Woe CATCHWORDS Post and Telecommunications - validity of warrants issued pursuant to the Telecommunications Interception Act 1979 - prescribed form of warrant contained in regulations made pursuant to the Telecommunications Interception Act 1979 - whether failure of warrant to nominate any particular person or persons to execute it renders the warrant invalid - whether the Commissioner of Police may approve persons as persons who may exercise the authority conferred by a warrant which has already been issued - whether statement that there were reasonable grounds for suspecting that the communications service was being or may be used by a person likely to commit a narcotics offence without specifying what the offence was 1s adequate - relevance of fact that person or persons whose telephone service 1s being intercepted will have no knowledge of the interception. Telecommunications Interception Act 1979 ss.20, 22 and 28 Crimes Act 1914 s.10 Judiciary Act 1903 s.39B Federal Court of Australia Act 1976 ss.23, 32, 33, 34 and 39. REX FREDERICK JACKSON v. CHRISTOPHER WELLS & ORS No. G80 of 1985 Smithers, Evatt and Morling Jd . 30 October 1985 Sydney. toe. IN THE FEDERAL COURT OF AUSTRALIA NEW_S ) ) OQUTH WALES DISTRICT REGISTRY ) ) ) NO. G80 of 1985 GENERAL DIVISION BETWEEN: REX FREDERTCK JACKSON Appellant AND: CHRISTOPHER WELLES First Respondent AND: THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE Second Respondent AND: JAMES EDWARD LOOMES Third Respondent Judges Making Order: Smithers, Evatt and Morling dd. Date of Order: 30 October 1985 Where Made: Sydney. MINUTE_OF ORDER THE COURT ORDERS THAT: NOTE: The appeal be dismissed with costs. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. emrese ees IN THE FEDERAL COURT OF AUSTRALIA ) CORAM: DATED: ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G80 of 1985 ) GENERAL DIVISION ) BETWEEN: REX FREDERICK JACKSON Appellant AND: CHRISTOPHER WELLS First Respondent AND: THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE Second Respondent AND: JAMES EDWARD LOOMES Third Respondent Smithers, Evatt and Morling JJ. 30 October 1985 REASONS FOR JUDGMENT SMITHERS J: I agree with every one of the observations which have fallen from my brother, Morling J. I would add merely this: that the submission of Dr Woods was based largely on the circumstances that the provisions of the Telecommunications (Interception) Act 1979 (the Act) authorise an invasion of privacy of amost sensitive eae OS iedialial soy eo en : st meres re MAG ae vy oe nature. In such a situation it would be expected that the legislature would require that care be taken to ensure that what is authorised thereunder does not exceed that which is essential to achieve the legislative objective, and that so far as is reasonable the interests of persons affected would be protected. As was said by Lockhart J. in Australian Broadcasting Corporation & Anor v. Cloran & Ors. (1984) 57 ALR 742 at 745: "I am conscious of the fact that the administration of the criminal law requires that search warrants be issued for the purpose of obtaining evidence for legitimate use in criminal proceedings. But that consideration must be weighed against the interference with privacy that is the inevitable consequence of the execution of a search warrant. It must be remembered that the entry, search and seizure authorized by s.10 of the Crimes Act 1914 is not confined to the premises of a person suspected of committing a crime. The owner or occupier of the premises may be quite unconnected with the commission of any crime. This illustrates the necessity for search warrants, which are intrusions into the sanctity of a person's domain and concomitantly, an interference with his privacy, to define with reasonable particularity ail relevant matters; the premises, the things liable to he seized and the offences which were committed or suspected to have been committed." I am conscious that considerations of the kind referred to are applicable to warrants issued under the Act. It is apparent, however, that these considerations were present to the mind of the legislature. There were, an tres po however, practical considerations involved. The exercise of interception which is contemplated would in many cases need to be carried out by those engaged therein, continuously, day and night, for a considerable period, thus involving shifts of those on duty. Convenience therefore required a multiple authorisation. Taking into account the necessity to restrict those involved to trustworthy persons, the legislature provided in s.22 of the Act for the designation of suitable persons to perform the work of interception. Whatever may be said about the discretion or power of a person who is a judge in issuing warrants of the kind under discussion to introduce restrictions and conditions therein, it would be going too far to say that in a case in which the judge was satisfied of the matters of which he was required by s.20 of the Act to be satisfied as a condition of issuing a warrant by the person designated under s.22, he has not performed all that he was required to perform in issuing a warrant strictly in the form of the warrant provided by the regulations pursuant to s.28 of the Act. a a ~, ' ww tt nn a eS The order of the court is that the appeal be dismissed with costs. