The Federal and State Courts on Constitutional Law

The 2012 term

Justice Anna Katzmann[1] 15 February 2013

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Republican Congressman, Mitchell Kaye, once proposed substituting the Bill of Rights for a Bill of Non-Rights. His proposal gained a lot of traction on the internet and would doubtless attract a lot of sympathisers here. Article II would read:

You do not have the right never to be offended. This country is based on freedom, and that means freedom for everyone – not just you! You may leave the room, turn the channel, express a different opinion, and so on; but the world is full of idiots, and probably always will be.[2]

In Australia there has been a lot of talk about freedom of speech in recent years. Andrew Bolt got hot under the collar when he found himself at the wrong end of a law suit for racial vilification.[3] A barrage of angry tweets forced an apology of sorts from broadcaster Alan Jones for remarks he made after the death of the Prime Minister's father. Both matters sparked a heated public debate on the proper limits of free speech. More recently, the debate got even hotter after the Government circulated an exposure draft of its Human Rights and Anti-Discrimination Bill 2012 (Cth). The Bill proposed that for the purpose of the definition of unlawful discrimination "unfavourable treatment" include conduct that "offends, insults or intimidates". While it seems inevitable that if the proposal had become law its validity would have been challenged on constitutional grounds, the Government sought to quell the brouhaha by withdrawing the proposal.

It has been 21 years since a majority of the High Court first decided that the Constitution contains an implied freedom of political communication[4]. Since then, it has revisited the issue on no fewer 41 occasions and is about to do so again in two appeals.[5] In the same period the implied freedom of political communication has also been the focus of numerous cases across the country and in the last twelve months it was raised in at least seven different proceedings in the eastern States. A good part of this short speech will be devoted to those cases. Otherwise the most common constitutional arguments involved Chapter III, usually the Kable principle,[6] or s 109. There were no Chapter II or Chapter IV cases.

Like my predecessor in this spot, Robertson J, I will deal only with those cases that raise points about the Australian Constitution and pass over those concerned with the interpretation of State Constitutions. I also exclude those decisions in early 2012 that Robertson J discussed in his paper last year. I refer only to judgments of the superior courts and I concentrate on the appellate judgments. I will do my best to avoid the boring bits.

There were 38 cases in all. In the overwhelming majority, the constitutional point was unsuccessful.

For some reason constitutional cases were more popular in Queensland than anywhere else, although no more successful. There were no relevant decisions in the Family Court, Tasmania or the ACT. In the Northern Territory Supreme Court there were two, both by single judges. One involved an alleged inconsistency between the Liquor Act (NT) and the Northern Territory National Emergency Response Act 2007 (Cth). The other concerned a declared drug trafficker, who challenged the forfeiture of his property to the State as an acquisition of property otherwise than on just terms. Both points failed, as did a Kable point also raised in the second case.

I will speak about the cases by category, doing the best I can in the limited time available.

Chapter 1 – The Parliament

I will start with Chapter 1 and the most interesting of those cases.

This was Holmdahl v Australian Electoral Commission (No. 2), [7] a challenge to the validity of the compulsory voting provisions of the Commonwealth Electoral Act 1918.

Nils Anders Holmdahl had been convicted of failing to vote without a valid and sufficient reason, contrary to s 245(15) of the Act. Amongst other things Mr Holmdahl argued that the right to vote was entrenched in the Constitution, and with it a right to choose whether or not to exercise it. He contended that the Act was unconstitutional to the extent that it created an obligation to vote. Despite the reference in s 41 of the Constitution to a right to vote, Gray J, with whom Kourakis CJ and Sulan J agreed, held that the Constitution does not vest in an elector a personal right to vote in a federal election; the rights conferred by ss 7 and 24 (which deal with the constitution of the Senate and the House of Representatives respectively) are public, not personal, rights given to the people of the State or the Commonwealth.[8] The phrase "directly chosen by the people" that appears in those sections does not require a particular electoral system or a particular feature, merely that there be a popular vote.[9] His Honour further held that s 245(15) is both a law with respect to elections (and therefore supported by ss 10, 31 and 51(xxxvi) of the Constitution) and a law which operates to promote full, equal and effective participation in the electoral process. Consequently, it did not operate so as to detract from the flexible constitutional mandate in ss 7 and 24.[10]

Mr Holmdahl told the media he would apply for special leave. [11] He has refused to pay the fine and has announced that he will go to gaol if necessary.[12]

In the Federal Court Jessup J rejected an argument that a surcharge referrable to notional contributions made for the benefit of high income earners, imposed on superannuation funds, including the Parliamentary Contributory Superannuation Fund, [13] was beyond the legislative competence of the Australian Parliament: Parliamentary Trustee of the Parliamentary Contributory Superannuation Fund v Federal Commissioner of Taxation. [14] The argument was unsuccessful, largely because his Honour considered that the Commonwealth Act takes a State's remuneration arrangements as they stand, and imposes the surcharge in a way which is indistinguishable in principle from the arrangements which were upheld by the High Court in Victoria v The Commonwealth ("the Payroll Tax Case").[15]

A s 51(xxxi) point was raised in Alcock v Commonwealth[16] (along with a s 109 argument). Both were dismissed. An appeal from the judgment was heard on Monday and Tuesday this week. Judgment is reserved.[17]

Finally, there were two NSW single judge decisions, Sydney Harbour Federation Trust v McCluskey [18] and Re Felicity. [19]

The first involved an unsuccessful challenge to a provision of the Sydney Harbour Federation Trust Act 2001 (Cth),[20] which exempted the Trust from the application of certain State laws, including laws relating to tenancy. It was submitted that the provision effected an acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution. The property right was said to be the right of a tenant of the Trust to seek relief from the termination of her lease under the State law. The Court held that the right was not a property right and had not been relevantly acquired.

