Coco v The Queen

(1994) 72 A Crim R 32
(1994) 120 ALR 415
[1994] Aust Torts Reports 81-270

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(Judgment by: Mason J, Brennan J, Gaudron J, McHugh J)

Coco
v The Queen

Court:

Judges:
Mason J
Brennan J
Gaudron J
McHugh JDeane J
Dawson J
Toohey J

Legislative References:
Invasion of Privacy Act 1971 - s 43(2); s 43(1); s 46; Part IV
Australian Federal Police Act 1979 - s 12; s 35
Commonwealth Police Act 1957 - s 6(4)
Crimes Act 1914 - s 73(3)

Case References:
Entick v Carrington - (1765) 2 Wils KB 275
Halliday v Nevill - (1984) 155 CLR 1
Plenty v Dillon - (1991) 171 CLR 635
Colet v The Queen - (1981) 119 DLR 521
Morris v Beardmore - [1981] AC 446
Wheeler v Leicester City Council - [1985] AC 1054
Marcel v Commissioner of Police - [1992] Ch 225
Chu Kheng Lim v Minister for Immigration - (1992) 176 CLR 1
Lyons v The Queen - (1984) 14 DLR 482
Anisminic v Foreign Compensation Commission - [1969] 2 AC 147
Baker v Campbell - (1983) 153 CLR 52
Hamilton v Oades - (1989) 166 CLR 486
Bropho v Western Australia - (1990) 171 CLR 1
Mortimer v Brown - (1970) 122 CLR 493
Pyneboard Pty Ltd v Trade Practices Commission - (1983) 152 CLR 328
Sorby v The Commonwealth - (1983) 152 CLR 281
Dalia v United States - (1979) 441 US 238
National Mutual Life Association of Australasia Ltd v Godrich - (1910) 10 CLR 1
Shaw v Coco - (1991) 102 ALR 75

Hearing date: 17 November 1993
Judgment date: 13 April 1994

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Judgment by:
Mason J
Brennan J
Gaudron J
McHugh J

The facts of this matter have been set forth in the reasons for judgment prepared by Toohey J.

The questions which arise for decision are:

(1)

Did s43(2)(c) of the Invasion of Privacy Act 1971 (Q) ("the Queensland Act") confer authority on Carter J to authorise entry onto premises for the purposes of installing and maintaining listening devices in circumstances where that entry otherwise would have constituted an unlawful trespass?

(2)

If not, was the approval granted by Carter J for the use of listening devices wholly void?

(3)

If the approval was wholly void, did s12 of the Australian Federal Police Act 1979 (Cth) ("the Federal Act") have the effect that the Australian Federal Police officers did not require approval from a Supreme Court judge before using a listening device?

If the approval was not wholly void, a number of other issues arise. However, as a result of the view we take on the validity of the approval as a whole, it is not necessary to address those issues. It is convenient to consider these questions in the order in which we have stated them.

THE AUTHORITY CONFERRED BY S43(2)(C) OF THE QUEENSLAND ACT

According to its long title, the Queensland Act is an Act to make provision for, among other things: "regulating the Use of Listening Devices".

S43(1) makes it an offence to use "a listening device to overhear, record, monitor or listen to a private conversation". S43(2) provides that s43(1) does not apply in various situations described in that subsection. In particular, s43(2)(c) provides that s43(1) shall not apply:

"to or in relation to the use of any listening device by - (i) a member of the police force acting in the performance of his duty if he has been authorised in writing to use a listening device by - (a) the Commissioner of Police; (b) an Assistant Commissioner of Police; or an officer of police of or above the rank of Inspector who has been appointed in writing by the Commissioner to authorise the use of listening devices, under and in accordance with an approval in writing given by a judge of the Supreme Court in relation to any particular matter specified in the approval".

