Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 (14 March 1985)

HIGH COURT OF AUSTRALIA

HILTON v. WELLS [1985] HCA 16; (1985) 157 CLR 57

Constitutional Law - Evidence

High Court of Australia

Gibbs C.J.(1), Mason(2), Wilson(1), Deane(2) and Dawson(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Separation of powers - Federal courts - Judicial power - Administrative powers - Whether non-judicial power conferred on federal court - Power to issue warrant authorizing federal police to intercept telephone communications conferred on judges of Federal Court - Whether power conferred on court or on judge as persona designata - The Constitution (63 & 64 Vict. c. 12), Ch. III - Telecommunications (Interception) Act 1979 (Cth), ss. 7, 18, 19, 20.

Evidence - Prohibition of interception of communications passing over telecommunications system - Admissibility in evidence of information illegally obtained - Telecommunications (Interception) Act 1979 (Cth), s. 7.

HEARING

1985, March 7, 8, 14. 14:3:1985

CAUSE removed pursuant to s. 40 of the Judiciary Act 1903 (Cth).

DECISION

GIBBS C.J., WILSON and DAWSON JJ. The applicant has been charged on the information of the third respondent that between 1 October 1982 and 1 August 1983 at Sydney he conspired with Fayez Hakim, Keith Godfrey Harris and Rex Frederick Jackson to bribe Rex Frederick Jackson who was then a Minister of the Crown. Committal proceedings in respect of the offence have been commenced but are not yet completed. It is stated that the evidence relied on to implicate the applicant in the conspiracy consists almost solely of conversations alleged to have taken place between him and Hakim and Harris on the telephone, which conversations were intercepted by the Australian Federal Police and recorded on tape recorders. The interceptions were allegedly made under the authority of six warrants, obtained by the first respondent, a member of the Australian Federal Police, under s.20 of the Telecommunications (Interception) Act 1979 (Cth), as amended ("the Act"). Two of the warrants were issued by St. John J. and four by McGregor J., both of whom are judges of the Federal Court of Australia and who signed the warrants in that capacity. As it happens both were also judges of the Supreme Court of the Australian Capital Territory. The solicitor for the applicant alleges that he has seen a Federal Police document which purported to be a log of all telephone conversations allegedly intercepted by Federal Police pursuant to the six warrants and that as far as he could ascertain from the log there was no conversation which could be said to implicate the applicant or his co-accused in any drug offence that had been committed or was likely to be committed. The applicant has made application to the Federal Court of Australia for the quashing of the warrants and for certain declarations and other orders. Part of the proceeding pending in the Federal Court has been removed into this Court. The part of the cause removed raised two questions: (1) whether s.20 of the Act is beyond the power of the Parliament of the Commonwealth; and (2) whether s.7 of the Act prohibits the admission into evidence, in proceedings for an offence of the description in par.7(6)(c) of the Act, of information obtained by an illegal interception of a communication passing over a telecommunications system.

2. Section 7 of the Act provides as follows:

"(1) A person shall not -

(a) intercept;

(b) authorize, suffer or permit another

person to intercept; or

(c) do any act or thing that will enable him

or another person to intercept,

a communication passing over a telecommunications

system.

Penalty: $5,000 or imprisonment for 2 years.

(2) Sub-section (1) does not apply to or in

relation to -

(a) an act or thing done by an officer of the

Commission in the course of his duties

for or in connection with -

(i) the installation of any line, or the

installation of any apparatus or

equipment, used or intended for use

in connection with a

telecommunications service or the

operation or maintenance of a

telecommunications system; or

(ii) the identifying or tracing of any

person who has contravened, or is

suspected of having contravened or

being likely to contravene, a

provision of the Telecommunications

Act 1975 or of any regulation or

by-law in force under that Act; or

(b) the interception of a communication in

pursuance of a warrant.

(3) The reference in sub-section (2) to a line

shall be read as a reference to a wire, cable,

tube, conduit, fibre, waveguide or other physical

medium installed or maintained by or with the

authority of the Commission and used, or intended

for use, in connection with a telecommunications

service.

(4) A person shall not divulge or communicate

to another person, or make use of or record, any

information obtained by intercepting a

communication passing over a telecommunications

system, or obtained by virtue of a warrant issued

under section 11 or 21, except -

(a) in or in connection with the performance

by the Organization of its functions or

otherwise for purposes of security;

(b) for the purpose of narcotics inquiries

that are being, or have been, made by

members of the Australian Federal Police;

or

(c) in the performance of any duty of that

first-mentioned person as an officer of

the Commission.

Penalty: $5,000 or imprisonment for 2 years.

(5) Notwithstanding sub-section (4) -

(a) the Director-General of Security may, by

himself or by an officer authorized by

him, communicate, in accordance with

paragraph 18 (3) (a), (b) or (c) of the

Australian Security Intelligence

Organization Act 1979, information

obtained by intercepting a communication

passing over a telecommunications system,

or obtained by virtue of a warrant issued

under section 11;

(b) the Commissioner of Police may, in

accordance with the following

sub-paragraphs, by himself or by a member

of the Australian Federal Police

authorized by him, communicate

information obtained by intercepting a

communication passing over a

telecommunications system, or obtained by

virtue of a warrant issued under section

21:

(i) where the information relates, or

appears to relate, to the

commission, or intended commission,

of an offence against the law of the

Commonwealth or of a State or

Territory, being an offence

punishable by imprisonment for life

or for a period, or maximum period,

of not less than 3

years - information may be

communicated to a member of the

Australian Federal Police for the

purposes of investigations into the

offence or to an officer of the

Police Force of a State or

Territory, as the case may be; or

(ii) where the information relates, or

appears to relate, to activities

prejudicial to security - the

information may be communicated to

the Director-General of Security;

and

(c) a member of the Australian Federal

Police, or an officer of the Police Force

of a State or Territory, may, in the

course of performing his duties as such a

member or officer, communicate to another

member of the Australian Federal Police

or to another officer of that Police

Force, as the case may be, information

that was communicated to him in

accordance with paragraph 18 (3) (a) or

(b) of the Australian Security

Intelligence Organization Act 1979 or

with sub-paragraph (b) (i) of this

sub-section.

(6) Without limiting the application of

sub-section (4), a person may give information

obtained by intercepting a communication passing

over a telecommunications system, or obtained by

virtue of a warrant issued under section 11 or 21,

in evidence in a proceeding -

(a) by way of a prosecution for a narcotics

offence;

(b) by way of a prosecution for an offence

against the Telecommunications Act 1975

or a regulation or by-law in force under

that Act;

(c) by way of a prosecution for any other

offence against the law of the

Commonwealth or of a State or Territory

punishable by imprisonment for life or

for a period, or maximum period, of not

less than 3 years;

(d) by way of an application for an order

under sub-section 243B (1) of the Customs

Act 1901; or

(e) for the condemnation or recovery of a

ship or aircraft, or of goods, seized

under section 203 of the Customs Act 1901

in connection with the commission of a

narcotics offence.

(7) An offence against this section may be

prosecuted either summarily or upon indictment,

but -

(a) an offender is not liable to be punished

more than once in respect of the same

offence;

(b) the offence shall not be prosecuted

summarily except in the name of the

Attorney-General or the Director of

Public Prosecutions; and

(c) where the offence is prosecuted

summarily, the court shall not impose a

penalty exceeding a fine of $1,000 or

imprisonment for 6 months."