The second decision was relevantly concerned with the referral power in s 51(xxxvii) of the Constitution. The Court held that the referral by the NSW Parliament to the Commonwealth Parliament of certain powers with respect to the custody and guardianship of children did not deprive the NSW Parliament of any power to make laws on the same subject.

The implied freedom of political communication

Over the last 12 months the Federal Court has heard three challenges to legislation alleged to contravene the implied freedom of political communication, only one of which was decided in 2012. That was Harbour Radio Pty Ltd v Australian Communications and Media Authority,[21] a challenge to a decision by the ACMA to make the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012 pursuant to s 125(1) of the Broadcasting Services Act 1992 (Cth). The Standard requires that licensees disclose commercial or other arrangements that have the potential to affect the content of current affairs programs. The challenge was brought on a number of grounds. Relevantly, the radio company argued that the Standard was not authorised by the Act because it burdened communication on political and governmental matters and was not reasonably appropriate and adapted to serve any legitimate and relevant purpose. Griffiths J held otherwise.

The other Federal Court cases arose out of the arrests of protestors in the Occupy Sydney and Occupy Melbourne sleepovers.[22] Both judgments are currently reserved.[23]

There was one case before the Full Court that I should mention at this point. That was Crosby v Kelly,[24] to which I will return. It was a challenge to the Federal Court's jurisdiction to hear a defamation suit apparently arising in the ACT. In this context it is relevant for what it does not deal with. Liberal Party pollsters, Lynton Crosby AO, and Mike Textor sued Mike Kelly, the Labor member for Eden-Monaro, for damages after he had allegedly defamed them in a tweet about their polling practices – a quintessentially political communication, you would think. Yet, despite the strongest hints from the bench, the defence does not invoke the implied freedom, nor does it rely on Mr Kelly's position and the privileges and immunities that come with it.[25]

The implied freedom was raised, however, in three quite interesting appeals in NSW and Queensland: Sunol v Collier (No 2)[26] and Owen v Menzies[27], both homosexual vilification cases, and McLindon v Electoral Commission (Qld),[28] a challenge brought by the Queensland division of Bob Katter's recently-established political party. It was also invoked by a media outlet in Liu v The Age Co Ltd [29] in an unsuccessful attempt to resist an order for preliminary discovery.

I will deal first with the homosexual vilification cases.

The proceeding in Sunol v Collier began with a complaint from Mr Collier to the NSW Anti-Discrimination Board that Mr Sunol had vilified homosexuals by posting materials on internet websites in breach of s 49ZT of the Anti-Discrimination Act 1977 (NSW). Broadly speaking, this section outlaws the public incitement of hatred towards, serious contempt for, or severe ridicule of individuals or groups on the ground of homosexuality.[30] In contravention of two clauses in a conciliation agreement[31] Mr Sunol published on various websites a number of grossly offensive statements about the Mardi Gras, homosexuals and homosexuality. As a consequence the Administrative Decisions Tribunal Appeal Panel sought to register the two clauses under s 91A(6) of the Act, the effect of which is that the registered provisions are taken to be orders of the Administrative Decisions Tribunal and enforceable accordingly (s 91A(9)). The tribunal registered one, but not the other.

In the Court of Appeal, in Sunol v Collier (No 2), [32] the Court considered Mr Sunol's contention that s 49ZT of the Anti-Discrimination Act was invalid because it infringed the implied freedom of political communication. The Court was largely concerned with whether the second limb of the test propounded in Lange v Australian Broadcasting Corporation[33] (as modified in Coleman v Power [34]) was satisfied, as it was assumed, if not formally conceded, that the first limb of that test was satisfied.[35] In other words the central question was whether the law was reasonably and appropriately adapted to serve a legitimate end in a manner compatible with the maintenance of the system of representative and responsible government prescribed by the Constitution.

Bathurst CJ held that that it was. His Honour observed that s 49ZT only incidentally restricts political communication. He said that no matter how robust, debate need not descend to public acts which incite hatred, serious contempt or severe ridicule of a particular group of persons. His Honour found that the exemption in s 49ZT (2)(c) (for public acts done reasonably and in good faith for certain purposes in the public interest) provides adequate protection for legitimate political debate. With this last proposition Allsop P and Basten JA largely agreed. The President held that the end which the section is adapted to serve is the discouragement of public acts that vilify members of the community because of their homosexuality. His Honour found that the object of the section is to reduce or remove instances of such acts that may foster a climate or atmosphere in which violence may arise, and to promote tolerance and harmony in a society in which human rights are respected.