S43(3) deals with the granting of approval by a judge for the use of a listening device. The subsection provides that the judge shall have regard to: "(a) the gravity of the matters being investigated; (b) the extent to which the privacy of any person is likely to be interfered with; and (c) the extent to which the prevention or detection of the offence in question is likely to be assisted, and the judge may grant his approval subject to such conditions, limitations and restrictions as are specified in his approval and as are in his opinion necessary in the public interest".

It is common ground that, subject to the possible operation of s12 of the Federal Act, if the use of the listening devices was not authorised by Carter J in the present case under s43(2)(c), evidence of the relevant conversations heard by means of the listening device was not admissible by reason of the prohibition in s46(1). That subsection renders evidence of the tape-recordings inadmissible if that evidence was procured "as a result, direct or indirect, of the use of a listening device used in contravention of s43". The question whether the approval given by Carter J. purportedly under s43(2)(c) was valid is not answered by showing that Carter J made a mere error of fact or law in giving an approval for the use of listening devices. The question is whether the giving of that approval involved a jurisdictional error.

Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right ^[1] . In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law ^[2] . Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct ^[3] . But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon ^[4] : "[I]nconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights".

In England, Lord Browne Wilkinson has expressed the view 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 authorisation express words are required ^[5] . That approach is consistent with statements of principle made by this Court, to which we shall shortly refer. An insistence on the necessity for express words is in conformity with earlier judicial statements in England which call for express authorisation by statute of any abrogation or curtailment of the citizen's common law rights or immunities. Thus, in Raymond v Honey, Lord Bridge of Harwich stated that ^[6] : "a citizen's right to unimpeded access to the courts can only be taken away by express enactment".

And, in Morris v Beardmore, Lord Scarman observed ^[7] : "When for the detection, prevention, or prosecution of crime Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation."

The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights ^[8] . So long as the requirement for express statutory authorisation is understood in the sense explained above, we would accept the requirement as a correct statement of principle. At the same time, in our view, the principle was expressed more simply by Brennan J in Re Bolton; Ex parte Beane ^[9] in these terms: "Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."

In Bropho v Western Australia ^[10] , Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is: "'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used' ^[11] " At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.

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 emphasise that the test is a very stringent one ^[12] . 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.

S43 of the Queensland Act does not contain express words conferring power upon a Supreme Court judge to authorise conduct which would otherwise be tortious and involve interference with a fundamental common law right. In this case, the installation of the listening device in the premises of Cosco Holdings Pty Ltd ("Cosco") infringed the fundamental right of a person to exclude others from his or her property. S43 authorizes an invasion of privacy by allowing, in certain circumstances, the monitoring and recording of private conversations. The question is whether it also allows a judge to authorise members of the police force to enter onto premises in such a way as would otherwise amount to a trespass in order to install the devices.

The requirement in s43(3)(b) that the judge shall have regard to "the extent to which the privacy of any person is likely to be interfered with" does not necessarily or clearly point to authorisation of entry onto premises. In the context in which it appears, it points naturally to interference with the privacy of communication.

The respondent argued that, in the context of s43(3), authorisation "to use a listening device" extends to installation of a listening device where it is necessary to enter onto premises in order to listen to a private conversation. One answer to that argument is that the word "use" has a narrower meaning. That meaning is to be gleaned from the definition of "listening device" in s4 of the Queensland Act. The definition is in these terms: "'listening device' means any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place" (emphasis added).

The other and more compelling answer is that there is no clear expression in the legislation of an unmistakable and unambiguous intention to confer such a power. In our view, it cannot be said that there is to be implied in s43 power in a judge to authorise conduct which otherwise would amount to a trespass. Support for this view is provided by the dissenting judgments in Reference re an Application for an Authorisation ^[13] and Dalia v United States14. Each of these cases concerned the question whether there should be implied into a statute authorising the use of listening devices the power to effect otherwise tortious entry to install such devices.

