University of New South Wales Faculty of Law Research Series
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of New South Wales Faculty of Law Research Series |
|
Last Updated: 26 November 2011
UNFINISHED MATTERS: THE FEDERAL AND STATE SUPREME COURTS ON CONSTITUTIONAL
LAW: THE 2003 TERM
THE HON JUSTICE RUTH McCOLL
AO, Judge, Court of Appeal, Supreme Court of New South Wales
Citation
This paper was presented at 2004 Constitutional
Law Conference, Sydney,20 February 2004 (held by Gilbert + Tobin Centre of
Public
Law, UNSW Faculty of Law). This paper may also be referenced as [2011]
UNSWLRS 45.
Abstract
My immediate predecessor in this role was Justice
French whose address on the topic of the Federal and State Courts on
Constitutional
Law dealing with the 2002 Term was gloomily entitled “Dark
Matter in the Constitutional Universe”. By this, his Honour
intended to
refer to the fact that, to use his Honour’s expression, “in the
constitutional cosmos it is the jurisprudence
of the High Court that illuminates
or bedazzles us” but “the constitutional decisions of the Federal
and State Courts
tend to fall into the category of dark matter or, perhaps at
best brown dwarfs”.
I do not share his Honour’s gloom.
First, not all Federal or State Court decisions dealing with the
Constitution cower under the damoclean sword of a successful special
leave application or a s 40 removal. Many clearly dazzle in their own right
(and perhaps light). Secondly, while some such cases do end up in the High
Court
so that, to that extent, the Federal and State Court decisions might be
seen as “unfinished matters”, no-one doubts the
utility of the
intermediate decisions which, to quote Justice French again, “will settle
the factual aspects of the case, dispose
of lesser issues and sharpen the focus
of interpretational choices that have to be made.”
Indeed French J
shook off his gloom to a certain extent by asking rhetorically “where
would we be without” such decisions.
As he said, “most of the
important constitutional law of Australia originates in proceedings in the lower
courts.”
This is demonstrated by the range of cases decided by
the Federal and State courts in the 2003 term.
Overview of 2003 Constitutional Cases
In contrast to the meagre pickings Sackville J
has identified from the High Court’s 2003 Term, I have a veritable
cornucopia
from which to choose to regale you with the constitutional antics of
the Federal and State courts in 2003!
I identified sixty-two judgments
decided by the Federal Court and State Supreme Courts which might be said to
involve the Constitution. Some involved it less than others. Some
involved it in a relatively indirect sense and some touched but very lightly
upon constitutional
concepts. I do not intend to deal in detail with all of
these cases. However, I have annexed to this paper two schedules: one which
identifies the cases by Court and the other which identifies them by reference
to the section of the Constitution with which they deal, even if only in
passing. There is inevitable duplication in the latter schedule to the extent
that some cases
involve more than one section of the
Constitution.[1]
Litigation
progressed so rapidly in 2003 that some of the cases determined at the Federal
and State Supreme Court levels and/or their
critical themes have been either
argued and reserved or, indeed, already determined by the High Court during
2003. In addition,
some of the major cases having been the subject of grants of
special leave were argued in the first ten days or so of what, I suppose,
Professor Williams would call the 2004 Term.
The analysis of the 2003
cases reveals that decisions touching upon the Constitution were
delivered in all jurisdictions save for the Supreme Courts of the Australian
Capital Territory, the Northern Territory and Tasmania.
Civil Rights
I start with a general observation. The Constitution, of course, “does not contain a “charter of citizens’ rights.”[2] That does not mean that constitutional cases in Australia are not concerned with citizens’ rights.
In his paper Justice Sackville contrasts the United States and Australian Constitutional systems by virtue of the fact that the United States Constitution incorporates a Bill of Rights whereas the Australian Constitution does not. This, in turn, according to his Honour (and I do not doubt the indubitable correctness of his proposition) means that “constitutional norms in the United States pervade many areas of State and federal law.”
While the penetration of “constitutional norms” may not be as pervasive in Australia, nevertheless, to my observation in the 2003 Term, the constitutional issues which engaged Federal and State Supreme Courts concerned civil rights as fundamental as those to which Justice Sackville has referred this morning in relation to the United States Supreme Court and, in many cases equally as controversial.
A brief outline of the key issues dealt with in 2003 in constitutional cases demonstrates the significance of these cases for all members of the community. I will briefly identify the core issues dealt with then attempt in the time available to consider several of the decisions more closely.
Detention without adjudication of guilt
A major issue in 2003 has been the validity of both Commonwealth and State legislation purporting to detain or imprison people without the adjudication of guilt of a crime.
At a Federal level the Federal Court both at first instance (NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224) and in the Full Court (Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70, 197 ALR 241) has wrestled with the question whether s 196 of the Migration Act 1958 (Cth) was invalid as being beyond the legislative power of the Commonwealth if it was able to be construed as justifying mandatory detention of an alien in circumstances where that detention was not reasonably necessary for the purpose of the alien’s removal from Australia.
The issue of mandatory detention also arose in the Family Court in B and B and Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451; (2003) 199 ALR 604 – a case concerning the jurisdiction of that Court to release children held in immigration detention.
At State level Chapter III issues (judicial power) arose in the context of the constitutional validity of the Dangerous Prisoners (Sexual Offenders) Act 2000 (Queensland) in A-G(Qld) v Fardon [2003] QCA 416. That case squarely confronted, and distinguished, Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.
The question of judicial power arose again, in Queensland, in Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249; [2004] 1 Qd R 40 which considered the validity of a statutory provision requiring the Supreme Court hearing an application for an order restraining a person from dealing with property to do so in the absence of any party other than, in effect, the applicant. In that case Kable was applied to strike down the legislation.
Implied Freedom of Speech and Association
The implied freedom of speech and association has been considered in two decisions which could assume great significance in an election year.
Mulholland v Australian Electoral Commission [2003] FCAFC 91; (2003) 198 ALR 278 concerns the provisions of the Commonwealth Electoral Act dealing with registration of political parties. In that case the Full Court of the Federal Court held that the implied freedom of communication was not infringed by provisions of the Commonwealth Electoral Act 1918 (Cth) which required the Democratic Labour Party to provide a list of at least 500 of its members for the purposes of the Act (s 123(1), the “500 persons rule”) and a provision (s 126(2A)(a)) which provided that none of those 500 persons could be relied upon by another political party for purposes of qualifying for registration as a political party (the “no overlap rule”).
In Bennett v Human Rights & Equal Opportunity Commission [2003] FCA 1343 Finn J applied the implied freedom of communication to declare a Commonwealth regulation which prevented public servants disclosing information acquired in the course of their duties to be invalid. This was a provision which, according to his Honour had been a “threatening presence for Commonwealth Public Servants for over 100 years”.
The institution of marriage
The Attorney-General for the Commonwealth and
“Kevin and Jennifer” and Human Rights and Equal Opportunity
Commission [2003] FamCA 94; (2003) 172 FLR 300; [2003] FamCA 94; (2003) 30 Fam LR 1; [2003] FamCA 94; (2003) EOC 93-265; (2003) FLC 93-127
considered whether there could be a valid marriage between a woman and a
transsexual, born a female but who, by operation, was considered
by to be a
“man”. At first instance, Chisholm J decided that the question
whether a person was a man or a woman should
be determined at the time of
marriage not birth. The Full Court of the Family Court upheld his decision.
The Full Court considered
the meaning of the word “marriage” in s
51(xxi) of the Constitution and concluded that it would be
“inconsistent with the approach of the High Court to the interpretation of
other heads of Commonwealth
Power to place marriage in a special category,
frozen in time to 1901”. Accepting that a valid marriage for the purpose
of
the Marriage Act 1961 must be between a man and a woman, the Full
Court held that the words “man” and “woman” as used in
the Marriage Act should bear their contemporary meaning and that,
adopting that approach, “man” could include a post-operative
transsexual.
This decision has had international significance. In Re
Marriage and Michael J Kantaras v Linda Kantaras in the Circuit Court of
the Sixth Judicial Circuit in and for Pasco County, Florida, it was described as
“one of the most important
cases on transsexualism to come on the scene of
foreign jurisprudence.” It was quoted by the European Court of Human
Rights
with approval in holding that the United Kingdom had violated articles 8
and 12 of the European Convention on the Protection of Human
Rights and
Fundamental Freedoms with regard to transsexual people in the United Kingdom
particularly in the areas of marriage, social
security, employment and
pensions.[3] Just over a week ago, on
11 February 2004, the House of Lords approved the Gender Recognition Bill
which allows transsexuals to obtain new birth certificates and marry in their
adoptive genders.[4]
Just terms
There was an important decision delivered at the end of 2002 in Pauls Limited v Dwyer [2002] QCA 545; (2002) 33 ASCR 413 which deals with the power to acquire property on just terms (Constitution s 5 (xxxi)) in the context of takeover offers and the statutory control of share acquisition. It just slipped under French J’s gaze in his paper last year. It was followed in 2003 in Energex Ltd v Elkington & Ors [2003] QCA 430; (2003) 47 ACSR 442.
I turn then to a more
detailed consideration of some of the major decisions.
Detention without adjudication of guilt
Let me place the detention cases in context by
briefly recapitulating on two earlier High Court decisions touching upon
similar, some
might say identical, issues.
In Chu Kheng Lim v Minister
for Immigration, Local Government and Ethnic Affairs [1992] 176 CLR 1
(“Lim”) the High Court held that a statutory provision
conferring power on the Executive to detain an alien was valid if it was
properly
characterised as an incident of the constitutional power to exclude,
admit or deport aliens (s 51 (xix)).
Brennan, Deane and Dawson JJ, in
their joint judgment observed that, with some exceptions, Australian citizens
enjoyed in peace time
“a constitutional immunity from being imprisoned by
Commonwealth authority except pursuant to an order by a Court in the exercise
of
the judicial power of the
Commonwealth”.[5]
In
the view of the majority in Lim (Brennan, Deane and Dawson
JJ)[6] the legislative power conferred
by s 51(xix) of the Constitution “encompasses the conferral upon
the Executive of authority to detain or to direct the detention of, an alien in
custody for
the purposes of expulsion or deportation.”
The judgments in Lim recognised that there could be exceptional
categories of cases in which the involuntary detention of a citizen in custody
by the State
would not be invalidated. Those cases included arrest and
detention in custody of a person accused of a crime awaiting trial, detention
of
persons suffering mental illness or infectious
diseases.[7]
Brennan, Deane
and Dawson JJ (with whom Gaudron J agreed on this point) also held that s 54R of
the Migration Act 1958, which declared that a Court was not to order the
release from custody of a designated person, was invalid. In their
Honours’
view the section purported to prevent a Court from ordering the
release from custody of a person who was being held unlawfully.
