Queensland Police Union of Employees and Ors v State of Queensland [2013] HCATrans 256 (24 October 2013)

Last Updated: 25 October 2013

[2013] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B48 of 2013

B e t w e e n -

QUEENSLAND POLICE UNION OF EMPLOYEES

First Plaintiff

QUEENSLAND NURSES’ UNION OF EMPLOYEES

Second Plaintiff

QUEENSLAND TEACHERS UNION OF EMPLOYEES

Third Plaintiff

and

STATE OF QUEENSLAND

Defendant

Summons for directions

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 OCTOBER 2013, AT 10.16 AM

Copyright in the High Court of Australia

MR N.J. OWENS: If the Court pleases, I appear for the plaintiffs. (instructed by Hall Payne Lawyers)

MR G.J.D. DEL VILLAR: May it please the Court, I appear for the defendant. (instructed by Crown Solicitor (Qld))

HER HONOUR: Mr Owens, just to better understand the shape of this case - it is not completely apparent to me from the statement of claim in its present form – the provision in question requires authorisation of expenditure. In paragraph 38 it is alleged that section 553F(2) of the Industrial Relations Act (Qld) burdens the freedom of communication about political matters and gives two particulars. Those particulars really say no more than what the statute says. What is going to be the plaintiffs’ case about how the burden is affected? Is it simply that the requirement of authorisation itself amounts to a burden?

MR OWENS: Yes, step one.

HER HONOUR: That is it. It is as simple as that, yes.

MR OWENS: That is the first, if you like, alternative, the mere fact of requiring authorisation is a burden.

HER HONOUR: Because of all that it requires.

MR OWENS: I think then that is the second step – to say that even if the mere fact of requiring authorisation is – to say that it is.....burden.

HER HONOUR: It is what is involved in the process of authorisation.

MR OWENS: That is right and there is a variety of things that are relevant there, but critically we would point to, first of all, the necessary delay between forming the view that one wishes to make of the communication and being able to have the necessary authorisation.

HER HONOUR: I see.

MR OWENS: Additionally, the cost involved – and sometimes it will be a disproportionate cost involved - in seeking approval to spend $10,000 one may have to spend a sum significantly in excess of $10,000 to poll one’s members in accordance with the requirements of the regulation.

HER HONOUR: Perhaps they could be further particularised. Some of these are referred to in relation to the alternative argument, the proportionality question.

MR OWENS: Yes, so what we have done is we have identified that the burden in paragraph 38 – but perhaps then - - -

HER HONOUR: But the burden has to be a practical one, not just – in its operation and effect.

MR OWENS: Quite.

HER HONOUR: But as I have said, the particulars thus far seem to go no further than saying what the statute requires – the burden, I think, on the political communication perhaps requires a little more than that.

MR OWENS: We would be happy to attend to that. Can I just indicate that it is likely that those particulars would probably overlap to some extent at least with particulars to paragraph 40, which currently there are saying this is a disproportionate - - -

HER HONOUR: Although that probably goes on to address the question of the extent of the burden.

MR OWENS: Quite, but I suppose what I am putting, probably badly, is that the matters we rely on as saying this burden is too great in paragraph 40 we would also say that they are in turn the things that constitute the - - -

HER HONOUR: The burden.

MR OWENS: But we could certainly attend to making that clearer.

HER HONOUR: The allegation in paragraph 39 that there is no legitimate end or purpose to which it is directed, are you saying that there is a complete absence of legislative object or that there is some ulterior purpose. It is not entirely clear to me what is intended by that.

MR OWENS: Again, as we gather it – and, of course, in a sense we rely on the State to tell us what its legitimate end was but so far as we can tell, the only purported legitimate end here is the protection of union members.

HER HONOUR: Yes, that is just as a matter of inference.

MR OWENS: That is just as a matter of inference and reading some things from what was said in Parliament.

HER HONOUR: Yes.

MR OWENS: Now, we say that if the inference is – there is a risk that those in control of unions will spend their members’ money in ways that members do not approve of, we say it is a very peculiar response to that concern to say we will focus on one particular form of expenditure, namely political communication. We say in those circumstances what the law does does not seem to us to square with the only legitimate end that we can conceive of and in those circumstances we say it is not directed to a legitimate end. It is directed to imposing a burden on political communications.

HER HONOUR: I see. Well, 39 needs to be rephrased then, does it not? You are not saying there is no legitimate purpose identified. You are saying that the provisions are not directed to it. That is somewhat different. They do not address it.