Notably Basten JA considered that the assumption that the first limb of the Lange test had been satisfied (that is, that the law effectively burdened the implied freedom) should not have been made. He said (at [89]):

The purpose and likely effect of s 49ZT is to promote essential elements of the Constitutional system of government. These elements include the maintenance of a society in which all persons may participate as equals and express their views publicly, as well as at the ballot box, without fear of being the subject of public utterances inciting hatred towards, or serious contempt for, or severe ridicule of them as homosexuals: see Eatock v Bolt [2011] FCA 1103; 197 FCR 261 at [225], [228] and [239] (Bromberg J). Such persons may need to endure hostility, abuse and insult, so long as it does not rise to the proscribed level. Such constraints as s 49ZT imposes on political discourse do not effectively burden, but rather promote such discourse.

In the second of the two homosexual vilification cases, Owen v Menzies , [36] the Queensland Court of Appeal addressed two constitutional questions, including, relevantly, whether s 124A of the Anti-Discrimination Act 1991 (Qld) (the equivalent of s 49ZT of the NSW Act) infringes the implied constitutional freedom of political communication. The Court was unanimously of the opinion that it does not, because regardless of whether it effectively burdened the freedom, any burden was incidental and reasonably appropriate and adapted to serve a legitimate end in the required manner. De Jersey CJ and Muir JA held that it was unnecessary to decide whether the first limb of the Lange test had been satisfied. But McMurdo P held that s 124A did not burden the freedom. Consistently with what the Victorian Court of Appeal decided in Catch the Fire Ministries v Islamic Council of Victoria Inc [37] and with what Basten JA said in Sunol v Collier (No 2), [38] her Honour found that, rather than burden the freedom, s 124A "set parameters to enhance communications about government and political matters in a civilised, diverse democracy, which values all its members, irrespective of race, religion, sexuality or gender identity".[39] She said she was unable to see that the incitement of hatred towards, serious contempt for, or severe ridicule of others on the proscribed grounds could amount to political and government communication of the kind contemplated by the implied freedom under a diverse, modern democracy. Special leave was sought and the application is being heard as I speak.[40]

Liu v The Age Company Limited [41] was a defamation case brought by a woman whom the newspaper alleged had made a substantial payment to former defence minister (now Chief Government Whip),[42] Joel Fitzgibbon, to cultivate him as an agent of influence. McCallum J held that the Uniform Civil Procedure Rules 2005 (NSW) relating to preliminary discovery effectively burdened the implied freedom but was reasonably appropriate and adapted to serve the legitimate end of providing a mechanism for the identification of sources and for the purpose of commencing legal proceedings in a manner compatible with the maintenance of the constitutionally protected system of government. Her Honour therefore upheld the validity of the law.

Last in this selection of cases is the second Queensland Court of Appeal decision: McLindon v Electoral Commission (Qld). [43] This case arose out of a request by the Queensland Division of Bob Katter's Australian Party to the Queensland Electoral Commission to remove from the register of political parties the abbreviation "The Australian Party", although it had been included upon its application.[44] The request was made after the election date had been announced and the rolls had closed. The Queensland Electoral Commission claimed that the Electoral Act 1992 (Qld) ("the State Act") precluded it from making amendments to the register during an election period.

Mr McLindon, a candidate for election and the State leader, and the party itself, applied to the trial division of the Supreme Court for declaratory and injunctive relief and argued that the relevant sections of the State Act were invalid.[45] The application for injunctive relief was refused and the constitutional questions were then referred to the Court of Appeal.

The challenge was made on two bases: s 109 inconsistency and freedom of political communication. On the question of whether the implied freedom had been infringed the Court held that the impugned provisions furthered and supported a system that facilitates, rather than impedes, political communication and the democratic process. It also found that the law was reasonably appropriate and adapted to serve a legitimate end (the efficient, orderly, fair, timely and effective conduct of elections). Consequently, the Court considered it unnecessary to decide whether the impugned provisions effectively burden the implied freedom, although acknowledging the apparent merit of the Queensland Solicitor-General's submissions that they do not.

I do not know whether special leave has been sought. Mr McLindon's comment to an ABC journalist after the decision gave nothing away. This is what he said:

You know when the refs took Wally Lewis off the field, it just meant that the other players had to play harder and that's where we're at. So, we're not going to whinge and complain when the fact is we've just got to chin up and keep at it.[46]

Chapter III – The Judicature

Once again I will start with the Federal Court.

In Baker v Commonwealth [47]a number of federal magistrates failed in their challenge to the validity of amendments to the Judges' Pensions Act 1968 (Cth) ("Pensions Act"), which excluded them from the pension available to all other Chapter III judges. The magistrates, who are appointed under s 72 of the Constitution, complained that the Commonwealth's failure to provide them with a fixed and certain post-retirement life-long non-contributory pension scheme was unconstitutional.[48]

Section 72(iii) provides that Chapter III courts shall receive "such remuneration as the Parliament may fix" but stipulates that the remuneration must not be diminished during their continuance in office. The Full Court accepted that "remuneration" in s 72(iii) included non-contributory pension plan entitlements of the kind which accrue under the Pensions Act but emphatically rejected the applicants' case and all the arguments mounted in support of it.