After referring
to s 75(iii) of the Constitution (which gives the High Court original
jurisdiction in all matters in which the Commonwealth, or a person being sued on
behalf of the
Commonwealth, is a party) and to s 75(vi) (which gives the High
Court jurisdiction in all matters in which mandamus, prohibition or an
injunction is sought against an officer
of the Commonwealth) their Honours
said:
“A law of the Parliament which purports to direct, in unqualified terms, that no Court, including this Court, shall order the release from custody of a person whom the Executive of the Commonwealth has imprisoned purports to derogate from that direct vesting of judicial power and to remove ultra vires acts of the Executive from the control of this Court. Such a law manifestly exceeds the legislative powers of the Commonwealth and is invalid.”[8]
Mason CJ, Toohey and McHugh JJ held that s 54R could be read down so that it
only prevented a Court ordering the release of a person
lawfully held in
custody.[9]
In Kable v
Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 the High
Court held the New South Wales Community Protection Act (NSW) 1994 to be
invalid as incompatible with Chapter III of the Constitution.
The Community Protection Act was assented to shortly before Mr
Kable was to be released from prison. The Act made no bones about its purpose.
Section 3(1) provided
that its object was “to protect the community by
providing for the preventive detention (by order of the Supreme Court made
on
the application of the Director of Public Prosecutions) of Gregory Wayne
Kable ...”.
Section 5(1) provided that on an application made
in accordance with the Act the Supreme Court of New South Wales may order that a
specified person be detained in prison for a specified period if satisfied on
reasonable grounds that the person was more likely
than not to commit a serious
act of violence and that it was appropriate for the protection of a particular
person or persons or
the community generally that the person be held in custody.
Section 5(2) specified that the maximum period for a detention order
was six
months.
The High Court (Toohey, Gaudron, McHugh and Gummow JJ; Brennan CJ and
Dawson J dissenting) in individual judgments held that the Act
was invalid in
essence because the exercise of jurisdiction under the Act was incompatible with
the integrity, independence and impartiality
of the Supreme Court as a court
invested with Federal jurisdiction under Chapter III.
It was critical to
the majority’s conclusion that the Act enabled the Supreme Court to order
the imprisonment of a person although
that person had not been adjudged guilty
of any criminal offence. This was seen as conferring non-judicial functions on
a state,
albeit, a Chapter III court. Secondly, the majority was of the view
that State Parliaments could not confer non-judicial functions
on State courts
which would undermine public confidence in the independence and impartiality of
those courts. The majority viewed
the Act as having this effect for a variety
of reasons which largely turned on the fact that the Act applied to only one
person and
the view that the procedures for making detention orders paid lip
service to ordinary judicial process.
Toohey J distinguished Lim
on the basis that under the Community Protection Act
“preventative detention ... is an end in itself”. Further, in his
Honour’s view, the Community Protection Act did not “fall
within the ‘exceptional cases’ mentioned in Lim, directly or
by analogy.”
Gaudron J said:
“The power purportedly conferred by s 5(1) of the (Community Protection Act) requires the making of an order, if the conditions specified in s 5(1) are satisfied, depriving an individual of his liberty, not because he has breached any law, whether civil or criminal, but because an opinion is formed, on the basis of material which does not necessarily constitute evidence admissible in legal proceedings, that ‘he is more likely than not’ (s 5(1)(a)) to breach a law by committing a serious act of violence as defined in s 4 of the Act. That is the antithesis of the judicial process, one of the central purposes of which is ... to protect ‘the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained’.”[10]
McHugh J accepted that the Parliament of New South Wales had the constitutional power to pass legislation providing for the imprisonment of a particular individual whether the machinery for the imprisonment be the legislation itself, the order of a Minister, a public servant or a Tribunal.[11] He also did not doubt the authority of the State to make general laws for preventative detention when those laws operated in accordance with the ordinary judicial processes of the State Courts. What, however, in his Honour’s view, the legislature could not do consistently with Chapter III of the Constitution, was invoke the authority of the Supreme Court to make orders against Mr Kable by the methods the Act authorised. That was because, in his Honour’s view, “the Act and its procedures compromised the institutional impartiality of the Supreme Court.”
McHugh J held that the Act expressly removed the ordinary protections inherent in the judicial process by stating that its object was the preventative detention of Mr Kable, by removing the need to prove guilt beyond reasonable doubt, by providing for proof by materials that may not satisfy the rules of evidence and by declaring the proceedings to be civil proceedings although the Court was not asked to determine the existing rights and liabilities of any party or parties.[12] Thus, his Honour said, “it is not going too far to say that proceedings under the Act bear very little resemblance to the ordinary processes and proceedings of the Supreme Court” so that “the Act is ... far removed from the ordinary incidents of the judicial process.”[13] He pointed out:
“Instead of a trial where the Crown is required to prove beyond reasonable doubt that the accused is guilty of a crime on evidence admitted in accordance with the rules of evidence, the Supreme Court is asked to speculate on the balance of probabilities, it is more likely or not that the appellant will commit a serious act of violence.”[14]
Gummow J pointed out that the fact that the Act was directed to only one individual was not, of itself, “a badge of invalidity”.[15] Of greater significance in his Honour’s view was the fact that the penalty that the Act meted out was “not inflicted upon, and by reason of, conviction by the Supreme Court of any charge of contravention of the criminal law.”
His Honour regarded as “striking features of the legislation” the fact that there was “no determination of guilt solely by application of the law to past events being the facts as found”[16]; “whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon an adjudgment by the Court of criminal guilt.”[17] In his Honour’s view such an authority could not be conferred on a State Court exercising Federal jurisdiction as it was “repugnant to the judicial process in a fundamental degree.”
Attorney General (Queensland) v Fardon [2003] QCA 416
The issues raised in both Lim and
Kable came before the Queensland Court of Appeal in Attorney-General
(Queensland) v Fardon [2003] QCA 416 which considered whether the enactment
of the Dangerous Prisoners (Sexual Offenders) Act 2000 (Qld) was within
the legislative competence of the Queensland Parliament. The appellant, the
subject of orders made under the
Act, contended that it was not, substantially
in reliance on Kable.
Section 13(5)(a) of Division 3 of the Dangerous Prisoners (Sexual
Offenders) Act authorised the Supreme Court if satisfied that a prisoner was
a “serious danger to the community in the absence of a Division
3
order”, to order either that a prisoner be detained in custody for an
indefinite term for control, care or treatment (a
“continuing detention
order”, s 13(5)(a)) or that the prisoner be released from custody subject
to conditions the Court
considered appropriate (a “supervision
order”, s 13(5)(b)).
Like the Act considered in Kable, the
Queensland Act provided that the Bail Act did not apply to a person the
subject of a detention order.
The appellant had been convicted in 1989
of rape, sodomy and assault occasioning bodily harm and sentenced to fourteen
years imprisonment.
These offences were committed 20 days after his release on
parole after serving 8 years of a 13 year sentence for a previous conviction
of
rape.
That fourteen year term expired on 29 June 2003. The Act
commenced on 6 June 2003, the date of assent - 3 weeks before his sentence
expired. On 27 June 2003 a Judge ordered that the appellant be detained in
custody until 4.00 pm on 4 August 2003 (s 8(2)(b)), that
he undergo examinations
by two nominated psychiatrists (s 8(2)(a)) and appointed 31 July 2003 as the
date for the hearing of an application
for a Division 3 Order (s 8(1)(a)).
Mr Fardon’s challenge to the validity of the Act failed at first
instance because the trial judge held that the legislation
was distinguishable
from that considered in Kable, partly because it was of general rather
than particular application. He also failed in the Court of Appeal with Chief
Justice de
Jersey and Williams JA upholding the trial judge’s conclusion
and the President of the Court, Justice McMurdo, dissenting.
In the Court
of Appeal the appellant submitted that the Act was invalid because among other
reasons it sought “to divorce an
order of imprisonment from a finding of
criminal guilt and because it amounted to legislative ‘interference with
the finality
of an exercise of judicial power’, insofar as it effectively
[operated] to lengthen, retrospectively, the term of imprisonment
imposed
following conviction.”
[18]
The Attorney-General
submitted that the Court’s obligation under the Act was to apply what
might be characterised as “normal
judicial process” and “that
to suggest orders made under these provisions retrospectively lengthen the
imprisonment originally
imposed ignores the reality that following the
expiration of that term of imprisonment, the appellant [would] have been newly
detained,
‘under protective legislation’.” The Chief Justice
of Queensland accepted those submissions.
[19]
De Jersey CJ also
accepted the Attorney-General’s submission that the "imposition of
non-punitive, involuntary detention protective
of the community [was] not
incompatible with the exercise of judicial
power".[20] He held that the
court's obligation under these provisions was “to apply what might be
characterised as ‘normal judicial
process’ ”. In his
Honour’s view, to suggest orders made under these provisions
retrospectively lengthened the
imprisonment originally imposed, ignored the
reality that “following the expiration of that term of imprisonment, the
appellant
will have been newly detained, ‘under protective
legislation’ ".
De Jersey CJ also accepted the primary judge’s
conclusion that the New South Wales legislation and, ergo Kable, were
distinguishable because the Queensland Act was of general application, conferred
general discretionary power, was informed by
criterion directed to community
protection rather than punishment, and because the court’s processes were
subject to the rules
of evidence.
[21]
De Jersey CJ also
distinguished the Court of Appeal’s decision in Re Criminal Proceeds
Confiscation Act 2002 (Queensland) [2003] QCA 249 in which s 30 of the
Criminal Proceeds Confiscation Act 2002 was held to be invalid as being
beyond the power of the Queensland Parliament. I deal with this case later in
this paper.
His Honour distinguished Re Criminal Proceeds Confiscation Act
2002 (Queensland) on the basis that the provisions of the Criminal
Proceeds Confiscation Act 2002 which was struck down as invalid had
“effectively commanded the Court to hear certain applications for orders
affecting
property rights in the absence of interested
parties.”[22]
The appellant’s submissions focussed, as one might have expected following Kable, on the contention that a court cannot legitimately be required to order detention unless it is consequent upon a finding of guilt of a criminal offence. De Jersey CJ said that that submission gained “basic support from some of the statements made in Kable, for example this statement of Gummow J”:
"I have referred to the striking features of this legislation. They must be considered together. But the most significant of them is that, whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly, in my view, such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a State court exercising federal jurisdiction. Moreover, not only is such an authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree."[23]
In this respect, de Jersey CJ said:
“[27] In an historical sense, a detention order made under s 8 or s 13 is consequent upon conviction, because it is the earlier conviction for a "serious sexual offence" which places the particular prisoner into the category of prisoner to which the Act applies. It may also be acknowledged that a prisoner being sentenced for what amounts, under the Act, to a "serious sexual offence", would have to be taken to appreciate the possible application of the Act come the expiration of the term of imprisonment imposed.”[24]
The Attorney-General had not sought to support the Act by
endeavouring to link the orders made to the finding of guilt involved in
the
conviction. Rather he sought to place the legislation into the category of an
exceptional case in which the court might order
detention other than in direct
immediate consequence of a finding of guilt.