MR OWENS: Perhaps I have addressed it badly. I think what we are saying is we do not see this law as, in substance, being directed to the end of protecting - - -

HER HONOUR: You are talking about a connection really, are you not? You are talking about whether or not it is connected to the object – you are not denying that the object is itself constitutionally permissible, but you are saying that the particular provisions do not have a proper connection with that object.

MR OWENS: I accept that, yes.

HER HONOUR: I follow. In relation to the alternative proportionality argument which assumes that if it is directed – if the provision is directed to that object, as framed they do not really address the Lange questions, do they?

MR OWENS: They were not intended to. What we are saying there is if the end is one which is merely designed to protect the interests of union members’ funds from dissipation by those in control of the union, this law goes - - -

HER HONOUR: Further than reasonably necessary.

MR OWENS: Further than reasonably necessary and is disproportionate to the interests of the system of responsible government.

HER HONOUR: Are you going to identify alternative means, in which case you would need to consider constitutional facts for the special case, I think.

MR OWENS: We were not proposing to identify alternative means.

HER HONOUR: All right. I think that there is at least a view in Monis that that needs to be addressed, but it is a matter for the party if it is not. Mr del Villar might not agree with that anyway.

MR OWENS: Can I say I think what has fallen from your Honour means that we at least need to give some thought to how this - - -

HER HONOUR: I think it might be preferable to consider the shape and clarity of the pleading before we go into the special case because that is where the facts necessary for the special case, particularly constitutional facts, are identified. I think it might be preferable to do that.

MR OWENS: I accept that.

HER HONOUR: Now, I think it was said at – it is not suggested that this matter needs to be heard with the New South Wales Union case which is coming on for hearing in a couple of weeks’ time.

MR OWENS: Not heard with it, no, I think that would be - - -

HER HONOUR: Well, you could not do it and it really does not have much of the same issues – the legislation is quite different.

MR OWENS: Quite. As we put it in our written submissions for the directions hearing we say that the issues are complementary but do not, at least to any significant extent overlap so we would say that the disposition of the New South Wales case is unlikely to be of any specific guidance or assistance in the disposition of this case.....particularly around the edges be very relevant.

HER HONOUR: I am trying to think what they have in common at all really except perhaps the application of the Lange tests.

MR OWENS: Obviously, if one were to layer both questions of application of a settled Lange/Coleman test there would be some degree of overlap, for example, one of the acts which is prescribed here is the making of a donation so the question of a donation constitutes political communication so it will be common to the two. That is really at the margins. Anyway, I am not arguing this, your Honour, I agree and it is my submission that the issues in the case are quite different.

HER HONOUR: The entities, the bodies here concerned are all State bodies, are they not? There are no federal - - -

MR OWENS: That is correct. The Act applies to State registered unions.

HER HONOUR: There is no broader – yes. I suppose there may be similar questions as to the implied freedom in its Commonwealth dimension and the State powers and whether or not there is an implied freedom under the State Constitution.

MR OWENS: Well, two things. One, we do not raise any argument about an implication under the Queensland Constitution so - - -

HER HONOUR: You are relying entirely on the Commonwealth.

MR OWENS: We rely entirely on the Commonwealth Constitution.

HER HONOUR: I see.

MR OWENS: The case does not, though, as we see it now, without benefit of a defence of course – as we see it the case does not raise a question which has been quite prominent in the New South Wales case, which is what I might call the division between State and Commonwealth political matters.

HER HONOUR: Yes.

MR OWENS: One step further from that the argument that some of the States have advanced in that case that there is an immunity from the federal freedom – I am not quite sure how to put it – based on Melbourne Corporation ideas perhaps – that issue we say will not come up in this case because the prohibition in this legislation in terms extends to political communications relating to the Commonwealth Parliament. So we say that even if one says that there is some trouble distinguishing sometimes between State and the Commonwealth, here the legislation in terms applies to Commonwealth communications.

HER HONOUR: Is it proposed to await the outcome of the New South Wales case?

MR OWENS: That is not my submission. My submission is that the case should proceed as quickly as it reasonably can for two reasons really. The first is that it is an offence punishable by a substantial fine to breach this law and my clients are put in a difficult position every day trying to work out what they should do. The second is the one that I have just mentioned which is that the disposition of this case as we see it really will not flow in any direct sense from the New South Wales case, so there is no advantage as we see it to be gained by waiting for the results in New South Wales and then having another look. We say really this case needs to move forward on the same - - -

HER HONOUR: The parties are involved in the New South Wales case so they will be able to see how the argument shapes in any event. All right then. Well, before we deal with the directions I should ask Mr del Villar if he has anything to add.

