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Toscano v Magistrates' Court of Victoria & Anor [2016] VSC 144 (4 April 2016)

Last Updated: 11 April 2016

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 3020

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JURISDICTION − Plaintiff sought certiorari to quash orders of the Magistrates’ Court of Victoria – Magistrate erred in concluding that Magistrates’ Court had no jurisdiction to determine constitutional validity of s 245 of the Commonwealth Electoral Act 1918 (Cth) − No conviction recorded but fine imposed − Error of Law − Commonwealth Electoral Act 1918 (Cth) s 245; Crimes Act 1914 (Cth) s 19B − Commonwealth of Australia Constitution Act 1900 (Cth) ss 39 and 76; Judiciary Act 1903 (Cth) s 39(2).

PROCEDURAL FAIRNESS – Denial of procedural fairness − Sentencing Act 1991 s 104.

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EX TEMPORE (REVISED)

HIS HONOUR:

1 Dr Toscano has brought proceedings to obtain an order in the nature of certiorari to quash the orders made by the Magistrates’ Court of Victoria on 15 April 2015. The court ordered that the plaintiff pay a fine of $170.00 with $87.75 costs without a conviction being recorded, for failing to vote without a valid or sufficient reason in contravention of s 245 of the Commonwealth Electoral Act 1918 (Cth) (‘the Act’).

2 The factual matters which underpin the present application are not controversial. On 28 August 2014, Dr Toscano was charged with the summary offence of failing to vote at the federal election held on 7 September 2013 in contravention of s 245(15) of the Act. That sub-section provides that:

An elector is guilty of an offence if the elector fails to vote at an election.

Section 245(15B) provides:

Subsection (15) does not apply if the elector has a valid and sufficient reason for the failure.

3 The only valid and sufficient reason which Dr Toscano proffered in his defence was that compulsory voting is unconstitutional. In written submissions filed in advance of the hearing in the Magistrates’ Court on 15 April 2015, Dr Toscano submitted that the constitutional right to vote, is sourced in ss 7, 24 and 41 of the Commonwealth of Australia’s Constitution Act 1900 (‘Constitution’), together with the High Court judgments in Roach v Electoral Commissioner[1] and Rowe v Electoral Commissioner.[2] He submitted that s 245 of the Act is unconstitutional because it purports to create a duty to vote, rather than a right subject to a penalty for failure to vote.

4 The second defendant, Mr Neil Stubbs of the Australian Electoral Commission, concedes that the Magistrate erred in concluding that the Magistrates' Court lacked jurisdiction to determine Dr Toscano's claim that s 245 of the Act is unconstitutional. That concession is plainly correct.

5 The jurisdiction to determine constitutional questions is conferred upon the Magistrates’ Court by s 39(2) of the Judiciary Act 1903 (Cth) (‘Judiciary Act’) when read together with s 76(i) of the Constitution. Section 39(2) provides (subject to limited exceptions which are not presently relevant):

The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it ...

6 Under s 76(i) of the Constitution, the High Court has original jurisdiction in any matter ‘arising under this Constitution, or involving its interpretation’. A challenge to the constitutional validity of a statute is a matter arising under the Constitution or involving its interpretation.

7 The Magistrates’ Court has jurisdiction to hear and determine summary offences, including an offence under s 245 of the Act. In the course of hearing and determining whether such an offence had been committed, the Magistrates’ Court had jurisdiction to determine a constitutional issue such as that raised by Dr Toscano. That issue fell within one of the limits set by the Magistrates’ Court Act 1989 and referenced by s 39(2) of the Judiciary Act, namely that the proceedings relate to a summary offence.

8 It follows from the fact that Dr Toscano has made out his first ground of challenge that he has also made out his third ground of challenge that he was denied procedural fairness. Once again, the second defendant properly conceded that to be the case.

9 The orders which were made by the Magistrate on 15 April 2015 and authenticated on 11 June 2015 provided ‘without conviction, fined $170.00 with $87.75 costs, stay to 13 May 2015.’ The second defendant also concedes that the Magistrate had no power to make an order in those terms, that is, an order which did not record a conviction but simultaneously fined Dr Toscano $170.00.