In dealing with this
argument, De Jersey CJ characterised the purpose of orders made under the Act as
being “plainly not punishment,
but community
protection.”[25] This was so
even though “this community protection is to be achieved through the
denial of personal liberty”. His
Honour referred to the exceptional
category of cases Lim identified as justifying involuntary
detention.[26] He extracted a
passage in McHugh J’s judgment in Lim in which his Honour said:
“Certainly, Div. 4B deprives designated persons of the right to seek their release from custody. But they have been deprived of that right not because the Parliament wishes to punish them but because it wishes to achieve the non-punitive object of ensuring that aliens who have no entry permit or visa are kept under supervision and control until their claims for refugee status or entry are determined.” [27]
In de Jersey CJ’s view the orders which might be made under the Act could be seen as within a similar category of exception because the object of a detention order or a supervision order was “not punishment, but community protection.”[28] In his Honour’s view the category of persons who might be the subject of an involuntary detention order was not closed and should be seen to include “community protection against violent criminals who, although sane, would, if at liberty, constitute a serious danger to the community.”[29]
Having referred[30] to Kruger v Commonwealth [1997] HCA 27; (1996-7) 190 CLR 1, where Gummow J said :
"A power of detention which is punitive in character and not consequent upon adjudgment of criminal guilt by a court cannot be conferred upon the Executive by a law of the Commonwealth. The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective. The categories of non-punitive, involuntary detention are not closed."[31]
De Jersey CJ summarised his views:
“The Act contemplates involuntary detention which should be characterised as non-punitive. The detachment of the making of an order for such detention from the original adjudication of criminal guilt does not warrant the conclusion the relevant legislation is beyond legislative power. That is because the situation contemplated by this legislation falls naturally into the exceptional category recognized in Lim and Kruger. That category is not closed, and just as it extends to the protection of the community from the mentally ill, there is no reason why, by analogy, it should not also be seen to include community protection against violent criminals who, although sane, would, if at liberty, constitute a serious danger to the community. The process established by the Act sufficiently conforms to normal judicial processes. The legislation should accordingly be regarded as constitutionally valid.”[32]
Williams JA agreed with the Chief Justice’s reasons for dismissing the appeal but added reasons of his own. In his Honour’s view the Queensland Act was “clearly distinguishable from the Act; [as] the New South Wales legislation ...applied only to a named prisoner and effectively directed the court to make an order detaining that person in custody.”[33]
In his view the Queensland Act provided for non-punitive involuntary
detention of persons where the Court was satisfied that the prisoner
would be a
serious danger to the community in the absence of a detention order, was
designed to protect the community and afford
an opportunity to provide further
care and treatment to a person found by the Court to be a serious danger to the
community if not
detained thus bringing it within the exceptional categories
referred to in Lim as well as Kruger v The Commonwealth [1997] HCA 27; (1997) 190
CLR 1 at 161 – 162 per Gummow J and Veen v The Queen [No 2] [1988] HCA 14; (1998)
164 CLR 465 at 496 per Deane
J.[34]
Secondly, in dealing
with the submission that the Act was invalid because it authorised the making of
a detention order which was
not dependent upon the court determining criminal
guilt and therefore the making of such an order was not an incident of the
judicial
function of adjudging and punishing criminal guilt, Williams JA was
influenced by the fact that there was an historical link between
the
prisoner’s conviction of a serious sexual offence and the making of an
order pursuant to the Act.[35]
Finally, Williams JA distinguished Kable because the Queensland Act
provided for an unfettered judicial hearing to determine whether the prisoner in
question was a serious
danger to the community and then whether, in the exercise
of a judicial discretion, a continuing detention order or supervision order
or
indeed no order should be
made.[36]
McMurdo P
dissented. In her Honour’s view the Act was invalid. She viewed the
scheme instituted under the Act as unique in
Australia in that it made “a
prisoner who has been convicted and sentenced for an offence liable for an order
for further detention
imposed by a Supreme Court Judge, not because of any
further unlawful actions but because of the potential that the prisoner may
commit further unlawful
actions.”[37] Her Honour
observed that the Act required “a Judge of the Supreme Court ... to order
the detention of someone convicted and
sentenced for a criminal offence, who has
satisfied the penalty imposed at sentence, without any further determination of
criminal
guilty justifying the use of judicial
power”.[38]
Her Honour
recognised that the Queensland Act differed in many respects from the
legislation considered in
Kable[39] but, in her
Honour’s view, those differences were “cosmetic
changes”.[40] In her view the
legislative scheme under the Act was ‘the antithesis of the judicial
process’, which is to protect the
individual from the arbitrary
interference with rights other than in consequence of the fair and impartial
application of the law
to properly ascertain facts.” She held:
“Ordinary reasonable members of the public could well reasonably see the Act as making the Supreme Court of Queensland a party to, and responsible for, implementing the political decisions of the Executive Government that unpopular prisoners should be imprisoned beyond the expiry of their sentenced terms of imprisonment without the benefit of the ordinary processes of law. The powers sought to be given to the Supreme Court of Queensland under the Act compromise the integrity of this Court and of the judicial system effected by Ch III of the Constitution.” [41]
Her Honour
therefore concluded that sections 8 and 13 of the Act infringed the requirements
of Chapter III of the Constitution that the Supreme Court of Queensland
only exercise the judicial power of the Commonwealth consistently with the
doctrine of the separation
of
powers.[42]
There are some
features of the decision in Fardon which attract passing comment.
It appears
that on 6 November 2003 Justice White made a continuing detention order in
respect of Mr Fardon pursuant to which he was
detained in
custody.[43] Mr Fardon appealed
from that order to the Queensland Court of Appeal. In the meantime on 12
December 2003 the High Court (Gummow
and Kirby JJ) granted Mr Fardon leave to
appeal.[44]
And now a brief
retrospective. In R v Moffatt [1998] 2 VR 229, the Victorian Court of
Appeal constituted by Winneke, Hayne and Charles JJ, expressed doubt about
identifying the precise ratio
of Kable. Of these, clearly the most
significant for present purposes was Hayne JA (as he then was) who after
referring to the various views
of the majority said:
“But exactly what is the underlying principle is not clear. As I have said, the legislation under consideration in Kable was extraordinary: it was directed at one man; it required (or at the least contemplated) the confinement of that man in prison and did so not for what he had done but for what he might do. But by what principle is one to decide whether legislation is incompatible with Ch. III? Is its being novel sufficient? Is the perception that reasonable members of the public may have of it relevant? If so, what kind of perception is relevant?”[45]
Now
his Honour will have the opportunity to answer those questions.
Mandatory detention
I turn then to the “mandatory
detention” cases – to use a term coined by the Full Court of the
Federal Court last
year in the principal decision to which I will refer –
Minister for Immigration & Multicultural & Indigenous Affairs v Al
Masri [2003] FCAFC 70, 197 ALR 241.
In essence the issue in these
cases is whether the aliens power (s 51 (xix)) supports provisions in the
Migration Act 1958 permitting the Minister for Immigration and
Multicultural and Indigenous Affairs to continue to detain an unlawful
non-citizen who
has no entitlement to a visa but who has asked to be removed
from Australia when there is no real likelihood or prospect of that
person’s removal overseas in the reasonably foreseeable future.
I
will not dwell too long on this category for two reasons: first, the legal issue
is almost moot at Federal level – what might
loosely be called the Al
Masri principle has already been argued in the High Court and judgment is
reserved. Secondly, you will be hearing much about refugee issues
later today
in the session on “Detention and the Constitution” by speakers far
more qualified than I to do full justice to this important topic.
However as the subject is clearly within my remit and as the principle involved is of profound significance, let me take you to the critical points raised.
A number of 2003 decisions of the Federal Court have considered the issue of mandatory detention however the key 2003 decision was the decision of the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 197 ALR 241.
Like Fardon, Al Masri raised squarely the issues considered in Lim. The Full Court said the case posed the question “whether the Act authorises and requires the indefinite, and possibly even permanent administrative detention of ...a person”, an unlawful non-citizen under the Act who having been refused refugee status asked to be removed from Australia, when there is no real likelihood or prospect of that person’s removal overseas in the reasonably foreseeable future.[46] The Full Court answered that question with what I suggest can fairly be described as a resounding “no”.
Section 196(1) of the Migration Act 1958 (Cth) requires and authorises an unlawful non-citizen[47] first detained under the separate “arrest” provisions of s 189 to be kept in immigration detention until he or she is removed from Australia under ss 198 or 199, or deported under s 200 or granted a visa. The only provision of the Migration Act which deals with the release of a person from s 196 detention is s 198(1) which requires an officer to remove “as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed”: s 198(1); “remove” means remove from Australia: s 5(1) Migration Act 1958 (Cth).
The Full Court (Black CJ, Sundberg and Weinberg JJ) described the effect of s 196 as being to “provide for mandatory detention”, “because the legislation contains no provision authorising the release of a person on discretionary grounds”.[48]
The short facts in Al Masri were that Mr Al Masri was a Palestinian from the Gaza Strip who arrived in Australia on about 5 June 2001 as an unlawful non-citizen. After his arrival he was detained in Woomera Detention Centre in South Australia. He lodged an application for a protection visa claiming to be a refugee. That application was declined by a delegate of the Minister, a decision which was affirmed by the Refugee Review Tribunal. Mr Al Masri did not seek to challenge the decision of the Tribunal but, rather, signed a written request to the Minister to be returned to Gaza Strip. Mr Al Masri’s removal from Australia was delayed, apparently because officers of the relevant department could not obtain permission to transit countries on his way back to the Gaza Strip. In May 2002 Mr Al Masri commenced proceedings against the Minister in the Federal Court seeking an order in the nature of habeas corpus for release from immigration detention. Merkel J who heard the application ordered Mr Al Masri’s immediate release from detention.[49]
The Minister appealed. By the time the case came on for hearing in the Full Court of the Federal Court of Australia on 2 October 2002 Mr Al Masri had been removed from Australia, and, presumably, returned to the Gaza Strip. An argument that the appeal should be dismissed as incompetent on the basis of his removal was refused. The Minister argued that a live controversy was extant in relation to costs and that, even absent that controversy, the matter should be determined because, according to the Solicitor General’s submission, it “would be wrong and unfair to the Minister and his officers to allow the order for release to stand if it were ... based on erroneous view of the law.”[50]
In the Full Federal Court Mr Al Masri submitted that if s 196 was construed to permit detention indefinitely or for an unreasonable period it would be invalid on four separate grounds: that it would be contrary to the exclusive vesting of the judicial power of the Commonwealth in Chapter III Courts, that it would not be supported by a head of power in s 51 of the Constitution, that it would be an impermissible ouster clause purporting to prevent the Court from reviewing detention and that it would be in breach of s 75(v) of the Constitution as a limitation on the power of the Court to grant orders in the nature of habeas corpus. The Human Rights and Equal Opportunity Commission (HREOC) intervened by leave. It, too, submitted that the power to detain conferred by s 196 should be read down by reference to constitutional limitations flowing from s 51(xix) and Chapter III’s vesting of judicial power in designated courts. It submitted that the Executive or administrative powers conferred by the Migration Act to detain a non-citizen would be constitutionally valid only as long as they were limited to what was reasonably capable of being seen as necessary to effect the exclusion or deportation or to consider the admission of the person.