The next decision of the Full Court of the Federal Court is Jones v Chief of Navy[49] where the constitutional arguments were equally hopeless.

In Crosby v Kelly [50] the Full Court rejected a challenge by Mr Kelly to the Federal Court's jurisdiction, holding that s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) validly confers original jurisdiction on the Court to hear defamation proceedings arising in the ACT pursuant to the common law of defamation and Ch 9 of the Civil Law (Wrongs) Act 2002 (ACT). It is a case with far-reaching implications for the disposition of ACT cases. An application for special leave was heard in Canberra this morning.[51]

The only other Federal Court case in which a Chapter III question was raised was Allseas Construction SA v Minister for Immigration and Citizenship.[52] In that case the applicant company had a contract to construct and install pipelines for gas fields off the Western Australian coast. Relevantly, the company was also responsible for the provision of workers for the execution of the works. It sought declarations about the effect of the Migration Act 1958 (Cth) on its operations. One of those was a declaration that it will not commit nor be taken to have committed an offence under the Act by, amongst other things, procuring any non-citizen who holds a relevant visa to work aboard its vessels. The Minister challenged the Court's jurisdiction, arguing that the company was merely seeking an advisory opinion on a hypothetical question. McKerracher J held otherwise.

The Federal Court aside, most of the Chapter III cases concerned the Kable principle, that is to say, that a State cannot confer on a court with a federal jurisdiction powers or functions incompatible with, or repugnant to the exercise of that jurisdiction.

There were four NSW decisions in which Kable points were considered and in all but one, they were rejected.

In KS v Veitch (No 2)[53] the Kable principle was the basis for an unsuccessful challenge to the constitutional validity of certain provisions of the Criminal Procedure Act 1986 (NSW), which protect from disclosure records subject to
"sexual assault communications privilege". Mr Veitch had been charged with assault occasioning actual bodily harm and two counts involving sexual intercourse without consent. His lawyers issued a subpoena to a psychiatric hospital requiring production of Hospital records relating to the complainant. At first instance the complainant failed in her attempts to have the subpoena set aside.

The constitutional argument was put two ways. First, Mr Veitch contended that the constraints imposed by the impugned legislation deprived him, in a practical sense, of the possibility of a fair trial. Secondly, he argued that Chapter III imposed a constitutional restraint on the power of the State to vary traditional procedures operating in the conduct of criminal trials if to do so would render such trials unfair.

The Court of Appeal dismissed the constitutional challenge. Basten JA, with whom Harrison and Beech-Jones JJA agreed, said that three factors were critical to its disposition.[54] First, the law in question is a State law relating to evidence and procedure that does not and cannot apply of its own force in federal jurisdiction. It therefore does not directly engage principles regarding the scope of federal judicial power. Secondly, as the law relates to evidence and procedure, it is squarely within the power of the Parliament to regulate criminal trials. The law is "neither arbitrary nor manifestly disproportionate in its response to a perceived weakness in traditional trial procedure".[55] Thirdly, although the effect of the law may be to make it more difficult for accused persons to defend themselves in certain circumstances, the protection of the confidences of victims does not deprive the accused of a source of information to which he is presumptively entitled. Nor is the exclusion of protected confidences a law that would tend to bring the criminal process into disrepute. His Honour pointed out that there are other areas of the law where public interests justify the exclusion of documents or other information from disclosure, the most obvious examples of which are public interest immunity and client legal privilege.

And now to Gregory Kable himself. After the High Court ruled that the legislation authorising his preventive detention was unconstitutional, Mr Kable sued the State of NSW for damages for the torts of abuse of process, malicious prosecution and false imprisonment. He failed at first instance,[56] but had a measure of success on appeal. In Kable v New South Wales[57] a five member bench of the Court of Appeal[58] rejected the State's argument that the orders of the Court that led to Mr Kable's imprisonment were orders of a superior court of record and effective until set aside. The Court unanimously allowed the appeal in part, gave judgment for Mr Kable against the State for false imprisonment, and remitted the case to the Common Law Division for assessment of damages. All the judges agreed that the orders for Mr Kable's imprisonment could not be characterised as judicial orders or the result of any exercise of judicial power. Allsop P said "it would be in the teeth of the majority's views in Kable" to find otherwise.[59] Whether this is the last word on the subject, however, remains to be seen, as on 14 December 2012 French CJ and Bell J granted the State's application for special leave to appeal.[60]

In Patsalis v State of New South Wales,[61] a prisoner serving a sentence for a serious indictable offence launched a constitutional challenge to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) ("the Felons Act"), which prevents a felon from commencing civil proceedings without the leave of the court.[62] The case is an interesting and important one, but neither its interest nor its importance lie in the constitutional point.