10 The Magistrates’ Court's power to discharge an offender without recording a conviction in respect of a federal offence is prescribed by s 19B of the Crimes Act 1914 (Cth). In Commissioner of Taxation v Doudle,[3] Debelle J relevantly held:

The magistrate erred in one further respect. The terms of section 19B do not permit the imposition of a fine without recording a conviction which the magistrate purported to order. The nature of the orders which might be made by a magistrate are spelled out in section 19B. The discretion vested in the magistrate permits the magistrate to either convict and impose the appropriate penalty, or to dismiss the charge or to discharge the person without proceeding to conviction upon that person entering into what is commonly called a bond to be of good behaviour. In this case, the magistrate purported to dismiss the charge and fine the respondent. This is not permitted by section 19B. In this respect, I adopt the reasons of Gleeson CJ in R v Ingrassia.^[4] Although the reasons of Gleeson CJ concerned s 556A of the Crimes Act 1900 (NSW), the relevant provisions are similar in effect to s 19B. ^[5]

11 Although conceding that the order made by the Magistrate on 15 April 2015 was beyond power, Mr Tran, who appeared for the second defendant, submitted that the court should exercise the discretion conferred upon it by s 104 of the Sentencing Act 1991 (‘Sentencing Act’) and substitute for the sentence imposed by the Magistrate a sentence which the Magistrates’ Court had the power to impose.

12 I have come to the conclusion that it is not appropriate in the present proceeding to exercise the discretion conferred by s 104 of the Sentencing Act. First, there is a complete absence of any material from the proceedings at first instance which would provide any assistance to the court in undertaking a sentencing exercise entailing the use of the power conferred by s 104.

13 In that respect, the circumstances of the present case are in stark contrast to those before her Honour Justice Jane Dixon in DPP v Jordan[6] where her Honour, in the exercise of the discretion conferred by s 104 of the Sentencing Act, expressly acknowledged that she had the benefit of the sentencing remarks at first instance, together with materials which were made available to the sentencing judge in passing sentence, as well as counsel's written submissions on matters of mitigation. Her Honour was confident that the ‘amendment to the sentence which I propose will result in the substitution of a broadly comparable sentence, and one which is justified in all the circumstances’.[7]

14 The dearth of material in relation to the sentencing exercise carried out at first instance places me in a position where I could have no such confidence.

15 The second matter which weighs against the exercise of the discretion conferred by s 104 of the Sentencing Act is that the potential application of that section was raised only for the first time today. The written submissions filed on behalf of the second defendant on 1 October 2015 did foreshadow that if the Magistrate's order was not amended via a slip rule application, the second defendant would file further submissions seven days prior to the hearing. That would have provided Dr Toscano with an opportunity to consider those submissions.

16 That course of action was not followed. Neither Dr Toscano nor the court was placed on notice of the second defendant's wish to rely upon s 104 of the Sentencing Act.

Conclusion

17 There are three grounds which individually and collectively warrant the making of an order quashing the order made by the Magistrates’ Court on 15 April 2015 which is the subject of Dr Toscano's application for certiorari.

18 First, the Magistrate erred in concluding that the Magistrates’ Court had no jurisdiction to determine Dr Toscano's claim that s 245 of the Act is unconstitutional. Second, Dr Toscano was denied procedural fairness in being prevented from advancing arguments as to the constitutional validity of s 245 of the Act. Third, the order made by the Magistrate, which did not record a conviction but which imposed a fine, was plainly beyond power.

19 Nothing in this judgment should be taken as recording any concluded view as to the question of whether: (1) s 245 of the Act is or is not constitutionally valid or, (2) whether the requirement to serve notices under s 78B of the Judiciary Act will be enlivened in respect of any future proceedings.

20 I do note, however, that the question of the constitutional validity of s 245 of the Act has been directly considered by the Full Court of the South Australian Supreme Court in Holmdahl v Australian Electoral Commission (No 2).[8] In that case the Full Court held that s 245 of the Act is constitutionally valid.

21 I note also that the High Court in Farah Constructions v Say-Dee Pty Ltd[9] stated:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.^[10]

22 The Court will make the following orders:

(a) The Order of the Magistrates’ Court dated 11 June 2015 is quashed.

(b) The proceeding is remitted to the Magistrates’ Court to be heard by a Magistrate other than Magistrate R L Crisp.

(c) No order as to costs.

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^[1] (2007) 233 CLR 162.

^[2] (2010) 243 CLR 1.

^[3] [2005] SASC 442.

^[4] (1997) 41 NSWLR 447.

^[5] Ibid [26].

^[6] [2016] VSC 55, [58].

^[7] Ibid.

^[8]  [2012] SASCFC 110 ; (2012) 277 FLR 101.

^[9] [2007] HCA 22; (2007) 230 CLR 89.

^[10] Ibid [135] (citations omitted).