3. Part III contains provisions empowering the Attorney-General to issue warrants authorizing the Director-General of Security or an officer of the Australian Security Intelligence Organization appointed by the Director-General to intercept telecommunications (s.9(1)) and authorizing the Australian Telecommunications Commission ("the Commission" - s.5(1)) to inspect and copy telegrams (s.11(1)) for reasons of security. Part IV contains provision for the issue by judges of warrants authorizing the Australian Federal Police to intercept telecommunications and telegrams. The provisions with which we are particularly concerned when considering the first of the two questions raised for decision are those of ss.18, 19 and 20(1) and (2), which read as follows:

"18. In this Part, "Judge" means -

(a) a Judge of the Federal Court of Australia

or of the Supreme Court of the Australian

Capital Territory;

(b) a Judge of the Supreme Court of a State

in respect of whom an appropriate

arrangement in force under section 19 is

applicable; or

(c) a Judge of the Supreme Court of the

Northern Territory who is not a Judge

referred to in paragraph (a) and in

respect of whom an appropriate

arrangement in force under section 19 of

this Act is applicable.

19. (1) The Governor-General may make

arrangements with the Governor of a State for the

performance by all or any of the persons who from

time to time hold office as Judges of the Supreme

Court of that State of the functions of a Judge

under this Part.

(2) The Governor-General may make

arrangements with the Administrator of the Northern

Territory for the performance by all or any of the

persons who from time to time hold office as Judges

of the Supreme Court of that Territory and are not

also Judges of the Federal Court of Australia or of

the Supreme Court of the Australian Capital

Territory of the functions of a Judge under this

Part.

20. (1) Where, upon application being made to

a Judge by a member of the Australian Federal

Police for the issue of a warrant under this

section in respect of a telecommunications service,

the Judge is satisfied, by information on oath,

that -

(a) there are reasonable grounds for

suspecting that the telecommunications

service is being, or is likely to be,

used by a person who has committed, or is

suspected on reasonable grounds of having

committed, or of being likely to commit,

a narcotics offence; and

(b) the interception by members of the

Australian Federal Police of

communications made to or from the

telecommunications service will, or is

likely to, assist members of the

Australian Federal Police 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 the person, of that

offence,

the Judge may, by warrant under his hand in

accordance with the prescribed form, authorize

persons approved under section 22 in respect of the

warrant to intercept, subject to any conditions or

restrictions that he sees fit to specify in the

warrant, communications that are being made to or

from that service and such a warrant may authorize

entry on any premises specified in the warrant for

the purposes of installing, maintaining, using or

recovering any equipment used to intercept such

communications.

(2) A Judge may grant a warrant under

sub-section (1) in respect of a telecommunications

service situated anywhere in Australia."

4. By s.21 power is given to a judge to issue a warrant authorizing the Commission to inspect and copy telegrams.

5. The argument presented by Mr Ellicott on behalf of the applicant commences with the proposition, established by the Boilermakers' Case [1956] HCA 10; (1956) 94 C.L.R. 254; (1957) 95 C.L.R. 529, (1957) A.C. 288 that it is not permissible, under the Constitution, for the Parliament to confer any non-judicial power on any court established under Ch.III of the Constitution unless the power conferred is merely ancillary or incidental to the exercise of judicial power. The learned Solicitor-General for the Commonwealth wished, if necessary, to seek leave to challenge the correctness of the Boilermakers' Case, but the question whether we should allow the decision in that case to be argued has not been considered and we start with the assumption that Mr Ellicott's proposition is correct. It was conceded that the power conferred by s.20, to issue warrants, is not a judicial power: see Aston v. Irvine [1955] HCA 53; (1955) 92 CLR 353, at p 363; Baker v. Campbell [1983] HCA 39; (1983) 57 ALJR 749, at p 765; [1983] HCA 39; 49 ALR 385, at p 414; Brewer v. Castles (No. 1) (1984) 52 ALR 571 and cases there cited. The power conferred by s.20 is not ancillary or incidental to any judicial function. If s.20 confers power on the courts of which the judges to which it refers are members, it will therefore be invalid in so far as the court on which it confers the power is the Federal Court of Australia. It will be equally invalid in so far as it invests the Supreme Courts of the States with non-judicial power since s.77(iii) of the Constitution, which enables the Parliament to make laws investing any court of a State with federal jurisdiction, does not enable the Parliament to require the State courts to exercise non-judicial power: Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144, at pp 151-152. The courts of the Territories stand in a different position since those courts are established under s.122 of the Constitution: see Capital T.V. and Appliances Pty. Ltd. v. Falconer [1971] HCA 10; (1971) 125 CLR 591. It is not necessary to decide whether judges who are members of the Supreme Court of the Australian Capital Territory may authorize interceptions in New South Wales: cf. s.20(2).

6. Although the Parliament cannot confer non-judicial powers on a federal court, or invest a State court with a non-judicial power, there is no necessary constitutional impediment which prevents it from conferring non-judicial power on a particular individual who happens to be a member of a court. That was recognized in Queen Victoria Memorial Hospital v. Thornton where, in the judgment of the Court consisting of seven Justices, it was stated, at p 152:

"It is to be noticed that s. 28 (1) of the

Re-establishment and Employment Act does not take

any magistrate as a designate person or as a person

who with his own consent and that of the State, may

be detached from the court to which he belongs and

used for particular purposes. It is addressed to

the court of summary jurisdiction as such. ... All

that matters here is that s. 28 attempts to invest

the State court of summary jurisdiction, and not an

individual, with a non-judicial power."

The section there in question enabled an application to be made "to a court of summary jurisdiction constituted by a Police, Stipendiary or Special Magistrate". The decision may be compared with Aston v. Irvine where sub-ss.(3) and (6) of s.18 of the Service and Execution of Process Act 1901 (Cth), as amended, conferred powers on a "Magistrate or Justice of the Peace". The Court, again constituted by all seven members, said, at p.365:

"If these sub-sections do confer any part of the

judicial power of the Commonwealth a difficulty

might arise, because they confer power not on a

State court but upon the magistrate and the justice

of the peace. Section 77 (iii.) of the

Constitution empowers the Parliament to invest any

court of a State with federal jurisdiction. A

justice of the peace is not a court and in at least

one State he has no strictly judicial functions.

And although a magistrate may constitute a court of

petty sessions sub-ss. (3), (5) and (6) do not

invest him with authority in that capacity."

7. The difficulty mentioned did not in the event arise, because the power conferred was held to be not necessarily judicial. The decision of the Federal Court in Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 provides an illustration of the valid selection of a judge, as a designated person, to perform a non-judicial function. Davies J., a judge of the Federal Court, was appointed as a Deputy President of the Administrative Appeals Tribunal. Under the Administrative Appeals Tribunal Act 1975 (Cth), as amended, a person cannot be appointed to be a Deputy President unless he is or has been a judge of a court created by the Parliament or has certain other specified qualifications (s.7(1) and the definition of "judge" contained in s.3). In rejecting the argument that it was not competent for Davies J. to constitute the Tribunal, Bowen C.J. and Deane J., with whom Smithers J. agreed on this point, said, at pp.583-584:

"The general argument that it was

constitutionally impermissible for Mr Justice

Davies to be appointed a Deputy President of the

Tribunal confuses the appointment of a person, who

has the qualification of being a judge of a court

created by the Parliament, to perform an

administrative function with the purported

investing of a court created under Ch III of the

Constitution with functions which are properly

administrative in their nature. ...