The last NSW case is Ashjal Pty Ltd v Alfred Toepfer International (Australia) Pty Ltd.[63] There the plaintiff failed to persuade the Court (Stevenson J) to grant a declaration that certain provisions of the Commercial Arbitration Act 2010 (NSW) (that limit the jurisdiction of the Court with respect to awards made in private arbitrations) were beyond the legislative power of the NSW Parliament. It argued that these provisions constituted an impermissible attempt to remove from the Supreme Court its constitutionally entrenched jurisdiction to review arbitral awards for "jurisdictional error"[64] and impaired the "institutional integrity" of the Court by requiring it to enforce an arbitral award infected by jurisdictional error (cf. Kable).[65] Similar arguments were recently put to the High Court in TCL Air Conditioner (Zhongshan) Co Ltd v. The Judges of the Federal Court of Australia[66] and may well suffer the same fate.

In the only Victorian case in which the Kable point was raised, it was no more successful. Director of Public Prosecutions v Debono[67] concerned provisions of the Major Crime (Investigative Powers) Act 2004 (Vic) that enable a Supreme Court judge on the ex parte application of a police officer to make a coercive powers order for the purpose of investigating "an organised crime offence". An order of this kind was made in respect of Mr Debono, who was later charged with the offence of refusing to take an oath or make an affirmation contrary to s 36(3) of the Act. Mr Debono applied for an order quashing the charge, arguing, amongst other things, that the provisions in the Act empowering the Court to make a coercive powers order and to hear applications only in closed court are invalid. His argument was that the provisions substantially impair the court's institutional integrity by undermining its defining characteristics of independence and impartiality, conduct of proceedings in open court, procedural fairness and the provision of reasons. Kyrou J rejected the argument.

Now to Queensland.

In Owen v Menzies[68] the Queensland Court of Appeal unanimously rejected an argument that QCAT had no jurisdiction to hear and determine the constitutional question because it wasn't a court and was therefore prevented by s 77(iii) from exercising federal jurisdiction. It also rejected the argument that the Kable principle applied to prevent the tribunal from exercising the judicial power of the Commonwealth as it lacks the necessary institutional integrity and impartiality.

In R v Nitu[69] a convicted people smuggler argued that s 233C of the Migration Act 1958 (Cth) which prescribes mandatory minimum penalties,[70] was not a valid law because it impermissibly interfered with the judicial sentencing discretion in a manner that distorted the institutional integrity guaranteed for all State courts by Ch III. The appellant also argued that s 233C inappropriately discriminated against low level offenders, resulting in sentences that were disproportionately high compared with sentences for repeat offenders. Fraser JA, in the Queensland Court of Appeal, with whom Holmes JA and Ann Lyons J agreed, rejected the arguments, holding that the law did not result in significant discrimination between low level and high level offender. In any event, his Honour said, because of the High Court's decision in Palling v Corfield[71] it was not open to the Court to hold that it was beyond the legislative power of the Commonwealth on that account.[72]

In The Australian Workers' Union of Employees, Queensland v State of Queensland; State of Queensland v Together Queensland, Industrial Union of Employees [73] two trade unions failed to persuade the Queensland Court of Appeal that recent amendments to the Industrial Relations Act 1999 (Qld) affecting industrial instruments applying to public servants[74] were invalid. The Court rejected the unions' arguments that the amendments to the Act were invalid because they undermine the institutional integrity of the Queensland Industrial Relations Court or their appearance of independence and thereby violate the Kable principle. The Court held that the powers of the Queensland Industrial Relations Commission to certify agreements and make awards are administrative with executive and legislative aspects and do not – contrary to the unions' argument – involve the exercise of judicial power.[75]

The Kable principle was also invoked in an unsuccessful attempt to defeat an application by the Queensland Attorney-General for a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in Attorney-General (Qld) v Harvey.[76] In the light of the High Court's decisions in Fardon v Attorney-General (Qld)[77] and Thomas v Mowbray[78] this is scarcely surprising.

In South Australia there were two decisions, which went in different directions.

In Jones v Commonwealth Services Delivery Agency[79] Gray J dismissed an appeal against conviction for the offence of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth). The gravamen of the offence was the appellant's failure to inform Centrelink that he had returned to employment and dishonestly received about $8,700 in Commonwealth benefits to which he was not entitled. After Mr Jones was convicted, the Full Court of the Supreme Court delivered its judgment in Poniatowska v Director of Public Prosecutions (Cth).[80]  In this decision, by majority the Full Court of the Supreme Court of South Australia determined that that s 135.2(1) was invalid because the section did not make an omission a physical element of the offence.[81] The majority judgment of the Full Court was later upheld by the High Court.[82] While the High Court's judgment was pending, however, the Commonwealth Parliament passed legislation amending the Social Security (Administration) Act 1999 (Cth) to impose a statutory duty on a recipient of social security payments to inform Centrelink of any changes.[83] His Honour held that the amendment applied retrospectively and to completed proceedings. Noting that the section did not seek to strike down any judgment of a court, he rejected an argument that the legislation was "unconstitutional and invalid because it is inconsistent with the separation of judicial power, in that it involves a bill of attainder or is otherwise inconsistent with the separation of powers [as a] usurpation by the Commonwealth Parliament of judicial power".[84]

In the second case – Bell v Police[85] – the Kable principle was successfully invoked to set aside a forfeiture order made under a provision in the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA)[86] which, as the name suggests, enables the police to confiscate vehicles from offenders in certain circumstances. Kourakis CJ held that the forfeiture jurisdiction conferred on the South Australian courts was "incompatible with their constitutional status as courts which must be fit for investiture with federal power".[87] The power could be exercised up to a decade after the conviction on which the application is based and, in his Honour's opinion, turned the judiciary into "a proxy for the executive".[88] For this reason his Honour held it was invalid.

