Gunning, Patrick --- "Grollo v Commissioner of Australian Federal Police" [1995] PrivLawPRpr 99; (1995) 2(8) Privacy Law & Policy Reporter 152

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Grollo v Commissioner of Australian Federal Police

High Court of Australia Brennan CJ, Deane, Dawson, Toohey, McHugh, and Gummow JJ, 21 September 1995, (1995) 131 ALR 225

Telecommunications (Interception) Act 1979 (Cth) - constitutional validity - separation of powers - power to issue interception warrant - whether judicial or non-judicial - whether incompatiable with judges performance of judicial functions

Since about June 1992, members of the Australian Federal Police had been investigating Bruno Grollo (G). Various charges were laid against G based, in part, on recordings of telephone conversations involving G made pusuant to a warrant issued under the Telecommunications (Interception) Act 1979 (Cth) (the Act).

The act authorises a law enforcement agency to make an ex parte application to an 'eligible judge' for the issue of an interception warrant and vests a discretion in the eligible judge to issue such a warrant. An 'eligible judge' is a judge of a Federal Court who consents in writing to acting as an eligible judge and is declared as an eligible judge by the Attorney-General. As at May 1994, 30 of the 35 Federal Court judges were eligible judges.

The system of obtaining the consent of judges to become eligible judges differs from that considered in Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57. In Hilton, the Act conferred the power to issue interception warrants on 'a judge ... ini respect o fwhom an appropriate arrangement was in place.' By a 3-2 majority the High Court held in Hilton that the power to issue interception warrants was conferred on each judge as a designated person, and not the Federal Court. Accordingly, the Act did not invalidly confer non-judicial power on a Federal Court. Amendments to the Act in 1987 introduced the system under consideration here.

By their nature, applications under the Act to an eligible judge are heard in secret and minimal records are kept of the reasons for which decisions are made. G argued that eligible judges may be under a duty of confidence imposed by secrecy provisions of the Crimes Act 1914 (Cth), statutory obligations arising by implication from the Act, or under equity. As a result, he argued, an eligible judge may be prevented from disclosing to a party in proceedings before the court that he or she is in possession of highly prejudicial information relating to that party. In this case, the judge responsible for issuing the interception warrant has subsequently determined related proceedings involving G.

Per Curiam

1. The power to issue a warrant under the Act must be exercised judicially, in the sense that it must be exercised without bias and fairly weighing the competing considerations of privacy and private property on the one hand and law enforcement on the other. However, this does not mean that the power forms part of the judicial power of the Commonwealth; rather, it is administrative in nature.

Love v Attorney-General (NSW) [1990] HCA 4; 1990 169 CLR 307, Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 applied.

2. The power to confer non-judicial functions on judges as designated persons are two-fold: first, non non-judicial function that is not incidental to a judicial function can be conferred without the judges consent; and, secondly, no function can be conferred that is incompatible with either the judges performance with his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.

Re Kirby; Ex Parte Boilermakers' Society of Australia (1956) 14 CLR 254, Attorney-General (Cth) v R [1957] HCA 12; (1957) 95 CLR 529 (PC), Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 applied.

3. The 1987 amendments to the Act made it beyond doubt that the power to issue a warrant was conferred upon judges of Federal Courts as designated persons, and not on the judiciary as an institution.

Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 considered.

Per Brennan CJ, and Deane, Dawson and Toohey JJ

The fact that bias may be apprehended in any case in which the validity of an interception warrant is in issue does not mean that the practice of issuing such warrants is incompatible with an eligible judges' performance of his or her judicial functions - many other civil societies governed by the rule of law involve members of the judiciary in authorising the clandestine gathering of information.

Mistretta v United States [1989] USSC 9; (1989) 488 US 361, Klass v Federal Republic of Germany [1978] ECHR 4; (1978) 2 EHRR 214, United States v United States District Court for Eastern District of Michigan [1972] USSC 145; (1972) 407 US 297 referred to.

Per Gummow J

If the law operated so as to prevent an eligible judge from disclosing the fact that he or she had received information in the course of an application for an interception warrant prejudicial to a party in judicial proceedings, the judge's exercise of the judical power of the Commonwealth would be seriously impeded. To prevent such a predicament under the Act, the Crimes Act secrecy provisions and the general law of obligations of confidence must be read as subject to the ability of an eligible judge to inform any party of possible bias.

Per McHugh J, dissenting

The involvement of members of the judiciary in the enforcement of the criminal law, taken together with the possibility that a judge is obliged to maintain the secrecy of information revealed during the application for an interception warrant imposes a non-judicial function on the judge which is incompatible with that persons judicial functions.

Patrick Gunning