There is nothing in the Constitution which

precludes a justice of the High Court or a judge of

this or any other court created by the Parliament

under Ch III of the Constitution from, in his

personal capacity, being appointed to an office

involving the performance of administrative or

executive functions including functions which are

quasi judicial in their nature. Such an

appointment does not involve any impermissible

attempt to confer upon a Ch III court functions

which are antithetical to the exercise of judicial

power. Indeed, it does not involve the conferring

of any functions at all on such a court."

8. The question for decision in the present case then is whether s.20 confers powers on (inter alia) the Federal Court, or on the judges individually as designated persons. It is a question which involves fine distinctions, which some may regard as unsatisfactory. Most of the authorities in which the question is discussed, apart from those already cited, concern the question whether the decision of a judge who was a member of the Supreme Court of a State but who was exercising particular statutory functions was the decision of the Supreme Court within s.73 of the Constitution, so that an appeal lay to this Court. In the first case in which the question arose, Holmes v. Angwin [1906] HCA 64; (1906) 4 CLR 297, a statute of Western Australia provided that disputed elections were to be heard and determined by the "Supreme Court" to be constituted by a single judge. It was held that no appeal lay to the High Court from the decision of this tribunal, because it was not a decision of the Supreme Court within s.73 of the Constitution. Griffith C.J. said, at pp.306-307, that "the real tribunal is a new tribunal consisting of a Judge of the Supreme Court as a persona designata ...". The judgments of all the members of the Court reveal that in reaching this conclusion they were influenced by the nature of the power conferred, which was regarded as "different from the kind of matters which the Supreme Courts of this and the other States were primarily constituted to deal with" (see at p.305; see also pp.309, 310), and by the provisions of the statute which indicated that the applicable procedure, and the manner of enforcement of the decision, differed from those ordinarily applicable to the Supreme Court and which precluded an appeal to the Full Court of the Supreme Court. A similar conclusion was reached in C.A. MacDonald Ltd. v. South Australian Railways Commissioner [1911] HCA 14; (1911) 12 CLR 221. In that case a South Australian Act of 1847 provided that compensation for land compulsorily acquired was to be assessed by a jury presided over by a judge, commissioner or sheriff, but a later statute, of 1881, provided that either party might apply for an order for a trial of the question "in the Supreme Court", and that when a judge ordered a question of compensation to be tried "before the Court", the question should be stated in the form of an issue, that the verdict and judgment should be "under and subject to the control and jurisdiction of the Supreme Court as in ordinary actions therein" and that the rights of the parties should be the same as in the case of an ordinary action tried under the Supreme Court Act 1878 (S.A.). However, a judgment was not enforceable as a judgment of the Supreme Court and this circumstance was relied on by the members of this Court in reaching the conclusion that the jurisdiction was conferred upon the judge of the Supreme Court as a persona designata, and that his judgment was not a judgment of the Supreme Court. These two decisions are long-established authority against the applicant's argument in the present case.

9. Mr Ellicott placed particular reliance on Medical Board of Victoria v. Meyer [1937] HCA 47; (1937) 58 CLR 62, where it was held that this Court had jurisdiction to entertain an appeal from an order of a judge of the Supreme Court of Victoria made on an appeal from the Medical Board which had refused the applicant's registration as a legally qualified medical practitioner. Latham C.J. (with whom Starke J. concurred) stated the principle as follows, at pp.71-72:

"If a person who happens to be a judge of a

court is selected to perform a particular function

but that function is not judicial in character, as,

for example, presiding over a board of inquiry, it

is clear that a decision made by him would not be

an order of that court. Again, if a judge of a

court is selected to perform a function because he

is a judge of that court, but it appears from the

statutory provisions which provide for the

appointment that it was not intended by virtue of

his appointment for a particular purpose to give

jurisdiction to the court as such over the matters

with which he is authorized to deal, then any order

made by him would not be an order of the Supreme

Court."

10. After referring to Holmes v. Angwin (apparently without disapproval) he went on to say, at p 72:

"Where, however, a matter is referred by

statute to a judge of a court described as a judge

of that court 'the prima facie and natural meaning

of the language' used is that it is referred to

that judge as such. There is a strong prima facie

presumption that the court 'will determine the

matter as a court.' This is almost 'a necessary

implication.' These phrases are taken from the

judgment in National Telephone Co. Ltd. v. His

Majesty's Postmaster-General ((1913) AC, at

pp 560, 562; (1913) 2 KB 614)."

The reference to National Telephone Co. Ltd. v. His Majesty's Postmaster-General suggests that the remarks in that case went a little further than in fact they did; the statute there in question referred the matters not to a judge but to a court, and the words of their Lordships were directed to that situation. Both Rich and Dixon JJ. relied on the fact that the jurisdiction which they were considering was conferred on a "judge of the Supreme Court in chambers" (see at pp.80-81, 93-96). However, Dixon J. said, at p.97, that the argument that the power was given to the judge in chambers, not in his character as a judge of the Supreme Court, but as a person filling that description, was one which relied "upon distinctions without differences". He added, "without casting any doubt on the conclusion reached in (Holmes v. Angwin) ... the more metaphysical parts of the judgments are difficult to follow and import unreal distinctions". Evatt J., who dissented, said, at p.105:

"Further, the nature of the functions

committed to a body is of very great significance

in determining whether 'judicial power,' properly

so called, has been exercised by it. This

principle is well illustrated by Holmes v. Angwin,

a case dealing with the determination of disputed

returns by the Supreme Court of a State. I have

heard nothing to convince me that this case was

wrongly decided. Indeed it finds support in the

Privy Council decision of Strickland v. Grima

((1930) AC 285)."

11. Notwithstanding the criticism voiced by Dixon J. in Medical Board of Victoria v. Meyer, the authority of Holmes v. Angwin was reaffirmed in Webb v. Hanlon [1939] HCA 8; (1939) 61 CLR 313, by six members of the Court, including Dixon J. (see at pp 319, 322, 323-325, 327-328, 330, 335). In that case the Court held that the Elections Tribunal of Queensland, which was constituted by a judge of the Supreme Court, was not the Supreme Court within s.77(iii) of the Constitution. It is unnecessary to consider in detail later cases in which the question has been discussed: Kahn v. Board of Examiners (Vict.) (1939) [1939] HCA 26; 62 CLR 422 and The Adelaide Fruit and Produce Exchange Co. Ltd. v. Adelaide Corporation [1960] HCA 61; (1960) 105 CLR 428, where a conferral of jurisdiction on "judges of the Supreme Court" and "the Court" respectively was held to be a conferral of jurisdiction on the Supreme Court, and Re an Application for Consent to Marry (1974) 22 FLR 153, a decision of the Supreme Court of the Australian Capital Territory, where the power given by s.20 of the Matrimonial Causes Act 1959 (Cth) to a "judge" was held to be conferred on the judge personally and not on the court. Each case depends on the provisions of the legislation in question. Finally, mention may be made of a decision of the Supreme Court of the United States, to which we were referred - United States v. Ferreira (1851) 13 How. 40 (14 Law Ed 42) where it was held that the judgment of a judge of the District Court, exercising a statutory power to adjudicate claims for losses during a war between Spain and the United States and to report his decision to the Secretary of the Treasury, was not a judgment of a court, so that no appeal lay to the Supreme Court. Taney C.J. said at p.47 (p.45 of Law. Ed.) that "the office of judges, and their respective jurisdictions, are referred to in the law, merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends".

