• Any

CATCHWORDS

Police - Listening devices - Offence under State law to use withoutobtaining authority - Federal police not required to obtain"licence orpermission" under State law - "ether federal police enabled to use listeningdevice without obtaining authority -Invasion of Privacy Act 1971 (Q.),ss.43,46(1) -Australian Federal Police Act 1979 (Cth),ss. 9,12.

HEARING

ORDER

Set aside the order of the Court of Appeal of Queensland and in lieu thereoforder that the appeal to that Court be allowed, theappellant's conviction bequashed and a new trial be held.

DECISION

2. The questions which arise for decision are:

(1) Dids.43(2)(c) of theInvasion of Privacy Act 1971 (Q.)

("the Queensland Act") confer authority on Carter J to authorize

entry onto premises for the purposes of installing and

maintaining listening devices in circumstances where that entry

otherwise would have constituted an unlawful trespass?

(2) If not, was the approval granted by Carter J for the use of

listening devices wholly void?

(3) If the approval was wholly void, did s.12 of theAustralian

Federal Police Act 1979 (Cth) ("the Federal Act") have the

effect that the Australian Federal Police officers did not

require approval from a Supreme Court judge before using a

listening device?

3. If the approval was not wholly void, a number of other issues

arise. However, as a result of the view we take on the validity of

the approval as a whole, it is not necessary to address those issues.

4. It is convenient to consider these questions in the order in

which we have stated them.

The authority conferred by s.43(2)(c) of the Queensland Act



5. According to its long title, the Queensland Act is an Act to make

provision for, among other things:

"regulating the Use of Listening Devices".

"to or in relation to the use of any listening device by -

(i) a member of the police force acting in the

performance of his duty if he has been authorized

in writing to use a listening device by -

(a) the Commissioner of Police;

(b) an Assistant Commissioner of Police; or an

officer of police of or above the rank of

Inspector who has been appointed in writing

by the Commissioner to authorize the use of

listening devices,

under and in accordance with an approval in writing given by

a judge of the Supreme Court in relation to any particular

matter specified in the approval".

6. Section 43(3) deals with the granting of approval by a judge for

the use of a listening device. The sub-section provides that the

judge shall have regard to:

"(a) the gravity of the matters being investigated;

(b) the extent to which the privacy of any person is

likely to be interfered with; and

(c) the extent to which the prevention or detection of

the offence in question is likely to be assisted,

and the judge may grant his approval subject to such

conditions, limitations and restrictions as are specified

in his approval and as are in his opinion necessary in the

public interest".

7. It is common ground that, subject to the possible operation of

s.12 of the Federal Act, if the use of the listening devices was not

authorized by Carter J in the present case under s.43(2)(c), evidence

of the relevant conversations heard by means of the listening device

was not admissible by reason of the prohibition in s.46(1). That

sub-section renders evidence of the tape-recordings inadmissible if

that evidence was procured "as a result, direct or indirect, of the

use of a listening device used in contravention of section 43". The

question whether the approval given by Carter J purportedly under

s.43(2)(c) was valid is not answered by showing that Carter J made

a mere error of fact or law in giving an approval for the use of

listening devices. The question is whether the giving of that

approval involved a jurisdictional error.

8. Every unauthorized entry upon private property is a trespass, the

right of a person in possession or entitled to possession of premises

to exclude others from those premises being a fundamental common law

right ((1) Entick v. Carrington (1765) 2 Wils KB 275 at 291 (95 ER

807 at 817); Halliday v. Nevill[1984] HCA 80; (1984) 155 CLR 1 at 10 per Brennan J;

Plenty v. Dillon[1991] HCA 5; (1991) 171 CLR 635 at 639 per Mason CJ,

Brennan and Toohey JJ, 647 per Gaudron and McHugh JJ See also

Colet v. The Queen (1981) 119 DLR (3d) 521 at 526.). In accordance

with that principle, a police officer who enters or remains on private

property without the leave or licence of the person in possession or

entitled to possession commits a trespass unless the entry or presence

on the premises is authorized or excused by law ((2) Halliday v.

Nevill (1984) 155 CLR at 10 per Brennan J; Plenty v. Dillon (1991) 171

CLR at 639 per Mason CJ, Brennan and Toohey JJ, 647 per Gaudron and

McHugh JJ). Statutory authority to engage in what otherwise would be

tortious conduct must be clearly expressed in unmistakable and

unambiguous language. Indeed, it has been said that the presumption is

that, in the absence of express provision to the contrary, the

legislature did not intend to authorize what would otherwise have been

tortious conduct ((3) Plenty v. Dillon (1991) 171 CLR at 648 per

Gaudron and McHugh JJ; Morris v. Beardmore (1981) AC 446 at 455, 463;

Colet (1981) 119 DLR (3d) at 527-528.). But the presumption is

rebuttable and will be displaced if there is a clear implication that

authority to enter or remain upon private property was intended. Such

an implication may be made, in some circumstances, if it is necessary

to prevent the statutory provisions from becoming inoperative or

meaningless. However, as Gaudron and McHugh JJ observed in Plenty v.

Dillon ((4) (1991) 171 CLR at 654.):

"(I)nconvenience in carrying out an object authorized by

legislation is not a ground for eroding fundamental common

law rights".

9. In England, Lord Browne-Wilkinson has expressed the view that the

presence of general words in a statute is insufficient to authorize

interference with the basic immunities which are the foundation of

our freedom; to constitute such authorization express words are

required ((5) Wheeler v. Leicester City Council[1985] UKHL 6; (1985) AC 1054 at

1065; see also Marcel v. Commissioner of Police (1992) Ch 225 at 234;

Lord Browne-Wilkinson, "The Infiltration of a Bill of Rights", (1992)

Public Law 397 at 404-408.). That approach is consistent with

statements of principle made by this Court, to which we shall shortly

refer. An insistence on the necessity for express words is in

conformity with earlier judicial statements in England which call for

express authorization by statute of any abrogation or curtailment of

the citizen's common law rights or immunities. Thus, in Raymond v.

Honey, Lord Bridge of Harwich stated that ((6)[1981] UKHL 8; (1983) 1 AC 1 at 14.)

:

"a citizen's right to unimpeded access to the courts can

only be taken away by express enactment".

"When for the detection, prevention, or prosecution of crime

Parliament confers upon a constable a power or right which

curtails the rights of others, it is to be expected that

Parliament intended the curtailment to extend no further

than its express authorisation."

10. The insistence on express authorization of an abrogation or

curtailment of a fundamental right, freedom or immunity must be

understood as a requirement for some manifestation or indication that

the legislature has not only directed its attention to the question

of the abrogation or curtailment of such basic rights, freedoms or

immunities but has also determined upon abrogation or curtailment of

them. The courts should not impute to the legislature an intention to

interfere with fundamental rights. Such an intention must be clearly

manifested by unmistakable and unambiguous language. General words

will rarely be sufficient for that purpose if they do not specifically

deal with the question because, in the context in which they appear,

they will often be ambiguous on the aspect of interference with

fundamental rights ((8) See Chu Kheng Lim v. Minister for

Immigration (1992) 176 CLR 1 at 12 per Mason CJ).