HREOC also submitted that implied limitations upon the power to detain were supported by principles of statutory construction derived from international law and the common law. With respect to international law it argued that a statute should be interpreted and applied, to the extent that its language allowed, in a manner that was consistent with established international law and with Australia’s treaty obligations. Thus, HREOC argued ss 196(1)(a) and 198 should be construed consistently with the rights conferred by the International Covenant on Civil and Political Rights. It also submitted that principles of statutory construction dictated that there should be clear words before a statute would be construed as removing a fundamental right or freedom – the relevant right in this instance being the right to personal liberty.[51]
The ultimate decision in Al Masri did not turn on a constitutional
point. However the Full Federal Court tentatively concluded that if s 196
imported no limitation (in particular, no temporal limitation) on the detention
of an unlawful non-citizen other than that the detention
be bona fide for one of
the purposes identified in s 196(1) (being removal from Australia under ss 198
or 199, deportation under s 200 or the ground of a visa) then it could not be
regarded as reasonably appropriate and adapted to an end sufficiently linked to
the
aliens power, particularly if considerations of proportionality were taken
into account.[52] They reached this
tentative conclusion principally upon an analysis of the High Court’s
decision in Lim.
Although the challenge to the critical provisions
of the Migration Act in Lim failed, the Full Court viewed that case as of
“critical relevance” because of “the clear preponderance of
opinion
in the judgments that Chapter III of the Constitution may operate
to impose limits upon the power to detain by reason of its insistence that the
judicial power of the Commonwealth is
vested exclusively in the Courts Chapter
III designates”.[53]
The Full Court held that while “a limited authority to detain an
alien in custody can be conferred on the Executive without
the infringement of
Chapter III’s exclusive vesting of the judicial power of the Commonwealth
in the Courts which it designates”,
that conferral is limited to the
extent that the “authority to detain in custody is neither punitive in
nature nor part of
the judicial power of the
Commonwealth.”[54]
The Full Federal Court viewed the joint judgment in Lim as
upholding the validity of the statutory scheme there under consideration because
the scheme operated so that, as a practical matter,
the detention could be
brought to an end.[55] It was the
absence of a similar provision from the sections being considered in Al Masri
(ie a section with a practical capacity to bring about release from
detention) which, in the Full Court’s view, distinguished
Lim from
the scheme the Court was
considering.[56]
In the Full
Court’s view, if the power to detain was not read as subject to
limitations, it would extend impermissibly to authorise
detention which was
punitive in nature. This was because if there was no real likelihood or
prospect of removal being effected in
a reasonably foreseeable future, the
connection between the removal of aliens and their detention became so tenuous
as to make the
detention punitive in
nature.[57] In their Honours’
view there was a clear distinction between “detention which is directed in
a genuine, and realistic
sense towards removal, and detention in the hope that,
at that some unknown point in the future, removal will be
possible.”[58]
Accordingly,
in their Honours’ view, constitutional considerations pointed strongly to
the need and foundation for a limitation
that ss 196(1)(a) and 198 authorised
detention only for as long as the removal of the removee from Australia was
“reasonably
practicable”, in the sense there must be a real
likelihood or prospect of removal in the reasonably foreseeable
future.[59]
Ultimately, as I
have said, their Honours found it unnecessary to decide the case on the
constitutional point because, in their Honours’
view, as a matter of
statutory construction s 196 should not be interpreted to curtail Mr Al
Masri’s fundamental right to liberty.
Their Honours referred to
the Hardial Singh principle, articulated by Lord Woolf in R v Governor
of Durham Prison; Ex parte Hardial Singh [1983] EWHC 1; [1984] 1 WLR 704. In that
case his Lordship held that a provision enabling the detention pending removal
or departure of a person against whom a deportation
order was in force was
impliedly limited to a period which was reasonably necessary for that
purpose.[60] The Full Court
referred to a number of cases in which the Hardial Singh principle had
been applied including by the Privy Council in Tan Te Lam v Superintendent of
Thai A Chau Detention Centre [1996] UKPC 5; [1997] AC 97 and by the House of Lords in R
v Secretary of State for the Home Department; ex parte Saadi [2002] UKHL 41; [2002] 4 All ER
785 at 793.
A similar conclusion had been reached by the majority in the
Supreme Court of the United States in Zadvydas v Davis 533 US 676 (2001)
where the Court considered applications for habeas corpus filed by aliens
detained indefinitely. The majority (Breyer, Stevens, O’Connor, Souter
and Ginsberg JJ) held that “read
in light of the constitutional demands of
the due process clause of the Fifth Amendment the post-removal-detention-period
statute
implicitly limited the detention of an alien to a period reasonably
necessary to bring about the alien’s removal from the United
States so
that it did not permit indefinite
detention.”[61]
Applying
that principle, therefore, their Honours analysed the relevant provisions of the
Migration Act. They concluded that an intention to curtail the right of
personal liberty had not been clearly manifested. Accordingly, the power
to
detain a person under the Act was held to be impliedly limited to such time as
the removal of the person from Australia was “reasonably
practicable” in the sense that there was a real likelihood of removal in
the reasonably foreseeable
future.[62]
In expressing
their conclusion the Full Court noted that the constitutional validity of ss 196
and 198 of the Migration Act had been addressed by Emmett J in NAGA v
Minister for Immigration and Multicultural and Ethnic Affairs [2003] FCA
224. His Honour had concluded that no constitutional invalidity
“arose” from construing the relevant provisions as authorising
continued detention of an unlawful non-citizen at a time when there was no real
prospect of removing that person in the foreseeable
future. Their Honours
pointed out that Emmett J’s conclusion was based upon an analysis of
Lim with which they
differed.[63]
Time does not
permit me to consider the remainder of their Honours’ judgment in detail.
I commend to you, however, a close
reading of their Honours’ analysis of
authorities both in Australia, the United Kingdom and the United States of
America which
confirmed that the right to personal liberty is one of the most
fundamental common law rights as well as among the most fundamental
of the
universally recognised human rights – a right which extends both to
citizens and non-citizens.[64]
In
so finding, their Honours applied the principle of statutory interpretation that
“courts do not impute to the legislature
an intention to abrogate or
curtail fundamental rights or freedoms unless such an intention is clearly
manifested by unmistakeable
and unambiguous
language.”[65]
In
NAGA, Emmett J accepted that it was beyond the legislative power of the
Commonwealth to invest the Executive with an arbitrary power to
detain persons
in custody.[66] This was because
detention is normally of a punitive nature and the function of judging and
punishing criminal guilt was a judicial
one referred to in Chapter III of the
Constitution. He pointed out that in Lim it had been held that
detention of an alien for the purposes of expulsion or deportation was not
punitive in nature and therefore
did not trespass on the judicial power of the
Commonwealth.[67] In Emmett
J’s view there was no constitutional reason why s 196(1) could not be read
as conferring unqualified power to keep
an unlawful non-citizen in immigration
detention until one of the events specified in the section occurred, however
uncertain the
event may be, as long as “the purpose of the detention is
removal”.[68]
The High Court refused special leave to appeal from the Full Court’s
decision in Al Masri on the basis that the special leave application
lacked utility in circumstances where Al Masri had been removed from Australia
and
also when, at the same time, it had made orders removing Al
Khafaji v Minister for Immigration & Multicultural & Indigenous
Affairs [2002] FCA 1369 and SHDB v Godwin & Ors; Ex Parte The
Attorney-General for the Commonwealth of
Australia.[69] The latter cases
both involve the question whether constitutional considerations compel
recognition of temporal limitations on periods
of immigration detention pursuant
to the Migration Act, ss 196 and 198. They were argued in the High Court
on 12-13 November 2003 along with Behrooz & Ors v Secretary DIMIA &
Ors.[70] The Solicitor-General,
David Bennett QC, acknowledged that the primary purpose of the removals was to
challenge the full Federal
Court decision in Al
Masri.[71]
Children in detention
The issue of mandatory detention arose again in
the Family Court in a number of decisions concerning the question whether the
Family
Court, in the exercise of its welfare jurisdiction and injunction powers,
could order the release of children held in immigration
detention.
In
B (Infant) and B (Intervenor) and the Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FamCA 451 the Full Court of the
Family Court (Nicholson CJ, Ellis and O’Ryan JJ) held that the welfare
jurisdiction of the Family Court
extended to all children of marriages in
Australia, including children in immigration detention, where the particular
orders sought
arose out of or were sufficiently connected to the marriage
relationship. Their Honours further held that the Family Court’s
welfare
jurisdiction derived its constitutional validity from the marriage, divorce and
incidental powers contained in ss 51(xxi) and (xxii) of the Constitution
which were to be broadly construed. They further held that in exercising the
welfare jurisdiction the Family Court could make orders
for the protection of
children of marriages directed at third parties where the orders sought were
sufficiently connected to the
relevant constitutional heads of power and that
those orders might be made to protect children of marriages in immigration
detention.
Nicholson CJ and O’Ryan J also concluded that,
consistently with the decision of the Full Court of the Federal Court in Al
Masri, if the children or any of them in immigration detention were unable
to bring their detention to an end, their continued detention
was
unlawful.[72]
The Minister
had submitted that the children’s detention could only be brought to an
end by the actions of their parents or
the children attaining a sufficient
capacity to make a request for repatriation themselves. In their Honours’
view that interpretation
raised the “very real possibility of [the]
children spending their entire childhood in detention.” They considered
that
if s 196(3) of the Migration Act produced that effect then it was
unconstitutional.[73] They agreed
with the Full Court of the Federal Court in Al Masri that there was
nothing in the scheme of the Migration Act or s 196 itself that suggested
that Parliament contemplated such a departure from fundamental freedoms and
individual liberty that would produce
such a
result.[74]
Their Honours
also found support for their conclusion in Article 37 (b), (c) and (d) of the
United Nations Convention on the Rights of Children
(“UNCROC”) requiring that no child should be deprived of his or
her liberty unlawfully or arbitrarily and that the arrest,
detention or
imprisonment of a child should be used only as a measure of last resort and for
the shortest appropriate period of time.