12. It clearly appears from these authorities that where a power, judicial or non-judicial, is conferred by statute upon a court or a judge, it is not necessarily conferred on the court or the judge as such - the question is one of construction. Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it. Even if it were to be assumed that the fact that the power conferred by s.20 is conferred on "a Judge" gives rise to a prima facie presumption that it is conferred on the judge as such, and that he will determine it as a member of the court to which he belongs, we consider that there are sufficient indications in the statute to rebut that presumption. In the first place it is clear that if the judge is a member of the Supreme Court of a State, or of the Supreme Court of the Northern Territory, the power is not conferred on the Supreme Court of the State or Teritory, but upon the judge as a designated person. Unless the Governor-General has made arrangements with the Governor of the State or the Administrator of the Northern Territory, no judge of the Supreme Court of the State or Territory will be invested with power by s.20, and if those arrangements are made they will not necessarily be applicable to all of the judges of the Supreme Court of the State, and cannot be applicable to all the judges of the Supreme Court of the Northern Territory. Since when s.20 refers to "a Judge" it in some cases refers to a judge as a designated person, it is unlikely that the Parliament intended in other cases to refer to the judge as such and to confer power on the court. Secondly, the nature of the power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in his capacity as a judge or as a designated person. If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person. Thirdly, none of the provisions of the Federal Court of Australia Act 1976 (Cth), as amended, or of the rules thereunder is rendered applicable to the exercise of power under s.20. By s.19(1) of that Act the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament and s.20 of the Telecommunications (Interception) Act does not express an intention to invest the court with jurisdiction. Under s.20 the judge makes no order and nothing that he does is enforced under the Federal Court of Australia Act. He grants a warrant, the effect of which depends entirely upon the Telecommunications (Interception) Act.

13. For these reasons we conclude that s.20 confers no power on the Federal Court and does not infringe the rule laid down in the Boilermakers' Case. It was submitted by Mr Ellicott that the separation of judicial and administrative power is not merely a matter of verbal formulae and that is of course correct. If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers' Case would doubtless render the legislation invalid. But the exercise of the functions conferred by s.20 would not have that result. The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers.

14. For these reasons we hold that s.20 of the Telecommunications (Interception) Act is a valid enactment of the Commonwealth Parliament.

15. We turn now to the second question, which is whether s.7 of the Act prohibits the admission into evidence, in proceedings for an offence of the description in par.7(6)(c) of the Act, of information obtained by an illegal interception of a communication passing over a telecommunications system. Since we hold s.20 to be valid, this question can arise in the present case only if it is held that the warrants were wrongly issued, and that in consequence the interceptions were illegal. Those matters have not been resolved, but since the present question has been fully argued we express our views on it. A number of conflicting constructions of the section were advanced by counsel in the course of the hearing but the Court may find it unnecessary in reaching its conclusion to resolve all the issues that have been canvassed.

16. Mr Ellicott argues for an affirmative answer to the question which has been propounded. In brief, his submission is that s.7 is a code for determining whether intercepted telecommunications and telegrams can be admitted into evidence. The effect of the section is to permit their admission only in the circumstances set out in s.7(6). Since that permission is extended only to information which has been lawfully obtained in accordance with the Act there is a clear implication arising from s.7 that information obtained by an illegal interception is not admissible.

17. It is essential to Mr Ellicott's argument that sub-ss.(4) and (6) on their proper construction refer only to information lawfully obtained. If those provisions, and in particular sub-s.(6), apply to intercepted information notwithstanding that it had been obtained illegally, then a person may give that information in evidence in a proceeding of the kind referred to in par.(c) and a negative answer to the question would follow. This is the construction for which Mr Robberds, counsel for the third respondent, contends. On the other hand, the learned Solicitor-General for the Commonwealth, intervening, supports Mr Ellicott on the argument that sub-ss.(4) and (6) deal only with information lawfully obtained but disputes the implication of inadmissibility of information unlawfully obtained upon which Mr Ellicott relies.

18. It seems to us that the submissions of Mr Ellicott and the Solicitor-General should so far be accepted. The scheme of the section appears to be plain. Having prohibited under a substantial penalty the interception of a communication passing over a telecommunications system, the remainder of the section constitutes a code designed to deal with authorized and therefore lawful interceptions, identifying the circumstances in which an interception may take place and regulating the use which may be made of any information obtained thereby. The legislature does not assume that its command in sub-s.(1) will be disobeyed. Indeed, it would be surprising to find the legislature proceeding to regulate the uses to which information obtained in a manner which has been so clearly outlawed may lawfully be put. On the other hand, it is said that it would be surprising if the prohibition contained in sub-s.(4) did not apply to information obtained unlawfully. But there are several answers to that submission. First, the broad description of the subject matter of sub-s.(4) is necessary to cover the exceptions contained in pars.(a) and (b) of sub-s.(2); merely to refer to information obtained by virtue of a warrant would fail to deal with information obtained pursuant to par.(a). Secondly, the exceptions to the prohibitions imposed by sub-s.(4) give an authority to communicate. Thirdly, there is no necessity to provide for an offence of divulging, contrary to sub-s.(4), information obtained in contravention of sub-s.(1) because evidence to that effect would demonstrate the commission of an offence carrying a similar penalty under that last-mentioned section.

19. However, this conclusion will not assist Mr Ellicott if the proper construction of s.7 is that it is not dealing with the admissibility of evidence in court proceedings. It is that question which must now be addressed. Leaving aside the provisions in ss.11 and 21 relating to the issue of warrants authorizing the inspection of telegrams (which are not material for present purposes), s.7 is concerned in essence with two prohibitions. The first is the prohibition of the interception of a communication passing over a telecommunications system, subject to prescribed exceptions. The second is the prohibition of the communication by one person to another person of any information obtained by intercepting a communication passing over a telecommunications system with a prescription of the circumstances under which such information may be divulged without committing an offence. Hence sub-s.(1) creates the offence of unlawful interception. Subsection (2) outlines the circumstances in which an interception will not be affected by the prohibition in sub-s.(1). Subsection (4) moves on to the consequences of permissible interception. It prohibits the divulging or communicating by one person to another of any information obtained by an interception except in the circumstances described therein. Subsection (5) introduces further exceptions to the ban on the communication of any information, related in this case to officers of the Australian Security Intelligence Organization and to police officers. It is introduced by the words "Notwithstanding sub-section (4)", indicating thereby that the effect of the subsection is to make further inroads on the ban imposed by the former subsection. Subsection (6) opens with the words "Without limiting the application of sub-section (4)". These words place the subsection in a different light to that cast on sub-s.(5) by the opening words of that subsection. They suggest that the subsection is entering a field which differs from that which is the subject of sub-s.(4). They are confirmatory of a construction of sub-s.(4) which would exclude from its prohibition the communication of intercepted information by a person to a Court. In Miller v. Miller [1978] HCA 44; (1978) 141 CLR 269 it was said, at p 277, of similar words in s.5(3) of the Telephonic Communications (Interception) Act 1960 (Cth):

"... I doubt whether a court is 'another person'

within the meaning of the words, 'A person shall

not divulge or communicate to another person ...'

in that sub-section."