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Smithers. Arrafo ho Lo he Associate Dated: Je, [r6/ I2?2sS ore | not vee eee ee me pe p-—s 4 ' ' Sect esos Me eon ee, I ee IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G80 of 1985 GENERAL DIVISION BETWEEN : REX FREDERICK JACKSON Appellant AND: CHRISTOPHER WELLS First Respondent AND: THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE Second Respondent AND: JAMES EDWARD LOOMES Third Respondent CORAM: Smithers. Evatt and Morling JJ. DATED: 30 October 1985 REASONS FOR JUDGMENT EVATT J: In my view this appeal should be dismissed for the reasons for judgment given by Morling J with which I agree. I also agree with the additional observations of the Presiding Judge in respect of the relevant sections of the Telecommunications Interception Act 1979. I certify that thts-arnd the preceding pages ave*s true copy of the Reasons for Judament herein cof his Honour Mr Justice Evatt. As ate Dated: Joy, October, [AGS . ote we IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G80 of 1985 ) GENERAL DIVISTON ) BETWEEN as REX FREDERICK JACKSON Appellant AND: CHRISTOPHER WELLS First Respondent AND: THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE Second Respondent AND: JAMES EDWARD LOOMES Third Respondent CORAM: Smithers, Evatt and Morling JJ. DATED: 30 October 1985 REASONS FOR JUDGMENT MORLING J.: This is an appeal from a decision of a Judge of the Court dismissing an application challenging the validity of warrants issued by St. John J. and McGregor J. in reliance upon s.20 of the Telecommunications (Interception) Act 1979 ("the Act"). The applicant claims that the Court had jurisdiction to entertain the application by virtue of 3.39B of the Judiciary Act 1903, read with ss.32 and 23 of the Federal Court of Australia Act 1976. Section 398(1) provides that the mew ewe Ke ee 2. original jurisdiction of the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. The relief claimed in the application before the learned trial judge included a claim, in effect, for injunctions restraining the respondents from utilising material obtained as a result of implementing the warrants. Section 32 of the Federal Court of Australia Act confers upon the Court, to the extent that the Constitution permits, jurisdiction in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is involved. The trial judge was of the opinion that, had the warrants been found to be invalid, 3.23 of the Federal Court of Australia Act would have given the Court power to grant appropriate declaratory relief to that effect. On appeal it was argued by counsel for the first and second respondents that it would not be proper for the Court to grant any relief on the hearing of the appeal even if it was persuaded that the warrants were invalid. It was submitted that even if the warrants were invalid and the information obtained pursuant to them was obtained by an illegal inter- ception, it had been conclusively determined by the High Court ro i rn se ap pene le Tee. eae aie oiiaed try eer soe ns Se apt oe er ae rey ee a a, ay ue 3. in Hilton v Wells (1985) 58 ALR 245 that the Act did not forbid the tender in evidence of such information. Hilton v Wells was decided after the making of the initial application to the Court. Had I been of the opinion that any basis had been shown for a finding that the warrants were invalid it would have become necessary to determine the question whether any relief should be granted. However, since the question of the validity of the warrants has been fully argued and I have reached a firm conclusion that the learned trial judge was correct in deciding that the warrants were valid, it is unnecessary to determine that question. Section 20 of the Telecommunications (Interception) Act makes provision for the issue of warrants for the interception of telecommunications. Sub-section 20(1) is in the following terms: "20. (1) Where, upon application being made to a dudge 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 1s 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 seeenere nr ag, Coweras water abe te pot re ts re ee eae vie Q Perens eee poe 4. (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 reason~ ably 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 accord- ance 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." Persons who may be authorized to intercept communic- ations are referred to in sub-3. 