In their Honours’ view the
indefinite detention of the children was incompatible with Article 37 and
constituted a serious
breach of Australia’s obligations under the
Convention.[75] Accordingly, their
Honours concluded that s 196(3) of the Migration Act did not bar the
exercise of the Family Court’s welfare jurisdiction nor prevent the Court
from ordering the release of the children
from
detention.[76]
Ellis J
agreed with the analysis of Nicholson CJ and O’Ryan J as to the limits of
s 196(3) of the Migration Act and with the observations in Al Masri
that s 196 should be read as subject to an implied limitation that a period
of mandatory detention does not extend to a time when there is no
real
likelihood or prospect in the reasonably foreseeable future of a detained person
being removed and thus released from detention.
His Honour disagreed, however, with Nicholson CJ and O’Ryan J’s
conclusion that the continued detention of the children
was unlawful as, in his
view, it could not be said that there was no real likelihood or prospect in the
reasonably foreseeable future
of the children being removed and thus released
from detention.[77]
The
decision in B & B was delivered on 19 June 2003. On 8 July 2003 the
Family Court granted a certificate pursuant to s 95(b) of the Family Law
Act 1975 certifying for the purposes of an appeal to the High Court, that
the case involved an important question of law of public interest.
The High
Court heard the appeal on 30 September – 1 October 2003 and reserved its
decision. The Solicitor General for the
Commonwealth, Mr David Bennett QC,
informed the High Court that one of the issues the appellant sought to agitate,
namely that aspect
of the decision of the Family Court that the children’s
detention was unlawful, had been a matter that the parties had not
argued before
the Family Court but was nevertheless dealt with in the
judgment.[78]
Although Mr
Bennett QC submitted that the case could be resolved by issues which did not
raise the Al Masri principle he also submitted that if the Court
did decide that it had to consider that issue then it should defer giving
judgment until it had
heard the two removed cases which raise the Al Masri
principle. (Al Khafaji v Minister for Immigration and Multicultural and
Indigenous Affairs [2002] FCA 1369 and SHDB v Godwin & Ors; ex parte
the Attorney General for the Commonwealth of Australia). Both of these
cases were argued in the High Court on 12 – 13 November 2003 together with
Behrooz v The Secretary of the Department of Immigration and Multicultural
and Indigenous Affairs and judgment was reserved: [2003] HCA Trans
458.
Visa Cases
Justice Sackville has already dealt with the
High Court’s decision in Shaw v Minister for Immigration and
Multicultural Affairs [2003] HCA 72; (2003) 203 ALR 143. As his Honour has pointed out,
the facts in Shaw were almost identical to the facts in Re Patterson;
ex parte Taylor (2001) 207 CLR 391. Mr Taylor was born in the United
Kingdom and arrived in Australia at the age of nine. In 1994 he had been
granted a Permanent Transitional
Visa. Subsequently, he pleaded guilty to
offences under the Crimes Act 1900 (NSW) and was sentenced to jail. As a
result of this conviction his visa was cancelled purportedly pursuant to s 501
of the Migration Act. He was arrested and detained as an “unlawful
non-citizen”. He was subsequently released after a majority of the High
Court held that Mr Taylor had not been an alien when he arrived in
Australia and had never become one. Accordingly, he was beyond the reach
of the
aliens power and thus outside s 501 of the Migration Act.
In
Ruddock v Taylor [2003] NSWCA 262 the New South Wales Court of Appeal
dismissed an appeal by the Minister for Immigration from a District Court
judgment awarding damages
to Mr Taylor for a wrongful imprisonment. The case is
significant not merely because it provides a rare glimpse of the sequelae
of a
High Court judgment but also because of its emphasis upon the protection of the
personal liberty of individuals as well as its
emphasis that it was incumbent
upon government to establish that it has lawful authority to imprison a
person.[79] This emphasis upon the
limited circumstances in which government can impinge upon the liberty of
subjects echoes the strong statements
to like effect in Al Masri.
Judicial power
In Re Criminal Proceeds Confiscation Act 2002
(Qld) [2003] QCA 249; [2004] 1 Qd R 40, the Queensland Court of Appeal
(Williams JA, White and Wilson JJ) considered the validity of s 30 of the
Criminal Proceeds Confiscation Act 2002 which required the Supreme Court
in hearing an application for an order restraining any person from dealing with
property other
than in a stated way or in stated circumstances (s 28) to hear
the application in the absence of anybody other than, in effect, the
applicant
for the order and that party’s legal representatives. The appellant
submitted that s 30 was so inconsistent with
the essential character of the
exercise of judicial power that, given the reasoning in Kable v The Director
of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, it was
invalid.[80]
Williams JA
(with whom White and Wilson JJ agreed) held that the provision was invalid
because the command to the judge hearing the
application to proceed in the
absence of any party affected by the order to be made was such an interference
with the exercise of
the judicial process as to be repugnant to or incompatible
with the exercise of the judicial power of the Commonwealth. He held
that the
provision was constitutionally invalid because the Supreme Court of Queensland
was part of the integrated Australian judicial
system for the exercise of the
judicial power of the
Commonwealth.[81] Integral to his
Honour’s conclusion was the proposition that the right of a party likely
to be affected by a decision to be
duly notified when and where a matter was to
be heard and given the full opportunity of stating a case in response was a
universal
principle which applies to both civil and criminal proceedings and
that the effect of s 30 was to abrogate that
principle.[82]
Implied Freedom of Speech and Association
Now let me turn to the cases with election
implications.
In Mulholland v Australian Electoral Commission
[2003] FCAFC 91; (2003) 198 ALR 278 the appellant, M, the registered officer
of the Democratic Labor Party (DLP), a registered political party under the
Commonwealth Electoral Act 1918 (Cth) sought to challenge provisions of
the Act which required the DLP to provide a list of at least 500 of its members
for the purposes
of the Act (s 123(1), the “500 persons rule”) and s
126(2A)(a) which provided that none of those 500 persons could be
relied upon by
another political party for purposes of qualifying for registration as a
political party (the “no overlap rule”).
M sought to challenge
those requirements on a number of bases. First, he challenged the 500 persons
rule and the no overlap rule
as being invalid as breaching the implied
constitutional limitation respecting freedom of political communication. He
also claimed
the provisions were invalid as breaching the implied freedom of
association and freedom of participation and the right of privacy
inherent in
the Constitution.[83]
Marshall J dismissed his application at first
instance.[84]
As summarised
by the Full Federal Court, Marshall J held that there was no relevant political
communication but that even if he was
wrong, “such interference as there
was with any political communication was reasonably appropriate and adapted to a
legitimate
object.” While Marshall J apparently accepted that the
inclusion of party details on the ballot (which was an advantage of
registration
as a political party) constituted a communication about a political matter, he
also held that it was not a relevant
communication for the purpose of the
constitutional limitation because the ballot paper was a communication from the
Executive to
the voter and not a communication between
voters.[85]
Marshall J held,
applying the test for the implied freedom of communication set out in Lange v
The Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 560, that the
500 persons rule was “reasonably appropriate and adapted to the fulfilment
of a legitimate legislative purpose,
such purpose being compatible with the
constitutionally prescribed system of representative government, namely the
maintenance of
the integrity of the system of registration of political parties
and the setting of qualifications for political parties to achieve
before taking
the benefit of other provisions of the
Act”.[86]
It appeared
that the choice of the figure of 500 was based on a report published by the
JSCEC. Marshall J inferred that the number
indicated a party with a
“reasonable measure of public
support”.[87] M complained
that the 500 persons rule infringed the implied constitutional freedom of
communication because non-registered parties
were unable to have their endorsed
candidates identified by association with their party on the ballot paper.
Marshall J concluded
that this was an incident of the system of registration
which was “reasonably appropriate and adapted to achieve the legislative
aim of regulating registered political parties”. That aim, according to
Marshall J, was “to ensure that not every political
party with minuscule
levels of public support would be entitled to the benefits of
registration.” He held that “any
incidental effect upon the freedom
of a political party to communicate with the electorate at the ballot box is ...
an inhibition
‘which is commensurate with reasonable regulation in the
interests of an ordered
society’”.[88]
His Honour also found that the no overlap rule did not infringe the
implied freedom of communication against government and political
matters
because it was intended to “make the process of registration of political
parties more effective by seeking to limit
the capacity of individuals to foster
a multiplicity of political parties based on an identical or substantially
identical membership.”
He accepted a submission made by the Attorney
General for the Commonwealth that the policy behind the challenged amendments
was
“the avoidance of ‘entrepreneurial’ or cynical use of the
same ‘block’ of members to register multiple
parties with no true
and discrete membership, the minimising of confusion to voters, the
‘tablecloth’ ballot paper and
the use of ‘decoy’ or
front parties to mislead the voter into indicating a preference for a group
ticket which is merely
calculated to channel preferences to a another
party.’”[89]
Finally,
Marshall J held that there was no constitutionally entrenched freedom to keep
political associations private but that, even
if such a freedom existed, the
challenged provisions “could not reasonably be viewed as hampering that
freedom.”[90] The Full Court
of the Federal Court of Australia dismissed M’s appeal.
In the Full
Federal Court’s judgment, the Court first considered the circumstances in
which it was appropriate to draw implications
from the Constitution.
They referred to Lange where the High Court in its joint judgment
said:
“Since McGinty it has been clear, if it was not clear before, that the Constitution gives effect to the institution of ‘single representative government’ only to the extent that the text and structure of the Constitution establish it ... under the Constitution, the relevant question is not “what is required by representative and responsible government?” It is, “what do the terms and structure of the Constitution prohibit, authorise or require?””[91]
The Full Court referred to the questions the High Court said, in Lange, had to be determined when a law was alleged to infringe the implied freedom of communication. The first was whether the law effectively burdened freedom of communication about government or political matters either in its terms, operation or effect. The second was if the law did effectively burden that freedom, whether the law was reasonably appropriate and adapted to serve a legitimate end the fulfilment of which was compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Secondly, the Full Court pointed out that in Lange the High Court had observed that the freedom of communication the Constitution protected was not absolute but was limited to “what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution”.[92]
The Full Court did not agree with Marshall J’s conclusion that the relevant provisions did not burden political communication. In the Full Court’s view the statutory provisions conferred a limited privilege on registered political parties in relation to their communications with the voters. That privilege was a burden on all those seeking election who did not enjoy it.[93] Nevertheless, the Court also held that the registration of political parties under the Act was a necessary aspect of a valid and legitimate legislative objective.[94]
The appellant had argued that the 500 persons rule was not reasonably appropriate. The appellant submitted that any requirement of more than 2 members which, the Full Court inferred was presumably “the minimum to have a ‘single party’”, was “too many”. As the Full Court pointed out, while the number “500” might in one sense be considered to be arbitrary, nothing was put before the Court which suggested it was inappropriate. The Full Court recognised that:
“The Parliament must be able to take into account issues such as the extent of public support enjoyed by the party. Maybe it can also take account of the degree of recognition of the party by the voters. The Parliament could hardly be required to arrange the publication on the ballot of party affiliations if the only effect of doing so is to create confusion. It is also likely that Parliament may take into account the potential farce of the ballot paper being so large that the public lose confidence in the electoral system.”[95]
The Full Court also concluded that the no overlap rule was reasonably appropriate and adapted to the requirements of transparency and accountability within the electoral system in the same manner as was the disclosure of funding to political parties.[96]
The Court concluded that it was unnecessary for it to determine whether the system of representative government provided for by the Constitution limited the legislative power to interfere with freedom to associate and participate for the purposes of that system because, in its view, whether such limits were seen as additional to or incorporated within the limits based upon political communication they would not in any event apply to laws which were reasonably adapted and appropriate to that system. As they had concluded that the laws were so relevantly appropriate and adapted the issue did not arise. The Court also agreed with Marshall J’s conclusion that there was no right to “political privacy” implicit in the Constitution.[97]
The High Court granted special leave in Mulholland on 3 October 2003. The appeal was heard on 11-12 February 2004.[98]
Official secrecy
The next decision already has some journalists salivating at the prospects of a steady flow of information from the Australian Public Service.
