the kennel

Healy v Commissioner of Taxation [2013]

Sun, 19 May 2013 10:02:46 +1000

Catchwords: JURISDICTION – whether objection decision of Commissioner is a decision which is reviewable by Tribunal – Commissioner’s reasons for decision on objection failed to address one of the applicant’s grounds of objection - Tribunal not bound by Commissioner’s reasons for decision – Tribunal’s jurisdiction enlivened by notice of objection decision not by reasons for decision attached to that decision

Before the AAT, Healy sought review of the Commissioner’s decision to disallow certain income tax deductions relating to expenses incurred defending a bankruptcy action. In making its decision, the Commissioner considered the deductibility of those expenses under s 8-1 of the Income Tax Assessment Act 1997 (general deductions) but not under s 25-5 (tax related expenses) in its reasons for decision, which was raised by Healy.

Healy sought review of the decision in the AAT but later sought an adjournment as he argued that because the Commissioner failed to consider deductibility under s 25-5 the Tribunal did not have jurisdiction [at 36]. In essence, he was arguing that as a decision had not been made the Tribunal could not review that decision. However, the Tribunal held it did have jurisdiction to hear the matter. Its reasoning was as follows [at 41-45]:

The Tribunal determined that its jurisdiction was enlivened by the Objection Decision itself, rather than the “Reasons for Decision” attached to that decision…

The Tribunal makes the observation that there is a difference between a “decision” and the reasons for it... That is, a distinction can be drawn between the Commissioner’s “decision” (being his “Notice of Objection Decision”) and his “Reasons for decision”, attached to the decision…

Finally, as mentioned at the hearing of this application, the Tribunal is not bound by the grounds on which the decision-maker (in this case the Commissioner) reached his decision (i.e. his “Reasons for decision”, attached to the Notice of Objection “decision”)… The Tribunal is required to reach the correct and/or preferable decision and is not constrained by the decision-maker’s reasoning… Further, it has been held that in merits review hearings before the Tribunal the decision-maker is not obliged to rely solely on reasons formerly advanced to support the decision under review… Consequently, the fact that the Commissioner did not consider the deductibility of the Expenses under s 25-5 of the ITAA 1997 in his “Reasons for decision” (attached to the Objection Decision) does not prevent him from raising that issue before the Tribunal.

From this ruling, it is clear that in determining its jurisdiction, the AAT will look to the decision made not the reasons for it. Further, in the review itself the decision-maker and the Tribunal are not constrained by the reasons for the decision at first instance.

The Tribunal went on to affirm the Commissioner’s decision despite his failure to consider deductibility under s 25-5. The lesson from this is that an applicant must be prudent in ensuring that they have exhausted all internal review mechanisms, if necessary, before approaching the AAT, considering the latter’s wide gamut to review the decision.

Casenote: Minister for Immigration and Citizenship v Li [2013]

Sat, 18 May 2013 22:01:00 +1000

Catchwords: IMMIGRATION – Migration Review Tribunal – Review of decisions – Visa applicant sought review by Migration Review Tribunal (“Tribunal”) of decision of Minister’s delegate to refuse skilled residence visa – Section 363(1)(b) of Migration Act 1958 (Cth) gives Tribunal power to adjourn review of decision – Visa applicant requested Tribunal adjourn review until the outcome of a review of her skills assessment was finalised – Whether Tribunal’s refusal to adjourn was unreasonable

The distinction between jurisdictional and non-jurisdictional error for the purposes of administrative review is something of a vexed issue in legal scholarship and this recent decision of the High Court blurs the distinction further by holding that unreasonableness may constitute jurisdictional error.

In the case, the Migration Review Tribunal (MRT) refused to grant the respondent an adjournment to undertake a skills assessment for the purposes of securing a skilled workers visa. The High Court unanimously held this decision of the MRT to be unreasonable, to constitute jurisdictional error and thus be reviewable.

Ed: Ken Parish of CDU has pointed out that the Court has previously held unreasonableness to be a jurisdictional error.

Casenote: Barber v Victoria (No 2) [2013]

Sat, 18 May 2013 18:08:00 +1000

Catchwords: PRACTICE AND PROCEDURE – Application for preliminary question to be determined - Proceeding seeking declaration concerning the powers and privileges of the Legislative Council of the Parliament of Victoria – Proposed preliminary question concerning justiciability, standing

It’s round two to the government in Greens MP Greg Barber’s protracted dispute against the state government over the release of Cabinet documents.

In an earlier post after Barber’s initial victory against a summary dismissal application, I noted:

There are a number of preliminary questions which Mr Barber has to overcome should he be successful in his claim.