22(1) of the Act which is the following terms: "22. (21) The Commisstoner of Police, or a member of the Australian Federal Police appointed by the Commissioner of Police, in writing, to be an authorising officer for the purposes of this section, may by writing under his hand, approve members of the Australian Federal Police and other persons ag persons who may exercise the authority conferred by a particular warrant, or by warrants, issued under 5.20." in needs ee eee) oan we ' ee ee vie ee Aico v Section 28 of the Act empowers the Governor-General to make regulations prescribing forms of warrants for the purposes of the Act and in pursuance of that power a form of warrant has been prescribed. In order to understand the arguments advanced by counsel for the appellant it is convenient to refer to that part of the prescribed form of warrant as makes counsel's argument explicable. The prescribed form is, in part, as follows: "WARRANT UNDER SECTION 20 TO: Persons approved under section 22 of the Telecommunications (Interception) Act 1979 in respect of this warrant. WHEREAS application has been made to me by (Full name and rank, if any, of applicant for warrant) , & member of the Australian Federal Police within the meaning of the Telecommunications (Interception) Act 1979, for the issue of a warrant under section 20 of that Act in respect of the following telecommunications service as defined in sub-section 5(1) of that Act, namely (here state location in Australia and description of service) AND WHEREAS I, {full name) ' a Judge of the Court of * in respect of whom an appropriate arrangement in force under section 19 of that Act is applicable, am satisfied, by information on oath, that - (a) there are reasonable grounds for suspecting that that telecommunications service is being, or is likely to be, used by a person who rere - ae . avy ¢ weotey wes Saletan de * cata hel wore age yee t - ma meee pe ere ee . es . eng sron: x has committed *x is suspected on reasonable grounds of having committed * is suspected on reasonable grounds of being likely to commit anarcotics offence within the meaning of that Act; and (b) the interception by members of the Australian Federal Police within the meaning of that Act ef communications made to or from that telecommunications service will, or is likely to, assist such members in, or in connection with, inquiries that are being made in relation to * such a narcotics offence that that person has committed * such a narcotics offence that that person is reasonably suspected of having committed * the likely commission, by that person, of such a narcotics offence: I HEREBY AUTHORIZE you to intercept communic-— ations that are being made to or from that service eo. * Omit if inapplicable." The warrants in question were addressed: "To: Persons approved under s.22 of the Telecommunications (Interception) Act 1979 in respect of this warrant." No individuals are named as being authorized by the warrants. Further, the warrants do not nominate the particular narcotics offences in relation to which St. John and McGregor JJ. had formed the requisite opinions under para. (a) of sub-s.20(1). ware oe see at oe we oe Lan Fee an roe 7. The recitals in the warrants state that the judges are satisfied, by information on oath that: "(a) there are reasonable grounds for suspecting that that telecommunications service is being, or ig likely to be, used by a person who is suspected on reasonable grounds of being likely to commit a narcotic offence within the meaning of that Act; and (b) the interception by members of the Australian Federal Police within the meaning of that Act of communications made to or from that telecommunications service will, or is likely to, assist such members in or in connection with, inquiries that are being made in relation to the likely commission, by that person of such a narcotics offence." Counsel for the appellant relied upon two arguments in support of their submission that the warrants were invalid. First, it was submitted that a warrant should speak on its face and should nominate a person or persons authorized by it. The failure of the warrants to nominate any particular person or persons was said to invalidate them. secondly, it was submitted that it was not sufficient that the warrants should state that there were reasonable grounds for suspecting that the communications service waa being, or may be, used by a person suspected of being likely to commit a narcotics offence without specifying what that offence was. The warrants faithfully follow the form prescribed under 3.28 of the Act. It is submitted, however, that the form should not be taken as a prescription of the form of a valid Warrant, but should be treated merely as a general guide to the ww "4 ene ee i wee cpr © ats. oe i a ere een mene ae ory 8. form of warrant authorized by 3.20. This being so, so it was argued, in accordance with the general law the warrants should have identified both the particular persons authorized by them and also the particular narcotics offences in respect of which there were reasonable grounds for suspecting that the relevant telecommunication services might be used. In my opinion these arguments cannot be sustained. There Is no doubt that a search warrant issued under s.10 of the Crimes Act 1914 is invalid if it fails to specify the particular offence in relation to which it is issued. See The Queen v Tillett ex parte: Newton (1969). 