In a decision which has significant implications generally, but in particular in the period leading up to a Federal election, Finn J in Bennett v Human Rights & Equal Opportunity Commission [2003] FCA 1343 held that regulation 7(13) made under the Public Service Act 1922 (Cth) was invalid as infringing the implied freedom of political communication and could not be read down so as to avoid that consequence. Regulation 7(13) provided that an Australian Public Service Employee “must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly any information about public business or anything of which the employee has official knowledge”.
As his Honour observed, the regulation only limited the information which it covered by the qualifications that it be “about public business” or that it be “anything of which the employee has official knowledge”. His Honour characterised it as intended to be a “catch-all” provision.[99]
In seeking to identify whether the regulation infringed the requirement of freedom of communication, Finn J accepted that the implied freedom could be described sufficiently in the words of McHugh J in Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 662:
“The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. Unlike the Constitution of the United States, our Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters. But as Lange shows, that right or privilege must exist under the general law”.
Finn J analysed extensively opinion, both judicial and otherwise, which emphasised the important purposes served first, by the public communication of information about government and secondly, by open government in a modern democratic society. He considered that those purposes bore directly on the vitality of the system of representative and responsible government provided for by the Constitution.[100] While his Honour accepted that “official secrecy has a necessary and proper province in our system of government”, in his view “a surfeit of secrecy does not”.[101]
Secondly, his Honour concluded that the law was not reasonably appropriate and adapted to serve a legitimate end compatible with the implied freedom of communication principally because of its catch-all operation. He concluded that “the dimensions of the control [the regulation] imposes impedes quite unreasonably the possible flow of information to the community – information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public’s knowledge and understanding of the operation, practices and policies of Executive Government”.[102]
His Honour rejected the Commonwealth’s submission that the authorisation exception in the regulation provided an appropriate basis to differentiate the nature of the information which could be disclosed. His Honour’s blunt response was that “placing ‘an unbridled discretion’ in the hands of an Agency Head may, or may appear to, ‘result in censorship’”. He concluded that if the authorisation mechanism was considered as part of the balancing process required by the second Lange test, “it unreasonably compromises the freedom by transforming the freedom into a dispensation” and was “not an appropriate filtering device to protect the efficient workings of government in a way that is compatible with the freedom”.[103]
His Honour’s conclusion succinctly captures the mood of his judgment:
“Though I am mindful that regulation 7(13) and its predecessors have been a threatening presence for Commonwealth Public Servants for over 100 years I am satisfied that it is invalid”.[104]
The conclusion that regulation 7(13) was invalid did not conclude the matter, for his Honour also considered whether the duty of loyalty both parties accepted the applicant owed to the Commonwealth to serve with good faith and fidelity or with loyalty and fidelity, coupled with a power to give directions, provided the necessary justification for the direction to Mr Bennett not to make media comment as a Customs Officer or as President of the Customs Officers’ Association which involved directly or indirectly disclosure of information about public business or anything about which he had official knowledge. His Honour accepted the applicant’s contention that if such a duty could be relied upon, the Commonwealth’s submission presupposed not only that the duty was being used in a fashion compatible with the implied constitutional freedom but also that appropriate findings had been made by HREOC that the duty could properly have been invoked. As no such findings had been made the matter had to be remitted to HREOC.[105]
Racial Discrimination
In Toben v Jones [2003] FCAFC 137; (2003) 199 ALR 1, a case which might be colloquially referred to as the flipside of the implied right to freedom of communication, the Full Court of the Federal Court of Australia (Carr, Kiefel and Alsopp JJ) held that Part IIA of the Racial Discrimination Act 1975 (Cth) which deals with prohibiting offensive behaviour based on racial hatred was constitutionally valid as an exercise of the external affairs power.
The appellant had published on the Internet a document containing information about the activities of the Adelaide Institute which professed scepticism about claims that the German State systematically exterminated 6 million Jews in concentration camps before and during World War 2. The document also claimed that the principal agents of mass murders ordered by Lenin and Stalin were Jewish. The appellant conceded that the material was reasonably likely to offend Australian Jews.
Although the Court delivered separate judgments, the conclusion that Part IIA of the Act was constitutionally valid is usefully encapsulated in Carr J’s judgment (with whom Kiefel J agreed on this point):
“In my opinion it is clearly consistent with the provisions of the [International Convention on the Elimination of all forms of Racial Discrimination] and the ICCPR that a State party should legislate to ‘nip in the bud’ the doing of offensive, insulting, humiliating or intimidating public acts which are done because of race, colour or national or ethnic origin before such acts can go into incitement or promotion of racial hatred or discrimination. The authorities show that, subject to the requisite connection [with the external affairs power], it is for the legislature to choose the means by which it carries into or gives effect to a treaty”.[106]
Freedom of interstate trade
Section 92 of the Constitution was
invoked in Sportodds Systems Pty Limited v State of New South Wales
[2003] FCAFC 237; (2003) 202 ALR 98. To the extent the case concerned a
“free trade” issue, the question was whether ss 28 – 33 of the
Racing Administration Act 1998 (NSW) were invalid as imposing an
impermissible restraint on trade, commerce and intercourse between the States
and/or between
the Australian Capital Territory and the States. The Full Court
of the Federal Court (Branson, Hely and Selway JJ) were of the view
that the
material and information before the Court was insufficient to enable it to
determine whether or not those sections or any
of them were invalid on this
basis and concluded that the declaration sought on the basis of this issue could
not have been granted.
It is worth touching, albeit briefly, upon the
gist of the argument. The appellant was authorised by the laws of the ACT and
of Western
Australia to carry out Internet betting. It had premises in both the
Territory and Western Australia from which it conducted its
Internet betting
business. It had no licence or other authority issued pursuant to the laws of
New South Wales. It had some employees
in New South Wales and apparently some
access to a licensed racecourse in that State but had no authority or permission
to conduct
any betting business at a licensed racecourse in the State. It
wished and intended to take bets over the Internet on various sporting
events
forming part of the Rugby World Cup. The effect of various New South Wales
statutory provisions dealing with gambling was
that it could not take those bets
unless it had a physical presence on a racecourse in New South Wales. The
appellant argued that
the requirement that it had that physical presence
discriminated against interstate trade (including, for that purpose, traders
from
the ACT) and against communication across the relevant borders.
The Court referred to the summary in Barley Marketing Board for New
South Wales v Norman [1990] HCA 50; (1990) 171 CLR 182 of the meaning and effect of the
requirements of s 92 of the Constitution relating to freedom of trade and
commerce. In that case the High Court explained that Cole v Whitfield
decided that the freedom of interstate trade and commerce guaranteed by s 92 is
freedom from imposition on that trade and commerce of discriminatory burdens of
a protectionist kind and that a law will discriminate
in a relevant sense
“if the law on its face subjects that trade or commerce to a disability or
disadvantage or if the factual
operation of the law produces such a
result.”[107]
The
Full Court observed that even if a law is relevantly discriminatory, it would
not be in breach of s 92 if it was reasonably appropriate and adapted to some
legitimate objective,[108] and
that it was necessary to establish as a fact that the burden operates so as to
discriminate against interstate trade, unless
the discrimination was obvious on
the face of the legislation.[109]
It was in the latter respect that, in their Honours’ view, the
evidence fell short of what was necessary to enable the Court
to deal properly
with the s 92 issue.[110] Thus
neither party had put any material before the Court to enable it to determine
whether the requirement that a licensed bookmaker
be present at a licensed
racecourse discriminated against interstate
traders.[111] Equally no material
had been placed before the Court which would enable it to determine whether, if
an analysis of the actual operation
of the provisions revealed that they
discriminated in effect against interstate bookmakers or against interstate
communication, the
burden imposed was reasonably proportionate to a legitimate
object.[112]
Although the
Court acknowledged it could enquire for itself into constitutional facts as
explained by Brennan J in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 141
– 142, in the Court’s view there were obvious dangers in a court
informing itself from its own enquiries unless
the material relied upon was
“public or authoritative or unless the Court had no other
choice”.[113]
Ultimately, in the circumstances, the greatest utility of Sportodds
may be in its emphasis on the requirement that parties who wish to challenge
a legislative scheme as contravening s 92 of the Constitution should
ensure that there is an appropriate evidentiary basis before the Court.
Outrider cases
Finally let me touch briefly on the
“Outrider cases” – a category with an enduring and endearing
quality identified
by French J last year. These cases were defined by his
Honour as “outriders of constitutional jurisprudence” which may
be
“collected under the generic heading ‘fiat justitia’ as
the philosophy that informed many of them is well summed up in the statement
attributed to Ferdinand I – Holy Roman Emperor
from 1558 BC –
fiat justitia et pereat mundus – let justice be done though the
world should perish.” According to French J “for the most part such
cases have
their own internal logic but are routed in misconception or wishful
thinking.”
The most significant case in this category, Lohe v
Gunter [2003] QSC 150, was an application to have Mr Gunter declared a
vexatious litigant. The case was the sad finale of many actions by a gentleman
whose brushes with the law involved convictions by the Magistrates Court at
Ipswich of driving an unregistered truck, one charge
of driving the same truck
without a number plate and one charge of failing to drive the truck into a
checking site (or weighbridge)
and a conviction for being the owner of a dog
which was not under effective control in a public place. He sought to challenge
one
conviction on the basis that the statutory provisions under which he was
convicted were ultra vires the Constitution. He also argued that
chapter 29 of Magna Carta which includes this clause:
“We will sell to no man, and we will not deny or defer to any man, either justice or right”.
prevented the making of any costs order against him, as amounting to the selling of justice. He also argued that the Vexatious Litigants Act conflicted with Magna Carta.