11. So long as the requirement for express statutory authorization

is understood in the sense explained above, we would accept the

requirement as a correct statement of principle. At the same time,

in our view, the principle was expressed more simply by Brennan J in

Re Bolton; Ex parte Beane ((9)[1987] HCA 12; (1987) 162 CLR 514 at 523.) in these

terms:

"Unless the Parliament makes unmistakably clear its

intention to abrogate or suspend a fundamental freedom,

the courts will not construe a statute as having that

operation."

12. In Bropho v. Western Australia ((10)[1990] HCA 24; (1990) 171 CLR 1 at 18.), Mason

CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that

the rationale against the presumption against the modification or

abrogation of fundamental rights is to be found in the assumption that

it is:

"'in the last degree improbable that the legislature would

overthrow fundamental principles, infringe rights, or depart

from the general system of law, without expressing its

intention with irresistible clearness; and to give any such

effect to general words, simply because they have that

meaning in their widest, or usual, or natural sense, would

be to give them a meaning in which they were not really

used' ((11) Potter v. Minahan[1908] HCA 63; (1908) 7 CLR 277 at 304.) ".

13. The need for a clear expression of an unmistakable and

unambiguous intention does not exclude the possibility that the

presumption against statutory interference with fundamental rights may

be displaced by implication. Sometimes it is said that a presumption

about legislative intention can be displaced only by necessary

implication but that statement does little more than emphasize that

the test is a very stringent one ((12) See the discussion in Bropho

(1990) 171 CLR at 16-17.). As we remarked earlier, in some

circumstances the presumption may be displaced by an implication if it

is necessary to prevent the statutory provisions from becoming

inoperative or meaningless. However, it would be very rare for general

words in a statute to be rendered inoperative or meaningless if no

implication of interference with fundamental rights were made, as

general words will almost always be able to be given some operation,

even if that operation is limited in scope.

14. Section 43 of the Queensland Act does not contain express words

conferring power upon a Supreme Court judge to authorize conduct

which would otherwise be tortious and involve interference with a

fundamental common law right. In this case, the installation of the

listening device in the premises of Cosco Holdings Pty. Ltd. ("Cosco")

infringed the fundamental right of a person to exclude others from

his or her property. Section 43 authorizes an invasion of privacy by

allowing, in certain circumstances, the monitoring and recording of

private conversations. The question is whether it also allows a judge

to authorize members of the police force to enter onto premises in

such a way as would otherwise amount to a trespass in order to install

the devices.

15. The requirement in s.43(3)(b) that the judge shall have regard

to "the extent to which the privacy of any person is likely to

be interfered with" does not necessarily or clearly point to

authorization of entry onto premises. In the context in which it

appears, it points naturally to interference with the privacy of

communication.

16. The respondent argued that, in the context of s.43(3),

authorization "to use a listening device" extends to installation of a

listening device where it is necessary to enter onto premises in order

to listen to a private conversation. One answer to that argument is

that the word "use" has a narrower meaning. That meaning is to be

gleaned from the definition of "listening device" in s.4 of the

Queensland Act. The definition is in these terms:

"'listening device' means any instrument, apparatus,

equipment or device capable of being used to overhear,

record, monitor or listen to a private conversation

simultaneously with its taking place" (emphasis added).

17. The other and more compelling answer is that there is no clear

expression in the legislation of an unmistakable and unambiguous

intention to confer such a power. In our view, it cannot be said that

there is to be implied in s.43 power in a judge to authorize conduct

which otherwise would amount to a trespass. Support for this view is

provided by the dissenting judgments in Reference re an Application

for an Authorization ((13) (1984) 14 DLR (4th) 546, per Dickson J,

with whom Chouinard J concurred. See also Lyons v. The Queen (1984)

14 DLR (4th) 482, per Dickson J, with whom Chouinard J concurred.)

and Dalia v. United States ((14)[1979] USSC 69; (1979) 441 US 238, per Stevens J,

with whom Brennan and Marshall JJ concurred.). Each of

these cases concerned the question whether there should be implied

into a statute authorizing the use of listening devices the power to

effect otherwise tortious entry to install such devices.

18. In Dalia v. United States, Stevens J adopted as his starting

point the proposition that "it is most unrealistic to assume that

Congress granted such broad and controversial authority to the

Executive without making its intention to do so unmistakably

plain" ((15) ibid. at 266.). In his Honour's view, the implication

of such powers into the statute was "especially anomalous" because the

statutory regime established to regulate the use of listening devices

was "in all other respects ... exhaustive and explicit" ((16) ibid. at

266-267.). According to Stevens J ((17) ibid. at 279.):

"Congressional silence should not be construed to authorize

the Executive to violate state criminal laws or to encroach

upon constitutionally protected privacy interests ...

Without a legislative mandate that is both explicit and

specific, I would presume that this flagrant invasion of the

citizen's privacy is prohibited".

19. It may be that Stevens J was influenced by constitutional

considerations not present in the Australian context. However,

the same comment cannot be made about the dissent of Dickson J in

Reference re an Application for an Authorization, as the question in

that case arose for decision before the introduction of the Canadian

Charter of Rights and Freedoms. In that case, Dickson J held that

a judge granting an authorization to use a listening device under the

relevant Canadian legislation did not possess any authority to include

a right of entry as a term of authorization ((18) (1984) 14 DLR (4th)

at 570. See also Lyons (1984) 14 DLR (4th) at 488.).

20. First, Dickson J was not convinced that the interception of

communications contemplated by the statute could not have been

achieved without a trespass; interception may well have been more

difficult, but it would not have been impossible. "The fact that

(communications) could perhaps be intercepted more frequently and

more conveniently if there were such a power constitutes ... scant

justification for inferring such a power" ((19) ibid. at 557.).

Secondly, Dickson J preferred, as we do, the dissenting opinion of

Stevens J in Dalia v. United States - that where ((20) ibid. at 559.)

:

"a legislative scheme speaks in considerable detail about

most aspects of an issue, but is silent on one aspect, that

silence is particularly telling ... Parliament's silence

cannot be taken to sanction what amounts to breaking and

entering."

21. The scheme in question in this case, established by Pt IV of the

Queensland Act, is different in its precise words from the legislation

in question in Lyons and Dalia. However, like the legislation in

issue in those cases, Pt IV provides a detailed regime governing the

use of listening devices and the publication of conversations recorded

or overheard through the use of listening devices. Section 43(1) of

the Act prohibits the use of listening devices to overhear private

conversations. Section 43(2) provides a number of exceptions to the

general prohibition in s.43(1), including provision for a judge of the

Supreme Court to authorize the use of such a device ((22) The other

exceptions provided for are where the person using the device is a

party to the conversation (s.43(2)(a)), where a person unintentionally

overhears a private conversation by means of a telephone (s.43(2)(b)),

where a Commonwealth customs officer is authorized by the

Comptroller-General of Customs and Excise to use a device

(s.43(2)(c)(ii), and where a person "employed in connexion with the

security of the Commonwealth" acting under a Commonwealth Act uses a

device (s.43(2)(c)(iii)).), and s.43(3) lists three matters to which

the judge is to have regard:

"(a) the gravity of the matters being investigated;

(b) the extent to which the privacy of any person is likely

to be interfered with; and

(c) the extent to which the prevention or detection of the

offence in question is likely to be assisted".