In Dalia v United States, Stevens J adopted as his starting point the proposition that "it is most unrealistic to assume that Congress granted such broad and controversial authority to the Executive without making its intention to do so unmistakably plain" ^[15] . In his Honour's view, the implication of such powers into the statute was "especially anomalous" because the statutory regime established to regulate the use of listening devices was "in all other respects ... exhaustive and explicit" ^[16] . According to Stevens J ^[17] : "Congressional silence should not be construed to authorise the Executive to violate state criminal laws or to encroach upon constitutionally protected privacy interests ... Without a legislative mandate that is both explicit and specific, I would presume that this flagrant invasion of the citizen's privacy is prohibited".

It may be that Stevens J was influenced by constitutional considerations not present in the Australian context. However, the same comment cannot be made about the dissent of Dickson J in Reference re an Application for an Authorisation, as the question in that case arose for decision before the introduction of the Canadian Charter of Rights and Freedoms. In that case, Dickson J held that a judge granting an authorisation to use a listening device under the relevant Canadian legislation did not possess any authority to include a right of entry as a term of authorisation ^[18] .

First, Dickson J was not convinced that the interception of communications contemplated by the statute could not have been achieved without a trespass; interception may well have been more difficult, but it would not have been impossible. "The fact that [communications] could perhaps be intercepted more frequently and more conveniently if there were such a power constitutes ... scant justification for inferring such a power" ^[19] . Secondly, Dickson J preferred, as we do, the dissenting opinion of Stevens J in Dalia v United States - that where ^[20] : "a legislative scheme speaks in considerable detail about most aspects of an issue, but is silent on one aspect, that silence is particularly telling ... Parliament's silence cannot be taken to sanction what amounts to breaking and entering."

And, if the statute did not explicitly or implicitly legalise a trespass for the purpose of installing a listening device, then there could be no power in a judge to authorise such an illegality ^[21] . The scheme in question in this case, established by Pt4 of the Queensland Act, is different in its precise words from the legislation in question in Lyons and Dalia. However, like the legislation in issue in those cases, Pt4 provides a detailed regime governing the use of listening devices and the publication of conversations recorded or overheard through the use of listening devices. S43(1) of the Act prohibits the use of listening devices to overhear private conversations. S43(2) provides a number of exceptions to the general prohibition in s43(1), including provision for a judge of the Supreme Court to authorise the use of such a device ^[22] , , where a person unintentionally overhears a private conversation by means of a telephone (s43(2)(b)), where a Commonwealth customs officer is authorised by the Comptroller-General of Customs and Excise to use a device (s43(2)(c)(ii), and where a person "employed in connexion with the security of the Commonwealth" acting under a Commonwealth Act uses a device (s43(2)(c)(iii)).) and s43(3) lists three matters to which the judge is to have regard:

"(a) the gravity of the matters being investigated; (b) the extent to which the privacy of any person is likely to be interfered with; and (c) the extent to which the prevention or detection of the offence in question is likely to be assisted".

S43(3) also allows for the judge to limit or restrict his or her approval where necessary in the public interest. Once an authorisation is granted, s43(5) requires the Commissioner of Police to inform the Registrar of Commercial Acts of the authorisation and report to the Registrar each month. S43(6) prohibits any person who uses a listening device to listen to a conversation pursuant to an authorisation from communicating or publishing the conversation except in the performance of his or her duty. The Act also contains detailed provisions dealing with the publication of private conversations unlawfully listened to ^[23] and the publication of private conversations by parties to such conversations ^[24] . Any evidence of private conversations obtained "as a result ... of the use of a listening device used in contravention of s43" is inadmissible as evidence, subject to certain exceptions ^[25] . Provision is made for the destruction of information not relating to a criminal offence obtained by the authorised use of a listening device ^[26] . Finally, advertising of listening devices is prohibited ^[27] . The regulatory regime established by Pt4 is clearly intended to protect persons from the invasion of privacy involved in the use of a listening device to overhear and record private conversations. The absence of any reference to a power of entry in this detailed and protective regime tells against the argument that such a power is to be implied ^[28] .