Seven months earlier, however, in the Western Australian Court of Appeal a similar challenge to the validity of some of the mandatory examination powers under the Corporations Act 2001 (Cth) failed[89] and special leave to appeal to the High Court has been refused.[90]

Chapter V – The States

There were several cases during the year in which questions of inconsistency between State and Federal laws were raised, mostly unsuccessfully. In the time available I am unable to refer to all of them. I propose to mention only those in which the argument was successful. There were two, one in the Federal Court and one in the NSW Court of Appeal.

The Federal Court decision was Sportsbet Pty Ltd v Harness Racing Victoria (No 6).[91] The legislation under challenge was the Gambling Regulation Act 2003 (Vic), said to be inconsistent with s 49 of the Northern Territory (Self-Government) Act 1978 (Cth). Mansfield J upheld the validity of the legislation, though not a condition imposed under it.[92] An appeal has been filed.[93] I should mention that less than two months after Mansfield J's judgment was published, in The State of Victoria v Sportsbet Pty Ltd[94] the Full Court held there was no inconsistency between s 49 of the Commonwealth Act and the Victorian gambling legislation, overturning Gordon J's judgment to the contrary which Robertson J mentioned in his paper last year.

In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim[95] the impugned legislation was the Court Suppression and Non-publication Orders Act 2010 (NSW) which permits a court to make a suppression or non-publication order of, amongst other things, information tending to reveal the identity of or otherwise concerning a party to or witness in proceedings or someone related to a party or witness. The NSW District Court made orders of this kind directed to the world at large. The Court of Criminal Appeal set them aside, holding that there was an inconsistency between the NSW Act and the Broadcasting Services Act 1992 (Cth), which protects internet content hosts and internet service providers from liability (whether civil or criminal) for hosting or carrying particular internet content where the host or service provider was not aware of the nature of the internet content or required them to monitor, make inquires about, or keep records of internet content hosted or carried by the host or provider.


With some notable exceptions, it is as true this year as it was last (and as I suspect it will be in the years to come) that litigants tend to be distracted by what Robertson J referred to last year as "the glitter of a constitutional point" when the answer more often than not lies in a point of statutory construction. As is often the case with the practice of law, in the words of the French journalist, critic and novelist, Jean-Baptiste Alphonse Karr, plus ça change, plus c'est la meme chose.

[1] Judge of the Federal Court of Australia and Additional Judge of the Supreme Court of the Australian Capital Territory.

[2]Ann Landers, 'Bill Of No Rights Gets To Issue', Chicago Tribune (online), 19 July 2000 <>.

[3] Eatock v Bolt 197 FCR 261.

[4] In Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Willis (1992) 177 CLR 1. Until then, Murphy J was a lone voice in the wilderness. See Miller v TCN Channel Nine Ltd (1986) 161 CLR 556.

[5] Attorney-General for South Australia v. Corporation of the City of Adelaide & Ors, the appeal from Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334, and Monis v The Queen, and Droudis v The Queen [2011] NSWCCA 231, the appeals from the NSWCCA's judgment of the same name, both discussed by Robertson J in his paper last year. In Monis the appellants argued that controlling the civility of discourse, which was the end to which the impugned section of the Commonwealth Criminal Code was said to be directed, is not a legitimate end as it is incompatible with the maintenance of the effective operation of the constitutional system of government. Since this presentation the High Court has handed down its decisions in both cases. In Monis v The Queen [2013] HCA 4 the Court divided evenly on the question of validity (3-3). As a result, the decision of the Court of Appeal (which found that the section was valid) was affirmed (See Judiciary Act 1903 (Cth), s 23). In Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 a majority of the Court upheld the local government by-law prohibiting activities such as preaching or distributing pamphlets on public roads without permission.

[6] Kable v Director of Public Prosecutions (NSW)(1996) 189 CLR 51.

[7] [2012] SASCFC 110 ('Holmdahl').

[8] His Honour cited (at [26]) Re Pearson; Ex parte Sipka (1983) 152 CLR 254 at 279 (Brennan, Deane and Dawson JJ) where their Honours said that the only purpose of s 41 was "to ensure that those who enjoyed the constitutional franchise should not lose it when the statutory franchise was granted". Thus Gray J found that the section is now spent (at [26]).

[9] Holmdahl [30].

[10] Ibid [36]–[38].

[11] Candice Marcus, 'Minchin backs man's compulsory vote fight', ABC News (online), 25 November 2012 <>.

[12]Jason Kent, 'No judgment in Anders Holmdahl's compulsory voting Supreme Court challenge', Menzies House, 12 May 2012 <>.