22. Once an authorization is granted, s.43(5) requires the

Commissioner of Police to inform the Registrar of Commercial Acts of

the authorization and report to the Registrar each month. Section

43(6) prohibits any person who uses a listening device to listen to

a conversation pursuant to an authorization from communicating or

publishing the conversation except in the performance of his or her

duty. The Act also contains detailed provisions dealing with the

publication of private conversations unlawfully listened to ((23)

s.44.) and the publication of private conversations by parties to such

conversations ((24) s.45.). Any evidence of private conversations

obtained "as a result ... of the use of a listening device used in

contravention of section 43" is inadmissible as evidence, subject to

certain exceptions ((25) s.46.). Provision is made for the

destruction of information not relating to a criminal offence obtained

by the authorized use of a listening device ((26) s.47.). Finally,

advertising of listening devices is prohibited ((27) s.48.). The

regulatory regime established by Pt IV is clearly intended to protect

persons from the invasion of privacy involved in the use of a listening

device to overhear and record private conversations. The absence of

any reference to a power of entry in this detailed and protective

regime tells against the argument that such a power is to be implied

((28) See Reference re an Application for an Authorization (1984) 14 DLR

(4th) at 559 per Dickson J).

23. Further, it has not been suggested that such listening devices

as existed at the time the legislation was enacted could not be used

without making entry for installation which would amount to a

trespass. Although it may be that many devices required entry to

premises for installation, this cannot be said of all devices.

Further, as Dickson J observed ((29) ibid. at 557.), lawful entry

may be gained to the premises to effect installation through the

co-operation of a person who has a legal right of entry to the

premises.

24. It follows that, in our view, the Queensland Act did not confer

power on Carter J to authorize entry onto the premises of Cosco. In

the light of this conclusion, it is necessary to examine the validity

of Carter J's approval.

The validity of Carter J's approval



25. On 26 October 1989, Carter J approved the use of listening

devices in relation to the relevant investigations. Paragraph 1 of

the order was in these terms:

"1. That Kenneth Charles SCANLAN of the Queensland Police

Force by himself or by means of any other person engaged

in or assisting the investigation of the said matter,

use any listening device or devices capable of

recording, overhearing, monitoring or listening to a

private conversation simultaneously with its taking

place, such listening device or devices to be installed

in premises occupied by Santo Antonio COCO at 11 Anzac

Road, Carina, and premises occupied by COSCO Holdings

Pty Ltd at corner of Antimony and Emery Streets, Carole

Park in the State of Queensland."

"1. That any authorised Police Officer or person engaged in,

or assisting the investigation of the said offence, to

enter and remain upon the said premises for the purposes

of installing, maintaining, servicing and retrieving the

said listening device or devices."

26. This condition does not make sense unless additional words are

supplied. One possibility is to read in the words "is otherwise

authorized" before the words "to enter and remain". If these words

are supplied, the grant of approval would be subject to any police

officer or person investigating the offence being otherwise lawfully

authorized to enter and remain upon the premises for the purposes

mentioned. But it could not have been intended to make the approval

subject to every person engaged in or assisting the investigation

being so authorized. The only persons needing such authorization were

those installing, maintaining, servicing and retrieving the listening

devices.

27. The other and, in our view, more likely possibility is that the

words "is hereby authorized" should be inserted before the words "to

enter and remain". Although it would not have been necessary to

authorize all those engaged in or assisting the investigation,

Carter J, considering that he had power to do so, might well have

thought it desirable to grant an approval in those terms. As it

happens, s.43(2)(c) does not confer such a power. Nonetheless, the

terms of the approval indicate that the question which Carter J

addressed was whether he had power to approve and should approve the

installation of listening devices at the premises of Cosco and the

appellant and the use of the devices so installed. The terms of the

approval show that he misapprehended the power that the statute

conferred. He purported to exercise a power different from the power

reposed in him.

28. Therefore, the question that arises is whether the part of

Carter J's order purporting to authorize entry (contained in

"condition 1", but also encompassing part of par.1 of the approval)

can be disregarded so as to leave on foot a valid approval for use of

the device in so far as that use did not involve otherwise unlawful

entry onto premises. The argument in favour of total invalidity was

presented as an issue of severability. However, in our view, the

question of validity depends upon what was a misapprehension by

Carter J of the nature and scope of the discretionary power which was

conferred by s.43(2) of the Queensland Act.

29. It follows from what we have already said that Carter J

misapprehended the nature and scope of the power. By so doing, he

misconstrued the statute which gave him jurisdiction, addressed an

irrelevant consideration and exceeded his jurisdiction ((30) See

Anisminic v. Foreign Compensation Commission[1968] UKHL 6; (1969) 2 AC 147 at 195 per

Lord Pearce; Reg. v. Gray; Ex parte Marsh[1985] HCA 67; (1985) 157 CLR 351 at 377 per

Mason J). This error might also be characterized as an error on the

face of the record.

30. The extraneous factor to which Carter J had regard, namely, the

perceived necessity to approve entry onto private property for the

purpose of installing, maintaining, servicing and retrieving listening

devices, not only contributed to the making of the decision to approve

the use of the listening devices but it also took the form of an

invalid authorization to enter onto private property. No doubt in

some circumstances it is possible to disregard that part of the

decision that goes beyond power and treat as valid that part of the

decision which is within power. But that must become a much more

contentious exercise when the invalid part of the decision has

influenced the making of the valid part of the decision. In this

case, the approval is expressed in such a way as to make it appear

that authorization to enter private property was an integral and

essential element in the approval to use the listening devices. So

much is made clear by the reference to installation in both the

paragraph which constitutes the approval and the first condition. In

this situation there is no scope for speculation, on the assumption

that speculation is legitimate, about what Carter J would have done

had he appreciated that authorization of entry onto private property

was beyond power.

31. If it were necessary to consider the question from the viewpoint

of severance, we would come to the conclusion that it is not possible

to sever. The fact that what is bad is an integral and essential

element of what is good leads to the conclusion that the approval is

wholly void.

32. In this respect the respondent accepted that the existence of

the authority did not preclude an attack on its validity in these

proceedings in order to determine whether the evidence obtained by use

of the listening device was admissible against the appellant. It is

clear that the approval and the warrants are administrative and not

judicial orders ((31) Love v. Attorney-General (N.S.W.) (1990) 169 CLR

308 at 322-323.).

Section 12 of the Federal Act

33. Section 12, so far as is relevant, provides:

"A member or staff member is not required under, or by

reason of, a law of a State or Territory:

(a) to obtain or have a licence or permission for doing

any act or thing in the exercise of his powers or

the performance of his duties as a member or staff

member".

34. The argument is that s.12(a) authorizes a member of the Federal

Police, without either the approval or the authorization required by

s.43, to do what would be permissible by a State police officer only

pursuant to s.43(2)(c) of the Queensland Act. In our view, s.12 is

not capable of being given the broad operation for which the

respondent contends. It may be that s.12 overcomes the need under

State or Territory law to have a simple licence or permission, e.g. a

driver's licence or a licence to carry firearms. But to say that

falls far short of saying that s.12 also applies so as to dispense

with the necessity for approval under s.43(2)(c) of the use of a

listening device under a statutory regime which gives very careful

attention to the need to ensure that the decision-maker balances the

interests of privacy with the public interest in investigating

criminal offences and in preventing and detecting such offences.