This view was adopted and applied by Crawford J. in Reg. v. Padman (1979) 25 ALR 36. Subsection (6) is then moving into a field which has not been touched by sub-s.(4). It indicates, in addition to those circumstances in which by virtue of sub-s.(4) intercepted information may be communicated, the circumstances in which such information may be given in evidence in a court proceeding. Without it, the only circumstances in which the Act would seem to contemplate intercepted information being divulged are those set out in sub-ss.(4) and (5). Nevertheless, it is odd that the section does not contain any prohibition on divulging intercepted information to a court otherwise than in the circumstances prescribed in sub-s.(6). We incline to the view that this omission is merely a legislative oversight the result of which however is that relevant evidence obtained from an intercepted communication may be given in a proceeding other than those mentioned in sub-s.(6) without the person giving it committing an offence under the Act.

20. But all of this is merely to show that in s.7 the Act is dealing with the subject of the interception of telecommunications in the following respects:

(a) prohibiting under penalty the interception of

a communication passing over a telecommunication

system save in the circumstances described;

(b) prohibiting, subject to exceptions, the

communication by one person to another person

of any information obtained in those

circumstances;

(c) declaring that a person may give lawfully

intercepted information in evidence in certain

proceedings.

It will be observed that the admissibility of evidence in legal proceedings is not a subject which is dealt with by the section. It is unnecessary to recall the many and detailed rules that govern that subject. Suffice it to say that questions of relevance, of the capacity of witnesses and of the discretion of the judge to reject relevant and admissible evidence which has been obtained unlawfully or in circumstances where it would be unfair to admit it remain to be considered by the trial judge.

21. The question asks whether s.7 prohibits the admission into evidence, in proceedings for an offence of the description in par.(c) of s.7(6) of evidence obtained by an illegal interception. In our opinion, the answer must be in the negative. Neither sub-s.(6) nor for that matter sub-s.(4) has anything to say either directly or by implication to the question. They are not concerned with information obtained in contravention of the Act. To find an implication such as that contended for by Mr Ellicott would be to read too much into the Act. The discretion of a court when confronted with evidence which has been unlawfully obtained has been clearly explained in recent decisions of this Court: The Queen v. Ireland [1970] HCA 21; (1970) 126 CLR 321, at p 334; Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54, at pp 72-77; Cleland v. The Queen [1982] HCA 67; (1982) 57 ALJR 15; 43 ALR 619. No doubt it is true, as Barwick C.J. recognized in Ireland, at p 334, that acts in breach of a statute may more readily warrant the rejection of the evidence as a matter of discretion. But this is to do no more than confirm the existence of the discretion, a discretion which is to be exercised in the light of the competing public interests to which the Chief Justice referred. As we have said, this is not a case such as his Honour contemplated in the same passage at p.334, namely, a case where the statute may on its proper construction itself impliedly forbid the tender in evidence of information obtained in breach of its terms. The question should be answered No.

22. We would therefore answer both questions in the negative and would remit the matter to the Federal Court.

MASON and DEANE JJ. For a variety of purposes it is necessary from time to time to consider whether a function given to a person who is a judge is a function to be exercised by him personally or in his capacity as a judge of the court of which he is a member. A judge is said to be appointed as a designated person when he is appointed otherwise than in his capacity as a judge with the consequence that he exercises the function entrusted to him in his personal capacity. In this case the need to consider the question arises because the applicant submits that s.20 of the Telecommunications (Interception) Act 1979 (Cth), as amended ("the Act"), is invalid on the ground that, in requiring judges of the Federal Court of Australia to entertain and determine applications for the issue of warrants authorizing persons to intercept communications made to or from a telecommunications service, it confers on the Federal Court the exercise of non-judicial power, contrary to the doctrine in the Boilermakers' Case [1956] HCA 10; (1956) 94 C.L.R. 254; (1957) 95 C.L.R. 529; (1957) A.C. 288. It is common ground that the function of issuing warrants, conferred by s.20, is not a judicial power, and it is not suggested that it is ancillary or incidental to any judicial function.

2. The question which we have to determine as a matter of statutory construction is whether the functions entrusted to a Federal Court judge by s.20 are entrusted to him personally as someone who is detached from the court or in his capacity as a judge of the court of which he is a member in which event they become functions of the court. The approach which is to be adopted in resolving this question was authoritatively decided by this Court in Medical Board of Victoria v. Meyer [1937] HCA 47; (1937) 58 CLR 62. Section 9 of the Medical Act 1933 (Vict.) provided for an appeal to a judge of the Supreme Court of Victoria in chambers from a decision of the Medical Board refusing an applicant registration as a legally qualified medical practitioner or erasing or removing the name of a person already registered or refusing to restore a name which was erased or removed. The Court (Latham C.J., Rich, Starke, Dixon and McTiernan JJ., Evatt J. dissenting) decided that the function conferred on a judge by s.9 was exercisable by him in his character as a judge of the Supreme Court and that an order made by him under the section was an order of the court from which an appeal lay by special leave to the High Court. The problem which arose was examined at length by Dixon J. at pp.93-97. It is sufficient here to set down the concluding part of his discussion of the problem (at p.97):

"When sec.9 of the Medical Act 1933 speaks of a

judge in chambers, it refers to a well-understood

mode of exercising the judicial authority belonging

to a judge in virtue of his office as a judge of

the Supreme Court. The argument to the contrary

was, in effect, that sec.9 gave the power to the

judge in chambers, not in his character of judge of

the Supreme Court, but as a person filling that

description. The argument appeared to me to rely

upon distinctions without differences. In many

branches of the law instances occur where written

instruments refer to persons answering a given

legal description in order to identify them and

then proceed to confer rights or powers upon them

which do not arise out of the description or

character by which they are identified. ... But, in

my opinion, this distinction cannot be maintained

where a statutory power or jurisdiction is added to

the powers and jurisdiction belonging to a court or

judge and is made exercisable in virtue of that

very character. It is true that there are many

observations to be found in Holmes v. Angwin

[1906] HCA 64; ((1906) 4 CLR 297) which give support to

similar reasoning. But, without casting any doubt

on the conclusion reached in that case, I venture

to suggest that the more metaphysical parts of the

judgments are difficult to follow and import unreal

distinctions."

Latham C.J., with whom Starke J. agreed, expressed a similar view (at p.72):

"Where, however, a matter is referred by statute

to a judge of a court described as a judge of that

court 'the prima facie and natural meaning of the

language' used is that it is referred to that judge

as such. There is a strong prima facie presumption

that the court 'will determine the matter as a

court.' This is almost 'a necessary implication.'

These phrases are taken from the judgment in

National Telephone Co. Ltd. v. His Majesty's

Postmaster-General ((1913) AC, at pp 560, 562;

(1913) 2 KB 614)."

See also Rich J., at pp.80-81.

