known since the hearing before Merkel J is that conversations overheard and recorded pursuant to the Chambers LD warrant, the second and third Personal LD warrants, and all three of the Mobile and Home LD warrants included some material which was or bore the semblance of being privileged communications. But this further fact does not show that "any factual inferences that [Merkel J drew] or the factual assumptions [he] made, particularly as to disclosure to the eligible Judges of matters relating to the applicant", were incorrect. Awareness of it would have made no difference to the result before Merkel J.

(3) Leave to amend would be futile, because if, contrary to our view, the duty of disclosure sought to be pleaded was owed, the agreed facts do not establish that it was breached.

This proposition is related to the second outlined above.

The proposed par 76A would plead a duty to disclose "all matters which, if disclosed ... and not properly considered ..., would vitiate the warrant." The proposed par 76B would plead breach in the form of a failure to disclose the likelihood of interception of privileged conversations. The agreed statement of facts was set out earlier.

"Likelihood" is a matter of inference from primary facts. The Issuers were as well placed as the applicants for the warrants were to draw inferences as to the likelihood that protected conversations would be intercepted. The material primary facts as to the applicant being in active practice as a barrister and the location of his Chambers were disclosed. The further fact of which the AFP became aware, that some conversations overheard and recorded "included material which was or bore the semblance of communications which were the subject of legal professional privilege" (par 14 of the agreed statement of facts) is no more than what would have been foreseen by a later Issuer as being a "real possibility" or something that "might well" happen, in any event, based on the primary facts disclosed to him.

CONCLUSION

The application should be dismissed with costs.