35. Section 12(a), in its reference to "licence or permission" is

ambiguous; it is not clear precisely what is contemplated by this

phrase. Further, the meaning contended for by the respondent is

so wide as to be, in our view, unreasonable. Accordingly, it is

appropriate to consider extrinsic material in ascertaining the meaning

of the section ((32)Acts Interpretation Act 1901 (Cth),s.15AB(1).).

36. When the legislative history ofs.12 is examined, it can be seen

that the section was adopted froms.6(4) of the Commonwealth Police

Act 1957 (Cth), at the time when the Commonwealth Police Force became

the Australian Federal Police ((33) See Australia, House of

Representatives, Australian Federal Police Bill 1979, Explanatory

Memorandum at 2.). The debates in the House of Representatives on the

Commonwealth Police Bill reveal that s.6, as a whole, was ((34)

Commonwealth, House of Representatives, Parliamentary Debates

(Hansard), 27 November 1957 at 2634.):

"designed to confer upon Commonwealth police officers, in

relation to the laws of the Commonwealth, all the powers and

duties of State police officers either at common law or by

the statute law of the States".

37. To illustrate the operation of s.12, the example of firearms,

referred to above, is instructive. Under, for example, s.5 of the

Firearms Act 1989 (N.S.W.), no person is permitted to possess a

firearm unless authorized to do so by a licence or permit. However,

under s.4(2)(a) of the Firearms Act, a member of the New South Wales

Police Service is not required to comply with s.5 ((35) See also s.3

of the Police Service Act 1990 (N.S.W.), which defines "police officer"

as a member of the New South Wales Police Service.). Section 4 of

the Firearms Act is silent as to Federal Police officers; however s.12

of the Federal Act would operate in these circumstances so that a

Federal Police officer would not be required to comply with s.5 when

possessing a firearm in the performance of his or her duties.

38. In relation to the use of a listening device, however, the

position is significantly different. Under s.43 of the Queensland

Act, a member of the Queensland Police Service is required to have an

authority to use a device. Accordingly, if Federal Police officers

are to be placed in substantially the same position as State police

officers, and not to have powers greater than those of State police

(except in so far as is expressly provided elsewhere in the Federal

Act), then s.12 should not be given an operation that would allow

Federal Police officers to do, without authority, what could be done

by State police officers only with authority.

Conclusion



39. It follows from all that we have said that the evidence of the

appellant's private conversations was obtained by means of the use

of a listening device contrary to s.43 of the Queensland Act and was

inadmissible.

40. The appeal must be allowed. The respondent conceded in argument

that, if the evidence obtained by use of the listening device was

inadmissible, then the appellant's conviction should be quashed and a

new trial ordered. Accordingly, we would quash the appellant's

conviction and order a new trial.

DEANE AND DAWSON JJ Subject to the comments which follow, we agree

with the judgment of Mason CJ, Brennan, Gaudron and McHugh JJ

2. It is settled law that a court should not impute to a legislature

an intention either to abolish or to modify a fundamental common law

right or privilege unless the relevant legislation makes such an

intention unambiguously clear ((36) See, e.g., Baker v. Campbell

[1983] HCA 39; (1983) 153 CLR 52 at 96, 116 and 123; Hamilton v. Oades[1989] HCA 21; (1989) 166 CLR

486 at 495, 500; Bropho v. Western Australia[1990] HCA 24; (1990) 171 CLR 1 at 17.).

Obviously, the most satisfactory means of manifesting a legislative

intent to that effect is by express and specific words. There can,

however, be circumstances where such a legislative intent is made

unambiguously clear notwithstanding the absence of express words ((37)

See, e.g., Mortimer v. Brown[1970] HCA 4; (1970) 122 CLR 493 at 498-499; Pyneboard

Pty. Ltd. v. Trade Practices Commission[1983] HCA 9; (1983) 152 CLR 328 at 341, 347;

Sorby v. The Commonwealth[1983] HCA 10; (1983) 152 CLR 281 at 289-290.). One

example of such circumstances is where the relevant legislative

provisions would otherwise be rendered either inoperative or

nonsensical. Indeed, the relevant provisions of theInvasion of

Privacy Act 1971 (Q.) ("the Act") would provide such an example if the

definition of "listening device" in s.4 of the Act were expanded by

adding the words "concealed on private premises without the knowledge

or consent of the occupier".

3. Again, if the circumstances in which a listening device could

be used were, as a practical matter, confined to cases where the

listening device was installed in premises without the knowledge

of the occupier, it would be strongly arguable that the relevant

provisions of the Act manifested a clear legislative intent to

authorize the clandestine entry of private premises to the extent

necessary to install and maintain a listening device whose use was

authorized by those provisions. There are, however, a variety of

circumstances in which a listening device can be used without any

clandestine entry of premises being necessary. Listening devices

can be used to monitor conversations in circumstances where they are

installed and maintained on premises pursuant to the consent of the

occupier. They can also be used in circumstances where they are not

even on premises. That being so, it simply cannot be said that the

provisions of the Act impliedly ((38) The power of a judge to grant

authority for the use of a listening device is implicit in s.43(2)(c)'s

provision that the prohibition on the use of listening devices imposed

by s.43(1) does not apply in certain circumstances where the use of

the device is "in accordance with an approval in writing given by a

judge of the Supreme Court in relation to any particular matter

specified in the approval".) empowering a judge to grant

authority for the use of a listening device would be rendered either

inoperative or nonsensical by a refusal to impute to the legislature

an intention to authorize, directly or indirectly, what would

otherwise be an unlawful entry on premises. Nor is there anything

else in the Act which supports and makes manifest a clear and

unambiguous legislative intent to that effect. It follows that the

provisions of the Act impliedly authorizing a judge to grant authority

to use a listening device do not also empower a judge granting such

authority to authorize the commission of otherwise unlawful acts in

introducing or maintaining the device on private property.

4. We are, of course, conscious of the fact that our conclusion

that the relevant provisions of the Act do not directly or indirectly

authorize an otherwise unlawful entry upon premises does not lie well

with the decisions of the United States Supreme Court in Dalia v.

United States ((39)[1979] USSC 69; (1979) 441 US 238.) and of the Supreme Court of

Canada in Lyons v. The Queen ((40) (1984) 14 DLR (4th) 482.) and

Reference re an Application for an Authorization ("the Wiretap Case")

((41) (1984) 14 DLR (4th) 546.). With all due respect, however, we

consider that the reasoning in the dissenting judgments of Dickson J

in the two Canadian cases is to be preferred in this country. In that

regard, we note that Dickson J clearly recognized that a legislative

intent to authorize trespass could be made manifest by necessary

implication as well as by express words ((42) ibid. at 557, 566, 569.).

5. The wording of the authority to use listening devices in the

present case is unsatisfactory in that some words would seem to have

been accidentally omitted from the first of its "conditions". It

is at least possible that the missing words would have expressly

purported to authorize those installing the devices to commit acts

which would otherwise constitute trespass to property. Be that as

it may, the material placed before Carter J in support of the

application for the authority clearly disclosed that the listening

devices would be clandestinely concealed in private premises by

conduct which involved such acts. The inference is unavoidable that

his Honour mistakenly considered or assumed that he was empowered by

the Act to grant express or implied authority to engage in that

otherwise unlawful conduct. That mistake resulted in a fundamental

misapprehension by Carter J about the extent of the powers being

exercised and the nature and extent of the authority which was given.

