Gunning, Patrick --- "The Queen v Scouller (QLD)" [1995] PrivLawPRpr 82; (1995) 2(7) Privacy Law & Policy Reporter 132

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The Queen v Scouller (Qld)

Supreme Court of Queensland (Macrossan CJ, McPherson JA and Lee J, 9 February 1995)

Telephone interception -inconsistency between federal and state laws - whether federal police investigating federal customs offence required warrant to intercept telephone conversations under state law - Invasion of Privacy Act 1971 (Qld), s 43

S was convicted of being knowingly concerned in the importation of cannabis. A major part of the evidence against S took the form of transcripts of telephone conversations involving S. The relevant conversations had been intercepted by officers of the Australian Federal Police pursuant to a warrant issued by a judge of the Federal Court under s 219B Customs Act 1901 (Cth). Subsection 9(2) of the Australian Federal Police Act 1979 (Cth) (AFP Act) states that:

Where any provisions of a law of a state apply in relation to offences against the laws of the Commonwealth or a territory, those provisions so apply as if any reference in those provisions to a constable or to an officer of police included a reference to a member [of the Federal Police].

Section 43 of the Invasion of Privacy Act 1971 (Qld) makes it an offence to use a listening device to record or listen to a private conversation. An exception to this prohibition is provided for the case of the use of a listening device by 'a member of the police force' acting on the written approval of a judge of the Supreme Court of Queensland.

S argued that the effect of the AFP Act was to require a member of the Federal Police to comply with the provisions of both the Customs Act and the Invasion of Privacy Act.

Held: the prohibition in s 43 of the Invasion of Privacy Act is general in its effect and is not sufficient to activate s 9(2) of the AFP Act. Accordingly, there was a direct inconsistency between s 219B of the Customs Act and s 43 of the Invasion of Privacy Act, and the provisions of the Customs Act prevailed. (Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; Coco v Shaw [1994] 1 Qd R 469 considered.)

Patrick Gunning