Hilton v Wells

Citation: 157 CLR 57 15 A Crim R 394; 59 ALJR 396; 58 ALR 245; 1985 WL 513009

Court: High Court of Australia (Approx. 33 pages)

Judges: Gibbs CJ, Mason, Wilson, Deane, Dawson JJ

Judgement Date: 7, 8, 14 March 1985

A Chapter III judge may be appointed to act in an executive role as a “persona designata” – i.e., a designated person. The role must not undermine public confidence in the independence of the judiciary.

In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 the Full Federal Court held that it was OK to appoint federal judges as a designated person as President or member of the Administrative Affairs Tribunal or Aboriginal Land Commissioners. These functions don’t undermine perceptions of judicial independence as the judges are performing a judge-like role, and are separate from the executive (even in an advisory role).

In Hilton v Wells the HCA held that vesting power in federal judges to approve electronic surveillance warrants was not incompatible with their judicial role.

The Telecommunications (Interception) Act 1979 (Cth), s 7 (1) prohibits intercepting telecommunication transmissions (i.e., wiretaps). However s 20 permits a federal court judge to issue a warrant for a wiretap if law enforcement authorities believe it will allow them to detect evidence of narcotics trafficking. Held: Gibbs CJ, Wilson and Dawson JJ, Mason and Deane JJ not deciding. , that s 20 was a valid enactment of Parliament.

In short the majority found that judges considering whether to issue warrants were designated persons acting in a judge-like role on behalf of the executive. The power was vested in the designated person, not the court.

“There is nothing in the Constitution which precludes a justice of the High Court or a judge of this or any other court created by the Parliament under Ch. III of the Constitution from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Ch. III court functions which are antithetical to the exercise of judicial power. Indeed, it does not involve the conferring of any functions at all on such a court."