Further, it has not been suggested that such listening devices as existed at the time the legislation was enacted could not be used without making entry for installation which would amount to a trespass. Although it may be that many devices required entry to premises for installation, this cannot be said of all devices. Further, as Dickson J observed ^[29] , lawful entry may be gained to the premises to effect installation through the cooperation of a person who has a legal right of entry to the premises.

It follows that, in our view, the Queensland Act did not confer power on Carter J. to authorise entry onto the premises of Cosco. In the light of this conclusion, it is necessary to examine the validity of Carter J's approval.

THE VALIDITY OF CARTER J'S APPROVAL

On 26 October 1989, Carter J approved the use of listening devices in relation to the relevant investigations. Para1 of the order was in these terms: "1. That Kenneth Charles SCANLAN of the Queensland Police Force by himself or by means of any other person engaged in or assisting the investigation of the said matter, use any listening device or devices capable of recording, overhearing, monitoring or listening to a private conversation simultaneously with its taking place, such listening device or devices to be installed in premises occupied by Santo Antonio COCO at 11 Anzac Road, Carina, and premises occupied by COSCO Holdings Pty Ltd at corner of Antimony and Emery Streets, Carole Park in the State of Queensland."

The approval was expressed to be subject to certain conditions, the first of which was expressed as follows: "1. That any authorised Police Officer or person engaged in, or assisting the investigation of the said offence, to enter and remain upon the said premises for the purposes of installing, maintaining, servicing and retrieving the said listening device or devices."

This condition does not make sense unless additional words are supplied. One possibility is to read in the words "is otherwise authorised" before the words "to enter and remain". If these words are supplied, the grant of approval would be subject to any police officer or person investigating the offence being otherwise lawfully authorised to enter and remain upon the premises for the purposes mentioned. But it could not have been intended to make the approval subject to every person engaged in or assisting the investigation being so authorised. The only persons needing such authorisation were those installing, maintaining, servicing and retrieving the listening devices.

The other and, in our view, more likely possibility is that the words "is hereby authorised" should be inserted before the words "to enter and remain". Although it would not have been necessary to authorise all those engaged in or assisting the investigation, Carter J, considering that he had power to do so, might well have thought it desirable to grant an approval in those terms. As it happens, s43(2)(c) does not confer such a power. Nonetheless, the terms of the approval indicate that the question which Carter J addressed was whether he had power to approve and should approve the installation of listening devices at the premises of Cosco and the appellant and the use of the devices so installed. The terms of the approval show that he misapprehended the power that the statute conferred. He purported to exercise a power different from the power reposed in him.

Therefore, the question that arises is whether the part of Carter J's order purporting to authorise entry (contained in "condition 1", but also encompassing part of para1 of the approval) can be disregarded so as to leave on foot a valid approval for use of the device in so far as that use did not involve otherwise unlawful entry onto premises. The argument in favour of total invalidity was presented as an issue of severability. However, in our view, the question of validity depends upon what was a misapprehension by Carter J of the nature and scope of the discretionary power which was conferred by s43(2) of the Queensland Act.

It follows from what we have already said that Carter J misapprehended the nature and scope of the power. By so doing, he misconstrued the statute which gave him jurisdiction, addressed an irrelevant consideration and exceeded his jurisdiction ^[30] . This error might also be characterised as an error on the face of the record.

The extraneous factor to which Carter J had regard, namely, the perceived necessity to approve entry onto private property for the purpose of installing, maintaining, servicing and retrieving listening devices, not only contributed to the making of the decision to approve the use of the listening devices but it also took the form of an invalid authorisation to enter onto private property. No doubt in some circumstances it is possible to disregard that part of the decision that goes beyond power and treat as valid that part of the decision which is within power. But that must become a much more contentious exercise when the invalid part of the decision has influenced the making of the valid part of the decision. In this case, the approval is expressed in such a way as to make it appear that authorisation to enter private property was an integral and essential element in the approval to use the listening devices. So much is made clear by the reference to installation in both the paragraph which constitutes the approval and the first condition. In this situation there is no scope for speculation, on the assumption that speculation is legitimate, about what Carter J would have done had he appreciated that authorisation of entry onto private property was beyond power.