In addition he argued that there was no means by which he might lawfully pay
fines or costs because of the failure of the Crown to
provide currency as
prescribed by s 16 of the Currency Act 1965 which provides for coinage as
legal tender. There was, he said, no legal sanction for the issue of paper
money; and there was a
lack of correspondence between the face value of coins
and the price at which they may be bought using paper money. (He referred
to a
particular example of a set of gold coins being bought for an amount far in
excess of its face value.) These arguments had
been variously raised over the
years in the course of his attempts to challenge the original convictions and/or
fines/costs orders
imposed upon him as had many others including a challenge to
the validity of the 2001 Federal election, the details of which I shall
not
recount.
In a meticulous and patient judgment, Holmes J examined his
arguments, but rejected them and declared him a vexatious litigant.
Cases by Court
Full Court
South Australian River Fishery Association & Warrick v State of South Australia [2003] SASC 174, (2003) 227 LSJS 222 [s 51(xxxi)]
Herald and Weekly Times Ltd v Director of Public Prosecutions and
Vlassakis [2003] SASC 234
Edwards & Anor v Olsen & Ors; Murphy v Stevens & State of
SA [2003] SASC 238
Conservation Council of SA Inc v Chapman [2003] SASC 401
Hui v Lane [2003] SASC 401 [s 51(i), s 51(xx), s 51(xxiiiA)]
Single Judge
Featherston v Tully (No 2) [2002] SASC 338, (2002) 222 LSJS
507
Altamura v The Director of Fisheries Policy South Australia and the
Minister of Agriculture Food and Fisheries South Australia [2003] SASC
277
Tower Trust (SA) Ltd v Pincus [2003] SASC 355 [s 109]
CA
Pauls Ltd v Dwyer [2002] QCA 545, (2002) 43 ACSR 413 [s 51(xxxi), s 51(xxxvii)]
Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249 [s 71 Cth Constitution, Qld Constitution]
A-G(Qld) v Fardon [2003] QCA 416 [Cth Constitution Ch III, Qld Constitution]
Energex Ltd v Elkington & Ors [2003] QCA 430 [s 51(xxxi), s 51(xxxvii)]
Cannavan v Lettvale Pty Ltd [2003] QCA 528 [s 109, s 92]
SC
Lohe v Gunter [2003] QSC 150
A-G v Fardon [2003] QSC 200
AI and AA and The Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 943
The Attorney-General for the Commonwealth and “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission [2003] FamCA 94
B and B and Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451
HR and DR and The Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 616
KN and SD and Secretary, Department of Immigration & Indigenous &
Multicultural Affairs [2003] FamCA 610
Full Court
Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 [s 51(xxix), s 51(xxxi), s 61]
Ferdinands v Chief of Army [2003] FCAFC 10 [Ch III, s 122, s 51(vi), s 72, s 80]
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7, (2003) 196 ALR 332 [s 51(xix), s 51(xxvii), s 75, s 76]
Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70, 197 ALR 241 [Ch III, s 51(xix), s 51(xxxix)]
Mulholland v Australian Electoral Commission [2003] FCAFC 91
Toben v Jones [2003] FCAFC 137, (2003) 199 ALR 1 [s 51(xxix)]
Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153, (2003) 200 ALR 607 [s 51(xx), s 71, s 76, s 77]
Miller v University of New South Wales [2003] FCAFC 180, (2003) 200 ALR 565 [Ch III, s 51(xx), s 51(xxxv)]
Long & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 [s 51(xix), s 51(xxvii)]
Sportsodds Systems Pty Limited v State of New South Wales [2003] FCAFC 237 [s 92, s 109]
Commonwealth of Australia v Lyon [2003] FCAFC 284 [s 71, s 75, s 76, s 77]
Single Judge
O’Meara v Cmr of Taxation [2003] FCA 217 [s 53, s 55]
NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 [Ch III, s 51(xix)]
Te v Ruddock [2003] FCA 661 [s 51(xix)]
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 [Ch III, s 75(iii), s 75(v), s 76(i)]
Sportsodds Systems Pty Ltd v State of New South Wales [2003] FCA 992 [s 92, s 109, s 122]
P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1029 [s 51(xix), s 75(v)]
Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 [s 75(v)]
Mashood v Commonwealth of Australia [2003] FCA 1147 [s 51(xix), s 51(xxvii)]
Australian Gas Light Co v Australian Competition & Consumer Commission (No 2) [2003] FCA 1229 [s 77]
New England Biolabs Inc v F Hoffman-La Roche AG [2003] FCA 1460 [Ch III]
Bennett v Human Rights and Equal Opportunity Commission [2003] FCA 1433
Hollis v Minister for Immigration and Multicultural Affairs [2003] FCA 1329, (2003) 202 ALR 483 [s 51(xix), s 51(xxvii)]
State of South Australia v Slipper MP [2003] FCA 1414 [s 109, s
51(xxxi), s 75(v)]
CA
PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 174 FLR 111, [2003] VSCA 7 [s 109]
Agtrack (NT) Pty Ltd t/as Spring Air v Hatfield (2003) 174 FLR 395, [2003] VSCA 6 [s 109]
R v Ng (2002) 5 VR 257, [2002] VSCA 108 [s 80]
Director of Public Prosecutions (Cth) v Hunter [2003] VSCA 219 [s 77(iii)]
SC
Australian Securities and Investments Commission v Plymin (No 1)
(2003) 46 ACSR 126, (2003) ACLC 700, [2003] VSC 123 [s 51(i), s 51(xvii), s
51(xx), s 51(xxxix)]
Hyams v Victorian Electoral Commission [2003] VSC 156 [s 109, s
44(iv), s 52(ii), s 69]
Quigley v Legal Practitioners Complaints Committee [2003] WASCA 228
Paynter v Dunne [2003] WASCA 201, (2003) FLC 93-153 [Ch III, s 109, s 77(iii)]
CA/CCA
Julia Farr Services Inc v Hayes (2003) 25 NSWCCR 138, [2003] NSWCA 37 [s 118, s 77(iii)]
Mitchforce v Industrial Relations Commission (2003) 124 IR 79, [2003] NSWCA 151 [s 71, s 73(ii)]
R v O’Meara [2003] NSWCCA 250 [s 80]
Air Link Pty Ltd v Paterson (No 2) [2003] NSWCA 251 [s 109]
Ruddock v Taylor [2003] NSWCA 262 [s 51(xix)]
SC
Atkinson v State Bank of NSW Ltd (2003) 53 ATR 407, [2003] NSWSC 675 [s 51(ii)]
Travel Compensation Fund v Blair [2003] NSWSC 720 [s 109]
Tryam Pty Ltd v Grainco Australia Ltd [2003] NSWSC 812 [s 73(ii)]
Chief Executive Officer of Customs v Pham [2003] NSWSC 971 [s 80]
A Goninan & Co Ltd v Atlas Steels (Australia) Pty Ltd [2003] NSWSC 956 [s 76(ii), s 77(iii)]
Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107 [s 117]
Song v Coddington [2003] NSWSC 1196 [s 109, s 52]
Cases by Section
Note: Not all cases are listed here, only
those referring to particular sections.
44(iv): Disqualification from
sitting as Member of Parliament
Hyams v Victorian Electoral
Commission [2003] VSC 156
51(i): Trade and Commerce
Hui
v Lane [2003] SASC 401
Australian Securities and Investments
Commission v Plymin (No 1) (2003) 46 ACSR 126, (2003) ACLC 700, [2003] VSC
123
51(ii): Taxation
Atkinson v State Bank of NSW Ltd
(2003) 53 ATR 407, [2003] NSWSC 675
51(vi):
Defence
Ferdinands v Chief of Army [2003] FCAFC
10
51(xvii): Bankruptcy and Insolvency
Australian Securities
and Investments Commission v Plymin (No 1) (2003) 46 ACSR 126, (2003) ACLC
700, [2003] VSC 123
51(xix): Aliens
Ayan v Minister for
Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7, (2003)
196 ALR 332
Minister for Immigration & Multicultural & Indigenous
Affairs v Al Masri [2003] FCAFC 70, 197 ALR 241
Long & Minister
for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC
218
NAGA v Minister for Immigration & Multicultural & Indigenous
Affairs [2003] FCA 224
Te v Ruddock [2003] FCA 661
P1/2003 v
Minister for Immigration & Multicultural & Indigenous Affairs [2003]
FCA 1029
Mashood v Commonwealth of Australia [2003] FCA
1147
Hollis v Minister for Immigration and Multicultural Affairs
[2003] FCA 1329, (2003) 202 ALR 483
Ruddock v Taylor [2003] NSWCA
262
51(xx): Corporations
Hui v Lane [2003] SASC
401
Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153, (2003) 200 ALR
607
Miller v University of New South Wales [2003] FCAFC 180, (2003)
200 ALR 565
Australian Securities and Investments Commission v Plymin (No
1) (2003) 46 ACSR 126, (2003) ACLC 700, [2003] VSC 123
51(xxiiiA):
Maternity allowances, widows’ pensions, child endowment etc.