[13] See Superannuation Contributions Tax (Assessment and Collection) Act 1997 (Cth). This case is to be heard on appeal in the Full Federal Court on Monday 18 February 2013.

[14] (2012) 203 FCR 146. The Parliamentary Trustee argued, in substance, that it curtails or interferes with the capacity of the State of Victoria to function as a government by interfering with the ability of the Victorian Government to provide for remuneration of members of parliament. This case is to be heard on appeal in the Full Federal Court on Monday 18 February 2013.

[15] (1971) 122 CLR 353.

[16] (2012) 203 FCR 114.

[17] The appeal (Alcock v Commonwealth of Australia [2013] FCAFC 36) affirmed the validity of the impugned legislation.

[18] [2012] NSWSC 253.

[19] [2012] NSWSC 494.

[20] Section 71 relevantly provides that a State law with respect to tenancy "does not apply, and is taken never to have applied", in relation to the Trust; the property (including Trust land) or transactions of the Trust; or anything done by or on behalf of the Trust.

[21] (2012) 202 FCR 525.

[22] O'Flaherty v Council of the City of Sydney and the State of New South Wales and Muldoon & ors v Melbourne City Council & ors.

[23] Since giving this presentation Katzmann J handed down judgment in O'Flaherty v City of Sydney Council [2013] FCA 344, holding that the prohibition was reasonably appropriate and adapted to a legitimate end.

[24] (2012) 203 FCR 451, on a referral by a single judge pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth).

[25] 203 FCR 451 at [10]–[14].

[26] 289 ALR 128; [2012] NSWCA 44.

[27] (2012) 293 ALR 571; [2012] QCA 170.

[28] (2012) 291 ALR 169; [2012] QCA 48.

[29] (2012) 285 ALR 386; [2012] NSWSC 12.

[30] Section 49ZT(1) provides that it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. Subsection (2) in substance exempts fair reports of public acts answering this description (para (a)), communications or the distribution or dissemination of matters on occasions that would be subject to a defence of absolute privilege in proceedings for defamation (para (b)), and "public acts done reasonably and in good faith for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest including discussion or debate about and expositions of any act or matter" (para (c)).

[31] The agreement contained two clauses in which Mr Sunol agreed not to post any further material on any website referring to homosexuals or homosexuality in a way that breaches the relevant provisions of the Act and not to post any material that disparaged Mr Colllier.

[32] (2012) 289 ALR 128; [2012] NSWCA 44.

[33] (1997) 189 CLR 520.

[34] (2004) 220 CLR 1.

[35] The first limb involves asking whether the impugned section effectively burdens the implied freedom in its terms, operation or effect. As modified by Coleman v Power, the second limb involves considering whether the law is reasonably adapted and appropriate to serve a legitimate end in a manner compatible with the maintenance of the system of representative and responsible government prescribed by the Constitution. Only if the answer to the first questions is "yes" and the second is "no" will the law be invalid.

[36] (2012) 293 ALR 571; [2012] QCA 170.  Mr Owen had published by several means a variety of obnoxious statements. They included a report to the Cooloola Shire Council, tabled at a Council meeting, a television interview, a letter published on an internet website, and a sticker displayed on his car. The Queensland Anti-Discrimination Tribunal (since replaced by the Queensland Civil and Administrative Tribunal or QCAT) found that the statements were unlawful under s 124A of the Anti-Discrimination Act 1991 and ordered that Mr Owen pay the respondent $5000 and publish an apology in the local paper. Mr Owen appealed to the trial division of the Supreme Court. His constitutional arguments were that s 124A was invalid; the former tribunal was incapable of exercising the judicial power of the Commonwealth in determining that issue; the former tribunal's orders had been made without a determination of the constitutional arguments; and the filing of the orders in the Supreme Court under s 212 of the Anti-Discrimination Act was unconstitutional.

[37] (2006) 15 VR 207 at [113], [119] and [208].

[38] (2012) 289 ALR 128; [2012] NSWCA 44).

[39] (2012) 293 ALR 571; [2012] QCA 170 at [72].

[40] Special leave was refused with costs.

[41] (2012) 285 ALR 386; [2012] NSWSC 12.

[42] Since this presentation (and several intervening events) Joel Fitzgibbon has become Agriculture Minister.

[43] (2012) 291 ALR 169; [2012] QCA 48.

[44] Previously the Australian Electoral Commission had refused an application by the party for registration of the abbreviation "The Australian Party" under the Electoral Act 1918 (Cth) ("the Commonwealth Act").

[45] Section 102(2)(g) of the State Act provides that alongside the candidate's name ballot papers must contain the party's full name, or, if the register includes an abbreviation of the party's name, the abbreviation. Section 71 relevantly provides that the application for registration of a political party must state a name for the party and, if the party wishes to use an abbreviation of its name on ballot papers for the election, it must set out the abbreviation. Section 73 provides for the Queensland Electoral Commission to register a party and for it not to do so otherwise than in accordance with the section.

[46] ABC Radio National, 'Katter Camp's Confusion and Conspiracy', PM, March 8 2012 (Aidan McLindon) <>.

[47] (2012) 206 FCR 229. Another case referred to a Full Court.