3. The effect of the decision in Meyer was considered in Kahn v. Board of Examiners (Vict.) [1939] HCA 26; (1939) 62 CLR 422, by Evatt J. who had dissented in Meyer. In Kahn, Evatt J. said of Meyer (at p.445):

"It entirely deserts the theory that where

jurisdiction is conferred upon 'a judge of the

Supreme Court' such jurisdiction is distinguishable

from that of the Supreme Court. The same general

reasoning as prevailed in that case indicates that,

where jurisdiction is conferred upon 'the judges of

the Supreme Court,' it is the 'Supreme Court' which

is acting."

His Honour went on to say that he still thought that on this point Meyer was wrongly decided but that so long as it stood "the decision should not be whittled down".

4. Subsequently in Aston v. Irvine [1955] HCA 53; (1955) 92 CLR 353, in a judgment of the entire Court Meyer was followed, with a reference to the exposition of Dixon J. in that case. In holding s.19 of the Service and Execution of Process Act 1901-1953 (Cth), which conferred on a judge of the Supreme Court of a State the power to review certain orders of a magistrate or justice of the peace in relation to extradition proceedings, to be a valid exercise of legislative power under s.77(iii) of the Constitution, the Court said (at p.366):

"Notwithstanding the fact that the jurisdiction is

in terms conferred on a judge of the Supreme Court

of a State and not upon the court eo nomine, it is

a valid exercise of the power. For the

jurisdiction is conferred on every judge as a

member of the court. In other words, it is in his

capacity to constitute the court that he is named:

see Parkin and Cowper v. James ((1905) 2 CLR

315, at pp 343, 344) and Medical Board of Victoria

v. Meyer (at pp 93-97). It means no more than that

the court shall be constituted by one judge."

And in The Adelaide Fruit and Produce Exchange Co. Ltd. v. Adelaide Corporation [1960] HCA 61; (1960) 105 CLR 428, at pp 434-435, Menzies J. regarded Meyer as a landmark decision on the topic, pointing out that Holmes v. Angwin [1906] HCA 64; (1906) 4 CLR 297 and Webb v. Hanlon [1939] HCA 8; (1939) 61 CLR 313 stood in a special position in virtue of their character as cases concerning the election of members of a legislature.

5. The foregoing reference to authority in this Court, though by no means comprehensive, is adequate to make the point that the approach to be applied in resolving the question at issue is now a matter of settled principle. It is that which was so clearly expressed by Dixon J. in Meyer and which was authoritatively adopted in Aston. That approach accords with both logic and common sense. With respect to those who may think otherwise, if there is thought to be some element of vagueness or uncertainty as to the resolution of questions of this kind, it stems not from any doubt as to what is the relevant principle to be applied, but from the application which it has been given in some of the cases, notably Holmes v. Angwin and Webb v. Hanlon which, as we have seen, must be treated as standing in a special, and we would add, anomalous, position.

6. We do not regard settled principle as excluding the possibility contemplated by Latham C.J. in Meyer that a function entrusted to a judge by reference to his judicial office is exercisable by him personally and otherwise than in his capacity as a judge. But to enable such a conclusion to be reached it must appear that in the performance of the function entrusted to him the judge is intended to act personally, detached from the court of which he is a member (cf. Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144, at p 152), so that the reference to the judge's judicial office is then seen not as a statement of the character in which the function is to be exercised, but as a qualification of his becoming a repository of the function, a matter which was made express in the case of the appointment of Davies J. as a Deputy President of the Administrative Appeals Tribunal which was considered in Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. That was an instance of the appointment of a particular person who was a judge to a separately constituted tribunal which necessarily entailed his detachment from the Federal Court so that he could participate in the exercise of the powers of that tribunal. It was not so much an instance of the exercise of powers by a judge personally as an instance of the exercise of powers by a judge as a member of a separately constituted tribunal (cf. The Adelaide Fruit and Produce Exchange Co. Ltd., at p.436).

7. In the present case, the function of issuing warrants is conferred upon all the judges of the Federal Court indiscriminately. It is exercisable by a judge of that Court in circumstances in which he is not appointed to a separately constituted tribunal. If the function is exercisable by him otherwise than in his character as a judge it must be because he is intended to discharge the function personally, detached from his judicial office as a member of the Federal Court. In saying this we reject the notion that functions may be entrusted to a person as a judge, but not as a member of the court to which he belongs. The metaphysical notion of a judge acting in his character or capacity as a judge, at large, so to speak, detached from the court of which he is a member, cannot be supported as a matter of legal theory.

8. There are compelling reasons why the Court should strictly maintain and apply established principle by insisting upon a clear expression of legislative intention before holding that functions entrusted to a judge of a federal court are exercisable by him personally. The ability of Parliament to confer non-judicial power on a judge of a Ch.III court, as distinct from the court to which he belongs, has the potential, if it is not kept within precise limits, to undermine the doctrine in the Boilermakers' Case. One may ask: what is the point of our insisting, in conformity with the dictates of the Boilermakers' Case, that non-judicial functions shall not be given to a Ch.III court, if it is legitimate for Parliament to adopt the expedient of entrusting these functions to judges personally in lieu of pursuing the proscribed alternative of giving the functions to the court to which the judges belong? The answer is that the independence of the federal judiciary which is protected by the Boilermakers' Case will be preserved in a substantial way if, in accordance with the principle expressed by Dixon J. in Meyer, we continue to acknowledge that Parliament may confer non-judicial functions on a federal judge only where there is a clear expression of legislative intention that the functions are to be exercised by him in his personal capacity, detached from the court of which he is a member.

9. Nor is the point which we have just made necessarily dependent on the authority of the Boilermakers' Case. Even without that decision, there is much to be said for the view that the underlying concept of the separation of powers which the Constitution prescribes as "a safeguard of individual liberty" (see Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353, at pp 380-382) would itself support adherence to the principle which we have discussed. Cardozo C.J., speaking of the separation of powers under the Constitution of the State of New York in In re Richardson (1928) 160 NE 655, observed (at p 657):

"From the beginnings of our history, the principle

has been enforced that there is no inherent power

in Executive or Legislature to charge the judiciary

with administrative functions except when

reasonably incidental to the fulfilment of judicial

duties. ... The exigencies of government have made

it necessary to relax a merely doctrinaire

adherence to a principle so flexible and practical,

so largely a matter of sensible approximation, as

that of the separation of powers. Elasticity has

not meant that what is of the essence of the

judicial function may be destroyed ...".

And see, generally, Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, at p 389 ff. and the discussion by Hamilton in The Federalist (No. 78, 1788). Indeed, it may be arguable that, conformably with the underlying concept of the separation of powers, it is beyond the power of the Parliament to attach to the holding of judicial office as a member of a Ch.III court an unavoidable obligation to perform as a designated person, detached from the relevant court, administrative functions which are unrelated to the exercise of the jurisdiction of that court. However, these are questions which have not been argued in the present case and it is unnecessary for us to deal with them.