The effect of that misapprehension was to nullify the authority.

Indeed, it is unlikely in the extreme that Carter J would, but for

that fundamental misapprehension, have given the authority in the

face of the material disclosing an intention to engage in otherwise

unlawful conduct.

TOOHEY J On 1 July 1993 the Court granted to the appellant, Santo

Antonio Coco, special leave to appeal from the judgment of the Court

of Appeal of the Supreme Court of Queensland given on 27 May 1993. By

its judgment, that Court dismissed the appellant's appeal against his

conviction of the offence of offering to bribe Commonwealth officers

contrary to s.73(3) of theCrimes Act 1914 (Cth). The Court of Appeal

refused the appellant leave to appeal against the sentence imposed for

that offence.

2. In granting the appellant special leave to appeal, the Court

excluded the matter of sentence and also a ground of appeal based upon

Bunning v. Cross ((43)[1978] HCA 22; (1978) 141 CLR 54.). At the same time the

appellant was told that, on the hearing of the appeal, his counsel

could renew the application for special leave to appeal based on

Bunning v. Cross. Counsel renewed the application in that regard but,

with the agreement of the parties, the Court heard argument only on

those matters the subject of the original grant of special leave to

appeal. Argument on the other matter awaits the outcome of this

appeal.

Listening devices



3. The appeal itself concerns the meaning and operation of the

Invasion of Privacy Act 1971 (Q.) ("theAct"), described in its long

title as:

"AnAct to make provision for the licensing and control of

Credit Reporting Agents and Private Inquiry Agents, for

regulating the Use of Listening Devices and for other

purposes".

4. The issues arise underPt IV - Listening Devices ((44)ss.41-48.).

A "listening device" is defined bys.4 to mean:

"any instrument, apparatus, equipment or device capable of

being used to overhear, record, monitor or listen to a

private conversation simultaneously with its taking place".

"any words spoken by one person to another person in

circumstances that indicate that those persons desire the

words to be heard or listened to only by themselves or that

indicate that either of those persons desires the words

to be heard or listened to only by themselves and by some

other person, but does not include words spoken by one

person to another person in circumstances in which either

of those persons ought reasonably to expect the words may

be overheard, recorded, monitored or listened to by some

other person, not being a person who has the consent,

express or implied, of either of those persons to do so".

5.Section 43 of theAct makes it an offence to use a listening

device in relation to a private conversation. There are a number of

exceptions. It is necessary to set out part of the section:

" 1 A person is guilty of an offence against thisAct

if he uses a listening device to overhear, record, monitor

or listen to a private conversation and is liable on

conviction on indictment to a penalty not exceeding $2,000

or to imprisonment for not more than two years or to both

such penalty and imprisonment.

(2) Subsection (1) of this section does not apply -

(a) where the person using the listening device is a

party to the private conversation;

(b) to the unintentional hearing of a private

conversation by means of a telephone;

(c) to or in relation to the use of any listening

device by -

(i) a member of the police force acting in the

performance of his duty if he has been

authorized in writing to use a listening

device by -

(a) the Commissioner of Police;

(b) an Assistant Commissioner of Police; or an

officer of police of or above the rank of

Inspector who has been appointed in writing

by the Commissioner to authorize the use of

listening devices,

under and in accordance with an approval in

writing given by a judge of the Supreme Court

in relation to any particular matter specified

in the approval;

(ii) an officer employed in the service of the

Commonwealth in relation to customs authorized

by a warrant under the hand of the

Comptroller-General of Customs and Excise to

use a listening device in the performance of

his duty;

(iii) a person employed in connexion with the

security of the Commonwealth when acting in

the performance of his duty under anAct

passed by the Parliament of the Commonwealth

relating to the security of the Commonwealth.

(3) In considering any application for approval to

use a listening device pursuant to subparagraph (i) of

paragraph (c) of subsection (2) of this section a judge of

the Supreme Court shall have regard to -

(a) the gravity of the matters being investigated;

(b) the extent to which the privacy of any person is

likely to be interfered with; and

(c) the extent to which the prevention or detection of

the offence in question is likely to be assisted,

and the judge may grant his approval subject to such

conditions, limitations and restrictions as are specified

in his approval and as are in his opinion necessary in the

public interest."

6. The section has important consequences for the admissibility of

evidence in civil and criminal proceedings. This can be seen from the

first two sub-sections ofs.46 which read:

" 1 Where a private conversation has come to the knowledge

of a person as a result, direct or indirect, of the use of

a listening device used in contravention ofsection 43 of

thisAct, evidence of that conversation may not be given by

that person in any civil or criminal proceedings.

(2) Subsection (1) of this section does not render

inadmissible -

(a) evidence of a private conversation that has, in

the manner referred to in that subsection, come

to the knowledge of the person called to give the

evidence, if a party to the conversation consents

to that person giving the evidence;

(b) evidence of a private conversation that has,

otherwise than in the manner referred to in that

subsection, come to the knowledge of the person

called to give the evidence, notwithstanding that

he also obtained knowledge of the conversation in

such a manner; or

(c) in any proceedings for an offence against thisAct

constituted by a contravention of, or a failure to

comply with, any provision of this Part, evidence

of a private conversation that has in the manner

referred to in that subsection come to the

knowledge of the person called to give the

evidence."

Carter J's approval



7. On 26 October 1989 Carter J, acting pursuant tos.43(2)(c)(i)

of theAct, approved the use of listening devices "in connection with

the matter of police investigations relating to corruption including

an offence of corruptly influencing Commonwealth Officers under

Section 73(3) of theCrimes Act 1914". The order spelled out the

approval in the following terms:

"1. That Kenneth Charles SCANLAN of the Queensland Police

Force by himself or by means of any other person engaged

in or, assisting the investigation of the said matter,

use any listening device or devices capable of

recording, overhearing, monitoring or listening to a

private conversation simultaneously with its taking

place, such listening device or devices to be installed

in premises occupied by Santo Antonio COCO at

11 Anzac Road, Carina, and premises occupied by COSCO

Holdings Pty Ltd, at corner of Antimony and Emery

Streets, Carole Park in the State of Queensland.

2. That this authorisation apply until 12 noon on the 23rd

day of November 1989 or until further order.

AND I DO ORDER THAT SUCH APPROVAL BE SUBJECT TO THE

FOLLOWING CONDITIONS

1. That any authorised Police Officer or person engaged in,

or assisting the investigation of the said offence, to

enter and remain upon the said premises for the purpose

of installing, maintaining, servicing and retrieving the

said listening device or devices.

2. That no such listening device or devices shall be used

to record any conversation between Santo Antonio COCO,

and his legal advisers.

3. That no notice or report relating to this application

shall be published and no record of the application,

summons and affidavit, or of any approval or order given

or made thereon shall be available for search by any

person except by direction or order of a Judge of this

Honourable Court.

4. That the intended procedures set forth in the affidavits

of Kenneth Charles SCANLAN and John William ADAMS both

sworn the 26th day of October 1989 be complied with."