MR DEL VILLAR: Your Honour, the State’s position is that the matter should not stay in this Court. It should be remitted to the Supreme Court. Your Honour raised the issue of constitutional facts and that is precisely one of the reasons why it should be remitted. Paragraph 40 of the statement of claim, if your Honour could just look at that, that raises issues about the costs required to conduct an expenditure ballot, time required and in paragraphs (f) and (g) the “chilling effect created”. Those are matters that the State would want to have evidence about and to contest and it is not at all clear at this point that they are going to be able to be addressed satisfactorily in a special case.

HER HONOUR: I suppose the question then, Mr del Villar, is whether or not we allow the further amendments to the statement of claim to take place and the parties to take the draft special case as far as they can.

MR DEL VILLAR: That might be one option, your Honour.

HER HONOUR: Because then we could better identify what are the facts for the purposes of another court if that is necessary and the parties could see – we should not assume that the parties cannot agree some of these facts. I mean some of them should not be too difficult. It might just be one or two might be sticking points. Perhaps we should allow the process to remain here under my supervision until we can better identify what the essential necessary facts are.

MR DEL VILLAR: That is one option, your Honour, but I should just foreshadow that issues such as the chilling effect are not going to be admitted without controversy.

HER HONOUR: I was rather hoping – although I had not said anything specifically – that in the course of amendment that something that goes beyond statements of facts necessary for pleading might be reconsidered. Yes, thank you, Mr del Villar. Mr Owens, you might take account of what I have just said about the particulars and that the particulars in the amendment of the statement of claim should be done with an eye to what facts are necessary. Perhaps if we allow sufficient time for that and the defence and for the parties to have at least attempted to have taken the special case draft as far as they can.

MR OWENS: That would be my submission to your Honour.

HER HONOUR: The matter could come back before me after pleadings, but I think if the parties actually sit down to draft the special case it will become evident where the problems, if any, are.

MR OWENS: Quite, and of course there are any number of ways that a special case can be drafted. It does not always in fact require everyone to – I mean if one took, for example, the costs required to conduct an expenditure ballot it may well be that we provide some quotations which suggest the cost is X, the State might say no, we think you can do it cheaper. The special case can say - - -

HER HONOUR: It is a range of.

MR OWENS: There is a range from here to here depending on who you use. I just give that as an example of the fact that there are ways of – I mean in the Tobacco Packaging Case there was, of course, a very real contest about some of the facts but they were phrased in a way that everyone was able to agree them.

HER HONOUR: You might at the same time turn your mind to whether or not alternative means need to be addressed as a question of fact as well. It may be a case where none are pointed to – it is an “all or nothing” position. I am not sure.

MR OWENS: Yes.

HER HONOUR: Well then, how much time would you need to turn your mind to and settle the amendments?

MR OWENS: Could I ask for one week longer than I would ordinarily ask for, being three weeks, simply because, as your Honour knows, the New South Wales case is coming up - - -

HER HONOUR: Yes, I thought that you might be a little busy.

MR OWENS: A week say – if we could have three weeks that would be - - -

HER HONOUR: So that would take us through to 14 November for the amended statement of claim.

MR OWENS: Thank you.

HER HONOUR: Then the defence, Mr del Villar, what timeframe?

MR DEL VILLAR: Could we also have three weeks, your Honour?

HER HONOUR: So, 5 December and then the time for a special case.

MR OWENS: Could we deliver our draft to the State on whatever the last working day of, I think, 20 December?

HER HONOUR: Yes, and the parties would then confer – I do not need to direct that the parties confer but it would be understood that the parties then confer with a view to settling a special case. The next direction simply needs to be a date that it comes back before me, which will obviously be in the New Year.

MR OWENS: Some time early in the New Year.

HER HONOUR: Court recommences in the week commencing the 3rd. Is there any reason why I should attempt to hear directions earlier than that?

MR OWENS: Not earlier than that.

HER HONOUR: The week before – the week before sittings commence in Canberra which is somewhere between 28 and 31 January – I could hear new directions at that time.

MR OWENS: That would be convenient to me.

HER HONOUR: Mr del Villar?

MR DEL VILLAR: That is suitable, your Honour.

HER HONOUR: Shall we say then that the matter be listed for further directions on Thursday, 30 January at 10.15.

MR OWENS: If the Court pleases.

HER HONOUR: Yes, thank you, gentlemen. Court will adjourn.

AT 10.34 AM THE MATTER WAS ADJOURNED