10. In the United States, as in Australia, it has been recognized that non-judicial functions may be entrusted to judges personally and not in their capacity as judicial officers, but, it seems, on the footing that a duty of acceptance cannot be imposed (In re Richardson, at p 659). This recognition is no doubt subject to the general qualification that what is entrusted to a judge in his individual capacity is not inconsistent with the essence of the judicial function and the proper performance by the judiciary of its responsibilities for the exercise of judicial power. In United States v. Ferreira (1851) 13 How. 40 (14 Law Ed 42), the Supreme Court considered that certain statutes of Congress could not validly confer on the judges of the Territorial Court of Florida and later a District Judge of the United States in their judicial capacity the duty of adjudging claims for loss by Spanish officers and inhabitants arising out of the operations of the American army in Florida and reporting to the Secretary of the Treasury who, on being satisfied that the decisions were just and equitable, was bound to pay. The Supreme Court went on to decide, in the words of Taney C.J. (at p.47 (14 Law Ed., at p.45)):

"The authority conferred on the respective judges

was nothing more than that of a commissioner to

adjust certain claims against the United States;

and the office of judges, and their respective

jurisdictions, are referred to in the law, merely

as a designation of the persons to whom the

authority is confided, and the territorial limits

to which it extends."

In concluding that the judges were appointed as commissioners, the court was influenced by the circumstance that the statutes were designed to give effect to the United States' obligations under a treaty with Spain by which the United States bound itself to establish a tribunal to adjust the claims. Upon analysis, the case is analogous to Drake's Case in that the effect of the decision was that the tribunal established for the purposes of the treaty was a special tribunal consisting of the judges as commissioners rather than as members of a court, a result which accorded with the object of Congress in carrying out the treaty obligations. Accordingly, the decision cannot be regarded as authority for the proposition that the courts will generally lean in favour of preserving the validity of legislation entrusting non-judicial functions to judges by concluding that they are to be exercised personally.

11. Another reason for adhering to a strict application of settled principle is that when a function is entrusted to a judge by reference to his judicial office the legislators and the community are entitled to expect that he will perform the function in that capacity. To the intelligent observer, unversed in what Dixon J. accurately described - and emphatically rejected - as "distinctions without differences" (Meyer, at p.97), it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual. Such an observer might well think, with some degree of justification, that it is all an elaborate charade.

12. We turn then to the question whether s.20, read in conjunction with s.18, entrusts the function which it prescribes to a judge of the Federal Court in his character as a judge of the Court to which he belongs. The first point to be made about s.20 - and it is almost a decisive consideration - is that it reposes the function which it prescribes in "a Judge", a description which invokes the judicial office which is held, without any indication that this reference is intended only to state a qualification of the persons who may become repositories of the function. It will be noted that the term "Judge" is defined in s.18 as meaning a judge of a designated court. We defer for later consideration the provisions of s.19 which, in their application to judges of the Supreme Courts of the States and the Northern Territory, are possibly expressed in terms of such a qualification. The second point to be made is that the provisions of Pt IV of the Act contain no suggestion that the function of issuing warrants is to be undertaken by a judge personally, detached from the court to which he belongs. Indeed, the Act appears to contemplate that the function will be undertaken by a judge as the holder of judicial office. Both sub-ss.(1) and (2) of s.19 speak of the functions prescribed as "the functions of a Judge under this Part" and it is of some significance that Pt IV confers no privilege or protection on a judge. It assumes, evidently, that privilege or protection attaches to a judge in his character as a judge of his court in the discharge of his functions under the Part.

13. Moreover, there is the consideration that the functions prescribed, though ordinarily of a kind performed by a magistrate and not by judges, are functions of a quasi-judicial nature, calling for an evaluation of material and the formation of an opinion on matters which fall within the skill and experience of judicial officers. The functions are such that they may be thought to be exercised appropriately by a judge in his judicial character, in contradistinction to purely executive functions which of their very nature are inappropriate to be undertaken by judicial officers. Section 20 is not so expressed as to permit a judge to decline to deal with an application made to him. The section is expressed in the manner appropriate to the exercise of jurisdiction or power by a judge as such. It proceeds on the basis that if an application is made to a judge he will deal with it and, subject to any general discretion which may be thought to inhere in the word "may", if satisfied of the requisite matters, proceed to exercise the power which he is given.

14. There are other considerations which support the conclusion that the functions imposed by Pt IV upon judges of the Federal Court are imposed upon them as the persons who from time to time constitute that court as distinct from being imposed upon them as designated individuals detached from their court. We shall briefly identify them.

15. There is nothing at all in Pt IV which requires the prior consent of a judge of the Federal Court to the imposition upon him of the administrative function of issuing warrants authorizing either access to telegrams or the interception of communications passing over a telecommunications system or which enables the particular judge to decline to be entrusted with or to disavow that function. The function is imposed upon a judge of the Federal Court as an unavoidable concomitant of his judicial office. In the case of a new appointment to office, it is a responsibility which he assumes with his office. Once assumed, it can be laid down only with his office. No special provision at all is made in respect of facilities for its discharge. In these circumstances it would be quite extraordinary if it was the legislative intent that the function should be conferred upon the judges of the Federal Court otherwise than as part of the duties to be performed by them in the course of their discharge of the functions of that court.

16. Subsections (1) and (2) of s.19, which we mentioned earlier, refer to the making of arrangements for the "performance (of the functions of 'a Judge' under Pt IV) by all or any of the persons who from time to time hold office as" judges of the Supreme Court of each of the States and judges of the Supreme Court of the Northern Territory (who are not judges of the Federal Court or of the Supreme Court of the Australian Capital Territory). It is arguable that the existence of those special requirements produces the consequence that, in the case of judges of the State and Northern Territory Supreme Courts who are specifically identified by those arrangements, the holding of judicial office is no more than a qualification for appointment to exercise the function prescribed by s.20. Whether that is so would need to be determined in the light of the other factors which have to be taken into account and to which we have referred. What is important for present purposes, however, is that there is no need for any such arrangements in the case of judges of the Federal Court and no such argument is available in respect of them. Indeed, the contrast between the requirement of such arrangements in the case of a judge of a State or the Northern Territory Supreme Court and the absence of any such requirement in the case of a judge of the Federal Court or the Australian Capital Territory Supreme Court underlines rather than undermines the conclusion that the imposition of the function upon a judge of a court whose jurisdiction is a matter under the direct control of the Parliament was seen and treated as involving no more than an expansion of the duties of the judge as a member of the relevant court in his capacity as such.

17. We therefore conclude that the function of issuing warrants was imposed upon the judges of the Federal Court not as designated individuals but as a function to be performed by them as judges of that Court in their capacity as such. That being so, we are unable to participate in the negative answer which the majority of the Court has given to the first question removed into this Court which is in these terms:

"Is section 20 of the Telecommunications

(Interception) Act 1979 (Cth) beyond the power of

the Parliament of the Commonwealth of Australia?"

For our part we refrain from giving a definite answer to this question in the absence of argument on the Commonwealth Solicitor-General's proposed submission that the Court should reconsider the Boilermakers' Case. In view of the majority's conclusion that s.20 is valid in any event, there is no point in embarking on a consideration of that submission.

18. The second of the two questions which have been argued concerns the admissibility in evidence in legal proceedings of information obtained by an illegal interception of a communication passing over a telecommunications system. The answer to it turns upon the correct construction of s.7 of the Act. The provisions of that section are set out in full in the majority judgment. We turn to consider their effect.