8. On 27 October 1989, that is, the day after the approval by

Carter J, Ronald Joseph Redmond, Acting Commissioner for Police

in Queensland, authorized Detective Inspector Scanlan, who was

mentioned in the approval, "in the use of listening devices under

and in accordance with an approval given in writing by Mr Justice

W. CARTER, a Judge of the Supreme Court of Queensland". In support

of the application for the approval which had been made by

Commissioner Redmond, Det. Insp. Scanlan had, in an affidavit,

nominated members of the Australian Federal Police Technical Unit

to assist in the installation of listening devices, members of the

Australian Federal Police Force as monitors of the listening devices

and as investigating members and two transcribers who belonged to

the Commonwealth Public Service. In the same affidavit it was made

clear that 7 days might be needed to install the listening devices

because the residential premises were occupied and the factory

premises occupied by Cosco Holdings Pty. Ltd. were operated on a

twenty-four hours basis.

9. Although the approval referred to the installation of listening

devices in two premises, one residential and the other commercial, it

was only in respect of the factory premises that installation took

place.

The challenge to admissibility of evidence



10. At the appellant's trial a body of evidence comprising tape

recordings of conversations which took place at his office at the

factory, and which was obtained by means of the listening device

installed pursuant to the approval of Carter J, was admitted against

the appellant's objection. It was said to be common ground that if

the conversations so recorded should not have been admitted into

evidence the appellant's conviction cannot be sustained. The

appellant mounted a number of challenges to the reception of that

evidence.

11. The starting point for these challenges ((45) Other of course than

those arising under Bunning v. Cross.) wass.46 of theAct which

precludes reception of evidence of a conversation that has come to the

knowledge of a person by the "use of a listening device in

contravention ofsection 43". The factual basis of the appellant's

argument was as follows. On 6 November 1989 two Federal Police

officers installed a listening device at the factory. In order to do

so they gained entrance to the premises by subterfuge. They

impersonated Telecom employees and falsely claimed to employees of

Cosco Holdings that they had come to investigate a fault in telephone

lines. That conduct, it was said, was in breach of s.75(b) of the

Crimes Act. The listening devices were powered by electricity and were

used without the knowledge or consent of the company over a period of

almost 200 hours. That conduct, it was said, was in breach of s.408 of

the Criminal Code (Q.). While the conduct itself is not in issue, this

Court is not asked to find that offences were committed; it is enough

that the officers acted unlawfully and were trespassers.

12. Section 43(1) creates the offence of using a listening device

but s.43(2) excludes the operation of sub-s.(1) in the circumstances

there mentioned. One of those exclusions is the use of a listening

device by a member of the police force "acting in the performance of

his duty" if that member has been so authorized in writing by a senior

police officer "under and in accordance with an approval in writing

given by a judge of the Supreme Court". Put broadly, evidence

obtained by means of a listening device is inadmissible unless one of

the excluding provisions ofs.43(2) of theAct is met. The relevant

exclusion here iss.43(2)(c)(i).

13. Carter J's approval does not in its terms authorize any person

to act contrary to law. But one of the conditions on which approval

was granted was that those engaged in investigating the specified

offence "enter and remain upon the premises for the purpose of

installing, maintaining, servicing and retrieving the said listening

device or devices".

14. The appellant posed a dilemma for the respondent somewhat in

the following terms. If the approval purported to authorize illegal

entry, such authorization would be beyond power and void. Further,

the terms of the approval which purported to authorize illegal entry

would be incapable of severance. The whole of the approval having

been of no effect, the evidence was obtained in contravention ofs.43

of theAct and was therefore inadmissible unders.46. However, if the

authorization did not purport to authorize illegal entry or if it were

severable, the police officers were acting other than in performance

of their duties by the continuing trespass brought about by the

presence of the listening device and the abstraction of electricity.

Section 43(2) only excuses a police officer acting pursuant to

authority in performance of duty. Again, there had been a

contravention ofs.43 and the evidence was inadmissible.

15. The respondent had a number of answers to these contentions.

The primary submission was that the power to authorize the use of

listening devices necessarily contained a power to authorize illegal

entry in order to install such devices. Alternatively, the respondent

argued that the authorization of illegal entry could be severed and

that, as the term "use" was restricted to "overhear, record, monitor

or listen to", illegal entry did not fall within the scope of the

prohibition ins.43. On this view, the surreptitious entry would be

relevant only to the issue arising under Bunning v. Cross. As to the

presence of the listening device and the abstraction of electricity,

the respondent contended that these trespasses were very minor and did

not detract from the performance of the police officers' duties.

An implication of unlawful entry?

16. There is nothing in theAct which in express terms authorizes

entry on to premises without the consent of the occupier ((46)

Contrast withListening Devices Act 1969 (Vic.), s.4A(3); Listening

Devices Act 1972 (S.A.), s.6(7).). Nevertheless, it was said by the

respondent that unless unlawful entry is implied from the power to

grant an approval the Act cannot be effective. There are situations in

which an occupier of premises might consent to the installation of a

listening device (for instance, where an employee is suspected of being

involved in criminal activity or where an illegal deal is expected to

be transacted in a hotel room) and situations in which the listening

device does not require entry on to premises at all. Nevertheless,

particularly where residential premises are involved, the practical

operation of the Act is reduced if entry must be lawful, that is, with

the consent of the occupier.

17. However, the weight of authority is strongly against the

implication necessary for unlawful entry to fall within the general

operation of s.43(2). That authority is at least as early as 1765

when in Entick v. Carrington Lord Camden L.CJ said ((47) (1765) 19

St Tr 1029 at 1066.):

"By the laws of England, every invasion of private property,

be it ever so minute, is a trespass. No man can set his

foot upon my ground without my licence, but he is liable to

an action, though the damage be nothing. ... If he admits

the fact, he is bound to shew by way of justification, that

some positive law has empowered or excused him."

" A number of statutes also confer power to enter land

or premises without the consent of the occupier. But the

presumption is that, in the absence of express provision to

the contrary, the legislature did not intend to authorize

what would otherwise be tortious conduct".

18. Is there any basis for implying in Pt IV of the Act an authority

to effect unlawful entry for the purpose of installing a listening

device? The respondent contended that there was, relying heavily

on the judgment of the Supreme Court of Canada in Lyons v. The

Queen ((50) (1984) 14 DLR (4th) 482.).

19. Lyons concerned a charge of conspiracy to import cocaine. At

trial the Crown introduced evidence of several private conversations

which had been intercepted pursuant to court authorizations. The

authorizations made no reference to the manner of installing the

listening device, a radio transmitter, but each authorization

permitted the "interception" of private communications and referred

to the use of "any electromagnetic, acoustic, mechanical or other

device". The Supreme Court, by majority, held that although the

relevant provisions of the Canadian Criminal Code did not expressly

authorize entry into private premises, many of the kinds of

interception provided for in the Code involved a trespass of some

kind. Parliament should not be taken to have authorized the use of

procedures and equipment without, at the same time, supplying the

police with the appropriate means and authority to carry them out.

20. Estey J, with whom Beetz, McIntyre and Lamer JJ concurred,

concluded a lengthy examination of the law in this way ((51) ibid. at

527; see also Dalia v. United States[1979] USSC 69; (1979) 441 US 238.):

" When seeking the proper interpretation of these

provisions one should ask if Parliament must be taken as

intending to give an authority to the investigating forces

which could not be put to use. The invocation of powers

granted under Pt IV.1 (of the Code) in aid of crime

detection serves no purpose if the authorization granted

relates only to isolated pieces of equipment without any

direction or authorization that it be employed in

association with authorized devices for interception either

by wire-tapping or for electronic or acoustic surveillance.