If it were necessary to consider the question from the viewpoint of severance, we would come to the conclusion that it is not possible to sever. The fact that what is bad is an integral and essential element of what is good leads to the conclusion that the approval is wholly void.

In this respect the respondent accepted that the existence of the authority did not preclude an attack on its validity in these proceedings in order to determine whether the evidence obtained by use of the listening device was admissible against the appellant. It is clear that the approval and the warrants are administrative and not judicial orders ^[31] . S12 OF THE FEDERAL ACT S12, so far as is relevant, provides: "A member or staff member is not required under, or by reason of, a law of a State or Territory: (a) to obtain or have a licence or permission for doing any act or thing in the exercise of his powers or the performance of his duties as a member or staff member".

The argument is that s12(a) authorises a member of the Federal Police, without either the approval or the authorisation required by s43, to do what would be permissible by a State police officer only pursuant to s43(2)(c) of the Queensland Act. In our view, s12 is not capable of being given the broad operation for which the respondent contends. It may be that s12 overcomes the need under State or Territory law to have a simple licence or permission, e.g. a driver's licence or a licence to carry firearms. But to say that falls far short of saying that s12 also applies so as to dispense with the necessity for approval under s43(2)(c) of the use of a listening device under a statutory regime which gives very careful attention to the need to ensure that the decisionmaker balances the interests of privacy with the public interest in investigating criminal offences and in preventing and detecting such offences.

S12(a), in its reference to "licence or permission" is ambiguous; it is not clear precisely what is contemplated by this phrase. Further, the meaning contended for by the respondent is so wide as to be, in our view, unreasonable. Accordingly, it is appropriate to consider extrinsic material in ascertaining the meaning of the section ^[32] . When the legislative history of s12 is examined, it can be seen that the section was adopted from s6(4) of the Commonwealth Police Act 1957 (Cth), at the time when the Commonwealth Police Force became the Australian Federal Police ^[33] . The debates in the House of Representatives on the Commonwealth Police Bill reveal that s6, as a whole, was ^[34] : "designed to confer upon Commonwealth police officers, in relation to the laws of the Commonwealth, all the powers and duties of State police officers either at common law or by the statute law of the States".

Thus, it is clear that Parliament did not intend, by s12 of the Federal Act, to confer on the Federal Police powers wider than those enjoyed by State police.

To illustrate the operation of s12, the example of firearms, referred to above, is instructive. Under, for example, s5 of the Firearms Act 1989 (NSW), no person is permitted to possess a firearm unless authorised to do so by a licence or permit. However, under s4(2)(a) of the Firearms Act, a member of the New South Wales Police Service is not required to comply with s5 ^[35] . S4 of the Firearms Act is silent as to Federal Police officers; however s12 of the Federal Act would operate in these circumstances so that a Federal Police officer would not be required to comply with s5 when possessing a firearm in the performance of his or her duties.

In relation to the use of a listening device, however, the position is significantly different. Under s43 of the Queensland Act, a member of the Queensland Police Service is required to have an authority to use a device. Accordingly, if Federal Police officers are to be placed in substantially the same position as State police officers, and not to have powers greater than those of State police (except in so far as is expressly provided elsewhere in the Federal Act), then s12 should not be given an operation that would allow Federal Police officers to do, without authority, what could be done by State police officers only with authority.

CONCLUSION

It follows from all that we have said that the evidence of the appellant's private conversations was obtained by means of the use of a listening device contrary to s43 of the Queensland Act and was inadmissible.

The appeal must be allowed. The respondent conceded in argument that, if the evidence obtained by use of the listening device was inadmissible, then the appellant's conviction should be quashed and a new trial ordered. Accordingly, we would quash the appellant's conviction and order a new trial.