19. Subsection (1) imposes, under sanction of heavy penalties, a general prohibition against interception of a communication passing over a telecommunications system. It also prohibits authorizing, suffering, permitting or assisting any such interception. Subsections (2) and (3) qualify sub-s.(1) by defining particular circumstances in relation to which the general prohibitions do not apply. Those circumstances include acts or things done by an officer of the Telecommunications Commission in the performance of certain duties and interception in pursuance of a warrant. Subsection (4) provides, under similar penalties to those imposed by sub-s.(1), that, subject to certain limited exceptions, a person shall not divulge or communicate to another person or make use of or record any information obtained by intercepting a communication passing over a telecommunications system or by virtue of a warrant authorizing access to telegrams. Subsection (5) qualifies sub-s.(4) by authorizing the communication of such information by certain Commonwealth, State and Territory officers in particular circumstances. Subsection (6) identifies five different classes of "proceeding" in which a person may, "in evidence", give information obtained by intercepting such a communication or by virtue of such a warrant.

20. Much of the difficulty involved in the construction of the provisions of s.7 flows from the obscurity which surrounds the interrelation between its various subsections. At the heart of that difficulty, there lies the question whether the reference in sub-s.(4) or sub-s.(6) of the section to "information obtained by intercepting a communication passing over a telecommunications system" should be read as referring only to information lawfully so obtained. On balance, we conclude that those words should be given that limited meaning in each of those two subsections. Our reason for this conclusion is that the general scheme of s.7 requires both that sub-ss.(4) and (5) be read as being concerned with controlling the use of information obtained by one or other of the acts or things contemplated and permitted by sub-ss.(2) and (3) and that sub-s.(6) be so read that the information of which disclosure is authorized is limited to information which has been lawfully obtained as distinct from information which, under the provisions of sub-ss.(1), (2) and (3), should not have been obtained at all.

21. Another question relevant to the interrelation between the various subsections is whether the prohibition (in sub-s.(4)) against divulging or communicating information to "another person" applies in respect of the disclosure of such information in the course of giving evidence before a court. In our view it does not for the reason that, as a matter of ordinary language, the words "divulge or communicate to another person" are inappropriate to refer to the giving of evidence before a court "which would hardly be called" another person (see per Dixon C.J., Canadian Pacific Tobacco Co. Ltd. v. Stapleton [1952] HCA 32; (1952) 86 CLR 1, at p 6; per Gibbs J., Miller v. Miller [1978] HCA 44; (1978) 141 CLR 269, at p 277).

22. It follows that, apart from the procedural provisions of sub-s.(7) which relate to the prosecution of an offence against the section, s.7 can conveniently be seen as comprising three related groups of provisions. The first group includes the provisions of sub-ss.(1), (2) and (3) which, when read together, impose a qualified prohibition upon the interception of communications passing over a telecommunications system. The second group includes the provisions of sub-ss.(4) and (5) which, when read together, impose a qualified prohibition upon the use of information obtained through lawful interception or pursuant to a warrant authorizing access to telegrams. The third group consists of the provisions of sub-s.(6).

23. The introductory words of sub-s.(6) ("Without limiting the application of sub-section (4)") support our conclusion that the prohibition in sub-s.(4) against divulging or communicating information to "another person" should not be construed as extending to the disclosure of information in the course of giving evidence in legal proceedings in that sub-s.(6) would obviously limit the application of sub-s.(4) if the latter subsection applied, according to its terms, to such disclosure. Subsection (6) does not itself expressly prohibit the disclosure of information in the course of giving such evidence. Its express provisions are permissive. The question which arises is whether, in the context of the overall prohibition against unauthorized interception which is contained in sub-ss.(1), (2) and (3) and of the prohibition against the unauthorized divulging or communication of information obtained by authorized interception which is contained in sub-ss.(4) and (5), the specific identification by sub-s.(6) of five limited classes of proceedings as proceedings in which "a person may give information" obtained by authorized interception impliedly precludes other disclosure in legal proceedings of information obtained as a result of interception.

24. Unless the provisions of sub-s.(6) are construed as impliedly precluding the disclosure of some information obtained as a result of interception, the subsection serves no real purpose. No other provision of the Act imposes a prohibition on the disclosure in evidence in legal proceedings of information obtained as a result of interception. It cannot be suggested that the purpose of the section was to make clear that the prohibition contained in sub-s.(4) did not extend to disclosure in the course of giving evidence in legal proceedings since, if that were the purpose of sub-s.(6), there would be no point at all in the restriction of its provisions to the five specified classes of proceedings. In the overall context of a section which, under criminal sanction, prohibits unauthorized interception and prohibits the unauthorized use of information obtained as a result of authorized interception, the implication is plain that the provisions of sub-s.(6) were intended to provide a comprehensive identification of the circumstances in which information obtained as a result of interception of a telecommunications communication or as a result of access to telegrams could lawfully be given in evidence in legal proceedings. In other words, the effect of sub-s.(6) is that evidence can only be given of information obtained as a result of interception of a communication passing over a telecommunications system or as a result of access to telegrams if the conditions laid down by the subsection are satisfied, that is to say, if the information is of a kind to which the subsection refers (viz. information obtained by authorized interception or access) and if the proceedings are of one or other of the kinds described. So viewed, the provisions of sub-s.(6) neither create an additional offence nor deprive the courts of the power to reject evidence which is otherwise inadmissible or which should be rejected on discretionary grounds. All that the subsection does is to confine within the designated limits the circumstances in which material obtained by interception of communications or access to telegrams may, if otherwise admissible, be given in evidence.

25. We should mention that it was argued that any limiting effect of the provisions of sub-s.(6) should be restricted to disclosure of lawfully obtained information. The basis of this argument was an assertion that the subsection was not concerned at all with information obtained as a result of an unlawful interception. The argument can be shortly answered. Section 7 of the Act is concerned with all interceptions of communications passing over a telecommunications system. Subsection (1), as has been mentioned, imposes a general prohibition against such interceptions which is modified by the two following subsections. That general prohibition provides the context in which the other subsections of s.7, including sub-s.(6), operate and fall to be construed. In this context, it is highly unlikely that it was the legislative intent that the provisions of sub-s.(6) should be construed as impliedly restricting the circumstances in which lawfully obtained information could be given in evidence in legal proceedings while leaving quite unrestricted the giving in evidence in such proceedings of information obtained in breach of the principal prohibition imposed by the section. In particular, it is scarcely plausible that it was the legislative intention that, in proceedings other than those specified in sub-s.(6), it should be a prerequisite of the giving of information obtained by interception or access that it appear that the interception or access was itself illegal.

26. It follows from the foregoing that we do not participate in the answer given by the majority of the Court to Question 1 and that we would answer Question 2 in the affirmative.

ORDER

Answer the questions as follows:

Question: Is section 20 of the Telecommunications

(Interception) Act 1979 (Cth) beyond the

power of the Parliament of the Commonwealth

of Australia?

Answer: No.

Question: Does section 7 of the Telecommunications

(Interception) Act 1979 (Cth) prohibit the

admission into evidence, in proceedings for

an offence of the description in paragraph

7(6)(c) of the said Act, of information

obtained by an illegal interception of a

communication passing over a telecommuni-

cations system?

Answer: No.

Remit the matter to the Federal Court.

No order as to costs.