It is one thing to leave too much to the discretion of the

investigative agency but quite another to stultify the

whole undertaking."

21. On the other hand Dickson J, with whom Chouinard J concurred,

dissented with these words ((52) ibid. at 488; see also the dissenting

view of Stevens J (with whom Brennan and Marshall JJ agreed) in Dalia

v. United States (1979) 441 US esp. at 266 where his Honour said, "it

is most unrealistic to assume that Congress granted such broad and

controversial authority to the Executive without making its

intention to do so unmistakably plain".):

"For the reasons I have already given in the Wiretap

Reference, it is my view that Parliament did not intend ...

to authorize the police to trespass to install a listening

device. Accordingly, an authorization does not implicitly

carry with it a right of entry to private premises. And

equally, a judge does not possess any authority to include

a right of entry as a term of an authorization."

22. Dickson J's allusion to the Wiretap Reference was to his

judgment in Reference re an Application for an Authorization ((53)

(1984) 14 DLR (4th) 546.). It is not possible to do justice to his

Lordship's judgment in a few words but he stressed the "inviolability

of a person's property (which) has from earliest times been vigorously

asserted and resolutely defended by the courts" ((54) ibid. at 555.)

and said that "(t)here has been no material presented to this Court to

support the suggestion that oral communications cannot be effectively

intercepted without the power to trespass to install listening devices"

((55) ibid. at 557.).

23. While the basis underlying the decision in Lyons is relevant to

the present case, the Supreme Court of Canada was, as it expressly

acknowledged, faced with a question of statutory construction, in

particular the meaning to be attached to "interception". The language

of the Act is markedly different and there is a real difficulty in

seeking to transpose the meaning attached by a court to one set of

words to another set of words the meaning of which is to be determined

by a different court ((56) See National Mutual Life Association of

Australasia Ltd. v. Godrich[1909] HCA 93; (1910) 10 CLR 1 at 13.). Rather than a

term such as "interception", the Act contains a prohibition on the use

of a listening device except where one of the identified exclusions

operates. Relevantly, that means a written authorization by a Supreme

Court judge. An inference that an authorization of itself carries

permission to go on to private premises is one that cannot readily be

drawn. To say this is not to lose sight of the fact that the Act is

directed to invading privacy as well as protecting it ((57) cf. Lyons

(1984) 14 DLR (4th) at 497 per Estey J). But the structure of Pt IV

is to protect privacy of conversations except where expressly provided.

Any suggested parallel between inferences to be made from

24. I find persuasive the observations of Dickson J mentioned

earlier and also this passage from his Lordship's judgment ((58)

Reference Re An Application for an Authorization (1984) 14 DLR (4th) at

554.):

" The appellants' claim that police officers are

permitted to enter private premises to install

listening devices is broad and indiscriminate. It is

worthwhile to examine briefly the consequence of accepting

that such a sweeping rights exists. The power so granted

would go much further than authorizing surreptitious entry

and would allow the police to act openly and utilize

whatever means to achieve entry they found most expedient.

Thus, access could be obtained by forcing doors or windows

or through trickery or coercion. Further, if police acting

under Part IV.1 are implicitly authorized to make entry,

s. 25 of the Code would permit them to effect such entry

by overcoming force a property owner is normally entitled

to assert, to prevent anyone, including the police, from

entering the premises without permission. If the right

exists, it must exist in respect of premises of persons

who, at the time the entry is made, are innocent of any

offence as well as those who have more than passing

acquaintance with the criminal process."

Using a listening device



25. However, the respondent further argued that the prohibition in

s.43(1) of the Act is a prohibition against using a listening device,

that entry on to premises and the installation of a listening device

is not using a listening device, hence there was no contravention

of s.43(1) in these activities. The definition of listening device

appears earlier in this judgment. Drawing on the definition,

the respondent submitted that activities not falling within the

description "overhear, record, monitor or listen to" cannot constitute

using a listening device and so are outside the terms of s.43(1).

Such activities, even if unlawful, do not detract from an approval, so

the argument ran, for the approval is to "use", that is "to overhear,

record, monitor or listen to a private conversation".

26. Whatever force that argument might have in terms of the proper

construction of the Act, it cannot succeed here because the approval

carried with it in express terms an authority "to enter and remain

upon the said premises for the purpose of installing, maintaining,

servicing and retrieving the said listening device or devices". This

authority to enter and remain upon the premises cannot be severed

from the approval. Indeed, installation of the listening device was

mentioned within the principle paragraph of the approval and also

expressed to be a condition of use. Clearly it was regarded as an

essential element of the approval and if it fails so does the

approval.

Authority to use



27. There is however what appears to be a variation to the arguments

of the respondent which have been discussed thus far. As I understand

it, the starting point is that par.(c)(i) of s.43(2) excludes from

the operation of s.43(1) a conversation overheard, recorded, monitored

or listened to by a member of the police force authorized to use a

listening device in accordance with an approval.

28. The argument accepts that the approval is not itself concerned

with the means employed to make a listening device effective but

contends that an authority to use a listening device necessarily

carries authority to install the device where a conversation may be

overheard, recorded, monitored or listened to. In other words, when

s.43(2)(c)(i) speaks of "authorized ... to use" the expression denotes

authority to overhear, record, monitor and listen to a private

conversation. If that can only be done by going on to premises, that

activity is necessarily embraced by the expression.

29. I have no quarrel with the initial premise in this argument.

But the second is suspect and the conclusion is unsustainable. The

prohibition in s.43(1) is in absolute terms. The exclusions in

sub-s.(2) must be construed against this background and authority

to use cannot be read as an authority to enter upon premises

surreptitiously in order to use, unless the language of sub-s.(2)(c)

says so in clear terms. It does not do so.

Member of the police force acting in the performance of duty



30. Because of the conclusions reached thus far, it is strictly

unnecessary to consider the appellant's argument that the police

officers had acted other than in the performance of their duty.

Nonetheless, it is desirable to say something about the matter. The

argument was that even had the approval been valid and s.43(1) nothing

to say as to illegal entry, the acts of the various police officers

in overhearing, recording, monitoring and listening to private

conversations of the appellant involved trespass such that each police

officer was acting other than "in the performance of his duty" and,

therefore, in contravention of s.43(1). The trespasses complained

of were the continuing presence of the listening device and the

abstraction of electricity.

31. The requirement "a member of the police force acting in the

performance of his duty" has two aspects. The first is that the

listening device be used by a member of the police force. The second

is that it be used by that member in the performance of his duty. The

first is concerned with characterization, the second with function.

32. The concept of performance of duty was expressed in the following

way by Dixon CJ in Canadian Pacific Tobacco Co. Ltd. v.

Stapleton ((59)[1952] HCA 32; (1952) 86 CLR 1 at 6.):

"The word 'duty' there is not, I think, used in a sense that

is confined to a legal obligation, but really would be

better represented by the word 'function'. The exception

governs all that is incidental to the carrying out of what

is commonly called 'the duties of an officer's employment';

that is to say, the functions and proper actions which his

employment authorizes."