[48] The current scheme involves a Commonwealth Government contribution towards their superannuation of 15.4% of their annual salary. Benefits are therefore not fixed. Their value is also subject to the magistrates' length of service and the vagaries of the superannuation funds in which the contributions are invested.

[49] (2012) 205 FCR 458.

[50] (2012) 203 FCR 451.

[51] Special leave was refused with costs.

[52] (2012) 203 FCR 200.

[53] (2012) 273 FLR 1; [2012] NSWCCA 266.

[54] Ibid at [63]–[66].

[55] Ibid at [64].

[56] Hoeben J ruling that there was no case to go to a jury in respect of any of the three causes of action that had been pleaded: Kable v New South Wales (2010) 203 A Crim R 66; [2010] NSWSC 811.

[57] (2012) 268 FLR 1; [2012] NSWCA 243.

[58] Basten JA explained the reason for the five judge bench at [73].

[59] (2012) 268 FLR 1; [2012] NSWCA 243 at [17]. The Court also dismissed the State's argument that, whether or not the order was an order of a superior court, the State was protected from suit for relying on it. Allsop P, with whom Campbell and Meagher JJA and McClellan CJ at CL agreed on this point, held that any common law principle protecting from suit persons who obey court orders has no application in these circumstances. Basten JA considered that whatever statutory protection the gaoler might have did not enure to the benefit of the State.

[60] In June 2013 the High Court allowed the State's appeal, setting aside the decision of the Court of Appeal. The High Court unanimously held that the State of NSW was not liable for the false imprisonment of Mr Kable when it relied on an order under invalid legislation as lawful authority for his preventative detainment. The Attorneys General for the Commonwealth and the States of Victoria and Western Australia intervened to support the appeal.

[61] (2012) 81 NSWLR 742.

[62] Allsop P explained (at [2]–[4]) that the purpose of the provision, introduced after the High Court's decision in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583, was "to ameliorate the perceived harshness of the doctrine of attainder".

[63] (2012) 82 NSWLR 93.

[64] cf. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

[65] A similar submission was put in TCL Air Conditioner (Zhongshan) Co Ltd v. The Judges of the Federal Court of Australia in relation to the International Arbitration Act 1974 (Cth), which was argued last year: [2012] HCATrans 277. This was a show cause application in the High Court to restrain the judges of the Federal Court from enforcing arbitral awards made in relation to a dispute between the plaintiff and the second defendant pursuant to the International Arbitration Act. The High Court has reserved its judgment and Murphy J his, too, while the show cause application is pending. On 13 March 2013 a 6 judge panel of the High Court unanimously dismissed the constitutional challenge.

[66] [2012] HCATrans 277 (6 November 2012).

[67] (2012) 268 FLR 261; [2012] VSC 350.

[68] (2012) 293 ALR 571; [2012] QCA 170.

[69] (2012) 269 FLR 216; [2012] QCA 224.

[70] Mr Nitu was convicted of an offence under s 232A(1) of the Migration Act. The mandatory minimum penalties for this and other related offences are prescribed by s 233C.

[71] (1970) 123 CLR 52, in which the Court upheld the validity of a mandatory penalty of seven days' imprisonment for a person convicted of an offence under s 49(1) of the National Service Act 1951–1968 (Cth) for refusing to accede to a request by the prosecution to enter into a recognizance to comply with a notice to attend for a medical examination. Barwick CJ said (at 58) that it was "beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates" and it was not a breach of the Constitution to impose a mandatory sentence.

[72] [2012] QCA 224 at [41]–[42].

[73] [2012] QCA 353.

[74] Introduced by the Public Service and Other Legislation Amendment Act 2012 (Qld), assented to on 29 August 2012 and in particular s 23B which inserts a new Ch 15 Pt 2, the terms of which are set out in full in [8] of the judgment.

[75] [2012] QCA 353 at [87].

[76] (2012) 263 FLR 433; [2012] QSC 173.

[77] (2004) 223 CLR 575.

[78] (2007) 233 CLR 307.

[79] (2012) 265 FLR 158; [2012] SASC 106.

[80] (2010) 107 SASR 578.

[81] Ibid.

[82] Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408.

[83] Inserting s 66A into the Act.

[84] (2010) 107 SASR 578 at [27], [40].

[85] [2012] SASC 188.

[86] Section 12(1)(a)(iii).

[87] [2012] SASC 188 at [10].

[88] Ibid at [67].

[89] Saraceni v Jones (2012) 42 WAR 518.

[90] (2012) 246 CLR 251.

[91] (2012) 206 FCR 50.

[92] The Gambling Regulation Act 2003 (Vic) requires wagering service providers (WSPs) to obtain approval from the controlling body before using "race fields" information. Mansfield J held that the condition of approval that Sportsbet and other Territory based WSPs pay the controlling body a percentage of their assessable turnover derived from Victorian harness racing was a protectionist burden of a discriminatory character and therefore invalid.

[93] The appeal was subsequently abandoned prior to hearing.

[94] (2012) 207 FCR 8.

[95] (2012) 263 FLR 211; [2012] NSWCCA 125.