Hui v Lane [2003] SASC 401
51(xxvii):
Immigration
Ayan v Minister for Immigration and Multicultural and
Indigenous Affairs [2003] FCAFC 7, (2003) 196 ALR 332
Long &
Minister for Immigration & Multicultural & Indigenous Affairs [2003]
FCAFC 218
Mashood v Commonwealth of Australia [2003] FCA
1147
Hollis v Minister for Immigration and Multicultural Affairs
[2003] FCA 1329, (2003) 202 ALR 483
51(xxix): External
Affairs
Petrotimor Companhia de Petroleos SARL v Commonwealth
[2003] FCAFC 3
Toben v Jones [2003] FCAFC 137, (2003) 199 ALR
1
51(xxxi): Acquisition of property on just terms
South
Australian River Fishery Association & Warrick v State of South
Australia [2003] SASC 174, (2003) 227 LSJS 222
Pauls Ltd v Dwyer
[2002] QCA 545, (2002) 43 ACSR 413
Energex Ltd v Elkington & Ors
[2003] QCA 430
Petrotimor Companhia de Petroleos SARL v
Commonwealth [2003] FCAFC 3
State of South Australia v Slipper MP
[2003] FCA 1414
51(xxxv): Conciliation and
arbitration
Miller v University of New South Wales [2003] FCAFC
180, (2003) 200 ALR 565
51(xxxvii): Matters referred by the
States
Pauls Ltd v Dwyer [2002] QCA 545, (2002) 43 ACSR
413
Energex Ltd v Elkington & Ors [2003] QCA
430
51(xxxix): Incidental power
Minister for Immigration
& Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70, 197
ALR 241
Australian Securities and Investments Commission v Plymin (No
1) (2003) 46 ACSR 126, (2003) ACLC 700, [2003] VSC 123
52:
Exclusive powers of the Parliament
Hyams v Victorian Electoral
Commission [2003] VSC 156
Song v Coddington [2003] NSWSC
1196
53: Powers of the Houses in respect of
legislation
O’Meara v Cmr of Taxation [2003] FCA
217
55: Tax Bill
O’Meara v Cmr of Taxation [2003]
FCA 217
61: Executive power
Petrotimor Companhia de
Petroleos SARL v Commonwealth [2003] FCAFC 3
69: Transfer of
certain departments
Hyams v Victorian Electoral Commission [2003]
VSC 156
Ch III: The Judicature
A-G(Qld) v Fardon [2003]
QCA 416
Ferdinands v Chief of Army [2003] FCAFC 10
Minister for
Immigration & Multicultural & Indigenous Affairs v Al Masri [2003]
FCAFC 70, 197 ALR 241
Miller v University of New South Wales [2003]
FCAFC 180, (2003) 200 ALR 565
NAGA v Minister for Immigration &
Multicultural & Indigenous Affairs [2003] FCA 224
Hicks v Minister
for Immigration& Multicultural & Indigenous Affairs [2003] FCA
757
New England Biolabs Inc v F Hoffman-La Roche AG [2003] FCA
1460
Paynter v Dunne [2003] WASCA 201, (2003) FLC 93-153
71:
Judicial power and Courts
Re Criminal Proceeds Confiscation Act 2002
(Qld) [2003] QCA 249
Bray v F Hoffman-La Roche Ltd [2003] FCAFC
153, (2003) 200 ALR 607
Commonwealth of Australia v Lyon [2003] FCAFC
284
Mitchforce v Industrial Relations Commission (2003) 124 IR 79,
[2003] NSWCA 151
72: Judges’ appointment, tenure and
remuneration
Ferdinands v Chief of Army [2003] FCAFC
10
73: Appellate jurisdiction of High Court
Mitchforce v
Industrial Relations Commission (2003) 124 IR 79, [2003] NSWCA
151
Tryam Pty Ltd v Grainco Australia Ltd [2003] NSWSC
812
75: Original jurisdiction of High Court
Ayan v Minister
for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7,
(2003) 196 ALR 332
Commonwealth of Australia v Lyon [2003] FCAFC
284
Hicks v Minister for Immigration& Multicultural & Indigenous
Affairs [2003] FCA 757
P1/2003 v Minister for Immigration &
Multicultural & Indigenous Affairs [2003] FCA 1029
Thayananthan v
Minister for Immigration & Multicultural & Indigenous Affairs [2003]
FCA 1054
State of South Australia v Slipper MP [2003] FCA
1414
76: Additional original jurisdiction
Ayan v Minister
for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7,
(2003) 196 ALR 332
Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153,
(2003) 200 ALR 607
Commonwealth of Australia v Lyon [2003] FCAFC
284
Hicks v Minister for Immigration & Multicultural & Indigenous
Affairs [2003] FCA 757
A Goninan & Co Ltd v Atlas Steels
(Australia) Pty Ltd [2003] NSWSC 956
77: Power to define
jurisdiction
Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153,
(2003) 200 ALR 607
Commonwealth of Australia v Lyon [2003] FCAFC
284
Australian Gas Light Co v Australian Competition & Consumer
Commission (No 2) [2003] FCA 1229
Director of Public Prosecutions
(Cth) v Hunter [2003] VSCA 219
Paynter v Dunne [2003] WASCA 201,
(2003) FLC 93-153
Julia Farr Services Inc v Hayes (2003) 25 NSWCCR
138, [2003] NSWCA 37
A Goninan & Co Ltd v Atlas Steels (Australia) Pty
Ltd [2003] NSWSC 956
80: Trial by jury
Ferdinands v
Chief of Army [2003] FCAFC 10
R v Ng (2002) 5 VR 257, [2002] VSCA
108
R v O’Meara [2003] NSWCCA 250
Chief Executive Officer
of Customs v Pham [2003] NSWSC 971
92: Trade within the
Commonwealth to be free
Cannavan v Lettvale Pty Ltd [2003] QCA
528
Sportsodds Systems Pty Limited v State of New South Wales [2003]
FCAFC 237
Sportsodds Systems Pty Ltd v State of New South Wales [2003]
FCA 992
109: Inconsistency
Tower Trust (SA) Ltd v Pincus
[2003] SASC 355
Cannavan v Lettvale Pty Ltd [2003] QCA
528
Sportsodds Systems Pty Limited v State of New South Wales [2003]
FCAFC 237
Sportsodds Systems Pty Ltd v State of New South Wales [2003]
FCA 992
State of South Australia v Slipper MP [2003] FCA
1414
PSL Industries Ltd v Simplot Australia Pty Ltd (2003) 174 FLR
111, [2003] VSCA 7
Agtrack (NT) Pty Ltd t/as Spring Air v Hatfield
(2003) 174 FLR 395, [2003] VSCA 6
Hyams v Victorian Electoral
Commission [2003] VSC 156
Paynter v Dunne [2003] WASCA 201, (2003)
FLC 93-153
Air Link Pty Ltd v Paterson (No 2) [2003] NSWCA
251
Travel Compensation Fund v Blair [2003] NSWSC 720
Song v
Coddington [2003] NSWSC 1196
117: Rights of residents in
States
Hedges v Australasian Conference Association Ltd [2003]
NSWSC 1107
118: Recognition of laws etc of States
Julia Farr
Services Inc v Hayes (2003) 25 NSWCCR 138, [2003] NSWCA 37
122:
Territories
Ferdinands v Chief of Army [2003] FCAFC
10
Sportsodds Systems Pty Ltd v State of New South Wales [2003] FCA
992
Queensland Constitution
Re Criminal Proceeds
Confiscation Act 2002 (Qld) [2003] QCA 249
A-G(Qld) v Fardon
[2003] QCA 416
[10] Kable v
Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 per Gaudron J at
106.
[11] Kable v Director of
Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 per McHugh J at
121.
[12] Kable v Director of
Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at
122.
[13]
Ibid.
[14] Kable v Director
of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at
122-123.
[15] Kable v
Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 per Gummow J at
125.
[16] Kable v Director of
Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at
131.
[17] Kable v Director of
Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at
132.
[18] Attorney General
(Queensland) v Fardon [2003] QCA 416 at [18] per de Jersey
CJ.
[19] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[19].
[20]
Ibid.
[21] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[21].
[22] Attorney General
(Queensland) v Fardon [2003] QCA 416 at [25].
[24] Attorney
General (Queensland) v Fardon [2003] QCA 416 per de Jersey CJ at
[27].
[25] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[30].
[26] Attorney General
(Queensland) v Fardon [2003] QCA 416 at [35] – [38].
[28] Attorney
General (Queensland) v Fardon [2003] QCA 416 at
[39].
[29] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[42].
[30] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[40].
[31] Kruger v
Commonwealth [1997] HCA 27; (1996-7) 190 CLR 1
at 161-2.
[32] Attorney
General (Queensland) v Fardon [2003] QCA 416 at
[42].
[33] Attorney General
(Queensland) v Fardon [2003] QCA 416 per Williams JA at
[95].
[34] Attorney General
(Queensland) v Fardon [2003] QCA 416 at [96] –
[101].
[35] Attorney General
(Queensland) v Fardon [2003] QCA 416 at [102] –
[104].
[36] Attorney General
(Queensland) v Fardon [2003] QCA 416 at [105] –
[107].
[37] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[76].
[38] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[80].
[39] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[83].
[40] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[91].
[41] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[91].
[42] Attorney General
(Queensland) v Fardon [2003] QCA 416 at
[92].
[43] Fardon v Attorney
General for State of Queensland [2003] HCATrans 533 (12 December
2003).
[45] R v
Moffatt [1998] 2 VR 229 per Hayne J at
251.
[46] Al Masri at
[2].
[49]
Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 1009;
(2002) FCA 1009; (2002) 192 ALR 609.
Affairs [2002] FCA 1009 at [38]
per Merkel J.
[60] Hardial
Singh at 706.
[65]
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 at [30] per Gleeson
CJ.
[66] NAGA per Emmett
J at [51].
[67] Lim at
32.
[68] NAGA at
[54].
[69] See MIMIA v Al
Masri; MIMIA v Al Khafaji; HDB v Godwin & Ors [2003]
HCATrans 305.
[78] MIMA v B
& Ors [2003] HCA Trans
380.
[79] See Spigelman CJ at
[3].
[83]
Mulholland v Australian Electoral Commission, above, at
[7].
[84] Mulholland v
Australian Electoral Commission [2002] FCA 1255; (2002) 193 ALR 710.
[86]
Mulholland v Australian Electoral Commission [2002] FCA 1255; (2002) 193 ALR 710 at 728
[82].
[87]
Ibid.
[88] Mulholland v
Australian Electoral Commission [2002] FCA 1255; (2002) 193 ALR 710 at 728
[83].
[89] Mulholland v
Australian Electoral Commission [2002] FCA 1255; (2002) 193 ALR 710 at 729 [87] –
[88].
[90] Mulholland v
Australian Electoral Commission [2002] FCA 1255; (2002) 193 ALR 710 at 731
[96].
[91] Lange at CLR
566 – 567.
[92]
Mulholland v Australian Electoral Commission [2003] FCAFC 91 at [17];
Lange (1997) 189
CLR 520 at 567 – 568, 561 –
562.
[93] [2003] FCAFC 91 at
[22].
[94] Mulholland v
Australian Electoral Commission [2003] FCAFC 91 at
[30].
[95] Mulholland v
Australian Electoral Commission [2003] FCAFC 91 at
[36].
[96] Mulholland v
Australian Electoral Commission [2003] FCAFC 91 at
[39].
[97] Mulholland v
Australian Electoral Commission [2003] FCAFC 91 at [41] –
[42].
[98] See [2004] HCA Trans
007 and [2004] HCA Trans 008.
[100]
Bennett v Human Rights & Equal Opportunity Commission [2003] FCA
1343 at [79].
[101] Bennett
v Human Rights & Equal Opportunity Commission [2003] FCA 1343 at
[98].
[102] Bennett v Human
Rights & Equal Opportunity Commission [2003] FCA 1343 at
[99].
[103] Bennett v Human
Rights & Equal Opportunity Commission [2003] FCA 1343 at
[103].
[104] Bennett v
Human Rights & Equal Opportunity Commission [2003] FCA 1343 at
[108].
[105] Bennett v
Human Rights & Equal Opportunity Commission [2003] FCA 1343 at [120]
– [122].
[106] Toben
v Jones [2003] FCAFC 137; (2003) 199 ALR 1 per Carr J at
[20].
[107] Barley
Marketing Board for New South Wales v Norman [1990] HCA 50; (1990) 171 CLR 182 at
[199].
[108] Sportodds
at [29].
[109]
Sportodds at
[34].
[110] Sportodds
at [34].
[111]
Sportodds at
[35].
[112] Sportodds
at [36].
[113]
Sportodds at [47] – [49].
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLRS/2011/45.html