14 FER 101. However, the power given by s.10 to issue a warrant is a power to issue a "warrant authorising any constable named therein". Hence it is not in doubt that it is essential to the validity of a search warrant that the person authorized to make the search be specified in the warrant itself. But s.20 contains no such requirement as is found in 3.10 of the Crimes Act. No doubt there are practical reasons why this is so. The interception of telecommunications may take place over a period of months and it may not be practicable, at the date of issue of the warrant, to specify the names of all persons who may thereafter be involved in the interception. For this reason, so it appears to me, the prescribed form of warrant does not call for the nomination of particular persons. Instead, it specifies that the warrant is to be addressed to "persons -~——— tare ger He — wey NY Wp eer ees ee en ae en cere L- sytem soo? to. ae pt ir e+ Pa et SS approved under s.22 of the Telecommunications (Interception) Act 1979, in respect of this warrant". Section 22 authorizes the Commissioner of Police, by writing under his hand, to approve officers of the Federal Police and other persons "ag persons who may exercise the authority conferred by a particular warrant, or by warrants, issued under 8.20". The prescribed form of warrant 1s consonant with, and complementary to, 3.22. Both the section and the form contemplate that particular persons will not be mentioned by name in the warrant. Sub-section 22(1) expressly contemplates that the Commisstoner of Police may approve persons as pergong who may exercise the authority conferred by a warrant which is already issued. This is destructive of the argument that, at the date of its issue, the warrant must specify with particularity the name or names of the persons authorized by it. I am not unmindful of the sound policy reasons which, in the absence of statutory provisions authorising a different procedure, require that a warrant which may authorize conduct impinging on the rights of the citizen and in particular his right to privacy, should specify the persons authorized by the warrant to undertake the conduct authorized in the warrant. But considerations of this kind cannot prevail in the face of 3.20 and the prescribed form of warrant thereunder. Moreover, it is tobe observed that the issue of a warrant is made To . rn to > a mower ay 10. subject to any conditions or restrictions that the judge who issues the warrant sees fit to specify in the warrant itself. Thus some safeguard is provided in the legislation against the issue of warrants in a form which might otherwise permit unreasonable intrusion into the privacy of the citizen. For these reasons I do not think that the failure of the warrants to specify a particular person or persons as being authorized by them invalidates them. The same reasons lead me to the view that a warrant is not invalidated by the failure to specify in it a particular narcotics offence. The prescribed form does not call for the specification of any particular offence. No doubt the purpose of specifying a particular offence in a search warrant is to enable the person to whom it is addressed and the person whose premises are to be searched to know the exact object of the search - see Australian Broadcasting Corporation v. Cloran (1984) 57 ALR 742 at 744. But no such purpose would be served by specifying a particular offence in a warrant issued under s.20, since the person whose telecommunication service is being intercepted will have no knowledge of the interception. I should add that counsel for the appellants formally submitted that the learned trial judge erred in holding that 3.20 of the Act is not constitutionally invalid. This submission was not pursued in the light of the decision of the OTIS TTT cere sama Te pe High Court in Hilton v Wells (1985) 59 ALJR 396 and I need say 11. no more about it. costs. For all these reasons I would dismiss the appeal with I certify that this and the ten(i0) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Morling. Joon 3 y Associate Dated: 30] 10] 8S we ewes pan . as 7 2 aw aortas nas SO