33. It was no part of the officers' duty to trespass upon premises

or to make use of Cosco Holdings' electricity. In Halliday v.

Nevill ((60)[1984] HCA 80; (1984) 155 CLR 1; see also Morris v. Beardmore (1981) AC

446.) Brennan J commented ((61) ibid. at 10. (His Honour dissented

as to whether the police officer in that case had a licence to enter

premises but all members of the Court accepted that such a licence was

necessary.)):

"A police officer who enters or remains on private property

without the leave and licence of the person in possession

or entitled to possession commits a trespass and acts

outside the course of his duty unless his entering or

remaining on the premises is authorized or excused by law."

34. Nevertheless, if the police officers used the listening device

in the honest and reasonable belief that their action was validly

authorized by Carter J's approval, they may have obtained the benefit

of s.22 of the Criminal Code which declares a person to be not

criminally responsible for an act done by him with respect to any

property in the exercise of an honest claim of right and without

intention to defraud ((62) See Shaw v. Coco (1991) 102 ALR 75 at 85- 86

per McPherson S.PJ). But this does not resolve the issue as to

whether the police officers were acting in the performance of their

duty as required by s.43(2)(c). The respondent argued that,

notwithstanding the decision in Halliday v. Nevill, the trespasses of

the listening device's presence and the abstraction of electricity were

so minor as not to detract from the performance of duty. Although this

argument may have some force in relation to the presence of the

listening device, it is difficult to conceive that the abstraction of

electricity over a period of almost 200 hours could amount to anything

other than a substantial trespass. However, as I have said, it is not

necessary to decide the matter as in my view the approval was wholly

invalid.

The meaning of police force



35. A number of arguments were mounted as to the meaning of the term

"member of the police force" and the operation of theAustralian

Federal Police Act 1979 (Cth). The threshold question is whether the

Federal Police officers involved in the surveillance of the appellant

were members of the police force in terms of s.43(2)(c)(i) of the Act.

36. The Act contains no definition of "member of the police force".

Buts.35 of theActs Interpretation Act 1954 (Q.) reads:

"In every Act, unless the contrary intention appears -

(a) References to any officer or office shall be construed

as references to such officer or office in and for this

State;

..."

37. Furthermore, as the trial judge de Jersey J observed, the

immediate impression on reading the Act is that "police force" is a

reference only to the Queensland police force. The impression derives

very much from the reference in s.43 to particular officers such as

the Commissioner of Police, an Assistant Commissioner of Police and

officers above the rank of Inspector. In each case the reference is

clearly to members of the Queensland police force, especially when it

is seen that the Commissioner of Police must inform the Registrar of

Commercial Acts, a State officer, of authorizations granted ((63)

s.43(5) of the Act.). The impression is strengthened further when it

is seen that s.26(1)(a) of the Act, dealing with private inquiry

agents, makes specific reference to "any member of the Commonwealth

Police Force or of the police force of this State or any other State or

a Territory of the Commonwealth or any part of Her Majesty's

Dominions".

Detective Inspector Scanlan's authority



38. A further question arises out of the preceding paragraph of

these reasons. It is this. While the Federal Police officers were

not members of the police force, Det. Insp. Scanlan certainly was.

Carter J's approval for the use of a listening device was an approval

directed to Det. Insp. Scanlan "by himself or by means of any other

person engaged in or, assisting the investigation of the said matter".

The respondent contended that when the approval is read with

Commissioner Redmond's authority to Det. Insp. Scanlan "in the use of

listening devices under and in accordance with (the) approval", those

nominated by Det. Insp. Scanlan to assist him were necessarily

authorized in writing to use a listening device. The approval, it was

said, contemplated the very thing that happened, namely the use of a

listening device by those engaged in the investigation.

39. The argument has a certain attraction but it breaks down when

regard is had to the language of s.43(2)(c)(i). There must be use

of a listening device by a member of the police force authorized in

writing by the Commissioner (or other senior officer mentioned) of

that member. That did not occur here because the officers nominated

by Det. Insp. Scanlan were not members of the police force.

Australian Federal Police Act

40. The respondent called upons.9(2) of theAustralian Federal

Police Act 1979 (Cth) which reads:

" Where any provisions of a law of a State apply in

relation to offences against the laws of the Commonwealth

or of a Territory, those provisions so apply as if:

(a) any reference in those provisions to a constable or

to an officer of police included a reference to a

member; and

(b) any reference in those provisions to an officer of

police of a particular rank included a reference to

a member holding the rank that is, or is declared

by the regulations to be, the equivalent of that

rank."

41. Section 43(2) of the Act contains references consistent with

pars (a) and (b) ofs.9(2) of theAustralian Federal Police Act. The

question however is whether any provision of a law of a State applies

in relation to offences against the laws of the Commonwealth.

42. De Jersey J held thats.9(2) was applicable for the following

reasons. Federal Police officers are subject to the prohibition in

s.43(1) of the Act. Therefore, in the detection of offences under

Commonwealth law committed in Queensland they are denied the use of

listening devices except in accordance with s.43(2). The facility for

the granting of approval by a judge is directed to the detection of

offences committed in Queensland, whether under State or Commonwealth

laws. In consequence, the opening words of s.9(2) apply and the

necessary transposition of State police officers to Federal Police

officers may be made.

43. While de Jersey J's conclusion is correct, it does not assist

the respondent unless Carter J's approval authorized unlawful entry

on to the premises of Coco Holdings. For the reasons already given,

it did not.

44. Before the Court of Criminal Appeal the respondent conceded that

s.12 of theAustralian Federal Police Act was not applicable. Before

this Court the respondent sought to withdraw that concession though it

did not press strongly a case for the application ofs.12.Section 12

reads:

" A member or staff member is not required under, or by

reason of, a law of a State or Territory:

(a) to obtain or have a licence or permission for doing

any act or thing in the exercise of his powers or

the performance of his duties as a member or staff

member; or

..."

45. The obstacle to applyings.12 in the present case is that

authority to use the listening device emanated from Det.

Insp. Scanlan, albeit with the approval of Carter J And Det.

Insp. Scanlan was a member of the Queensland police force; he was

not a "member" within the meaning of the Australian Federal Police

Act ((64) s.4(1).). If it is sought to apply s.12 to the Federal

Police officers in question, the removal of a need to have a licence

or permission does not avail them for they are faced with the blanket

prohibition in s.43(1) of the Act.

Conclusion



46. In summary then, none of the respondent's arguments warrants a

conclusion that the approval of Carter J brought the actions of the

various police officers involved in the surveillance of the factory

premises of Cosco Holdings within s.43(2)(c)(i) or that they otherwise

escape the prohibition against the use of a listening device found in

s.43(1). The evidence of the appellant's private conversations was

obtained by the use of a listening device in contravention of s.43(1)

of the Act and was therefore inadmissible against the appellant.

47. It follows that the appeal to this Court must be allowed. It is

unnecessary therefore to deal with the application for special leave

to appeal based on Bunning v. Cross. The appellant's notice of appeal

seeks an order that the judgment and orders of the Court of Appeal be

set aside and that, in lieu thereof, "the appeal to that Court against

conviction be allowed". In view of the concession made by the

respondent that, in the absence of evidence obtained by use of the

listening device, the appellant's conviction cannot be sustained, the

conviction must be quashed and a new trial ordered.