Firstly, there is the issue of standing and, more particularly, “the question as to how Mr Barber, as a single member of the Legislative Council, can challenge the privilege that has been asserted by the Government” [at 37]…

Secondly, there is the issue of justiciability which goes to the court’s jurisdiction to hear the matter. Justice Emerton stated that Mr Barber’s “application for declaratory relief will not succeed unless the Court can be persuaded that his application for a declarations as to the powers and privileges of the Parliament is justiciable” [at 43] and clearly anticipated that this would be an issue that would be further ventilated at trial or a preliminary hearing…

Should Mr Barber be able to appropriately address these preliminary questions, his prospects of success in the war may be the greater.

It seems these two issues have popped up in a successful application by the government to have these dealt with at a preliminary hearing [at 1]. In doing so, the government sought to separate these issues of law from “the substantive question of the public interest immunity status of the Deloitte report” which was being sought be Barber [at 3].

Justice Emerton agreed with the government’s reasoning, concluding that if Barber could not show standing and justiciability, the matter would be disposed of prior to trial [at 10, 15]. His Honour further noted that these were “difficult threshold issues” [at 20] concerning “the very difficult question of how far, if at all, the Court may inquire into the internal affairs of the Parliament” [at 23].

It seems, as discussed earlier, that Barber will need to adduce further facts to show that the matter is justiciable.

Justiciability in Australian Administrative Law

Sat, 18 May 2013 16:39:00 +1000

Justiciability is a troublesome and somewhat uncertain concept, of which there are no settled categories. It has been described as “a complex phenomenon that weaves together a number of strands” (Finn 2002). The term itself refers to “the suitability for, or amenability to, judicial review of a particular administrative decision” (Finn 2007) and dates in usage to the early seventeenth century, but is still used by courts today.

Analysing the cases of Church of Scientology v Woodward, Re McBain; ex parte Australian Catholic Bishops Conference, and Hicks v Ruddock, this post will seek to discern a modern trend to the circumstances in which Australian courts will be prepared to engage in judicial review and those in which they will not. From analysing the judgments, the following issues emerge as considerations affecting justiciability:

the presence of any alternative mechanisms of review;
the court’s access to standards and information by which to make its decision;
the nature of the rights affected;
the timing of the claim;
the relief claimed; and
the nature of the plaintiff’s interest.

The first three considerations concern the internal nature of the decision-making power in question and its source; the latter three being more concerned with external or extrinsic factors. Each of these considerations will be analysed in turn, followed by a criticism of the modern doctrine of justiciability expressed in the cases.

Considerations

Alternative mechanisms of review

In Woodward, Wilson J (at first instance) noted that if the statute giving rise to the decision provides a limited and “specific form of… review” outside of the court, for example a specialist tribunal, the matter may not be justiciable in court [at 39-40]. This is even so if the form of review does not apply to the decision in question as, on appeal, Gibbs CJ stated that it would be “anomalous” if Parliament made “express provision” for a specialist tribunal to hear appeals against particular decisions and left decisions outside that scope reviewable by the ordinary courts [at 53]. However, concern was expressed by the Court regarding parliament’s ability to impliedly oust its jurisdiction [at 56, 77]. As Mason J observed:

[A]ny suggestion that Parliament has impliedly excluded judicial review… should be viewed with extreme caution, indeed with healthy scepticism. If Parliament intends to take the radical step of ousting judicial review then it is reasonable to suppose that it will express its intention with directness and clarity… rather than leaving the Court to spell it out [at 55].

Though the Courts have treated attempts to oust their jurisdiction through means of appeal to other bodies with, as Mason J puts it, “healthy scepticism”, the Courts will seldom adjudicate on a matter where an alternative mode of judicial review has already been, or is being, exercised. In McBain, Hayne J noted that if a matter “has already been quelled by the application of judicial power” in a court and an appeal has not been instituted, there is limited scope for the Court to engage in judicial review [at 246]. Similarly, in Hicks, Tamberlin J noted that if the matter was presently being considered by another court or body, it may be non-justiciable in this instance [at 79].

Access to standards and information

Another issue which affects justiciability is, as Gleeson CJ in McBain put it, “practical limitations on the capacity of the judicial branch of government to resolve [the] legal questions” [at 7].

In Woodward, Wilson J (at first instance) held that it was necessary that “the operations of [the decision-maker be] controlled by criteria which are capable of objective determination” [at 39]. These constitute “standards or norms against which [the impugned] conduct could be measured” [Hicks at 73]. Without objective criteria, it would be “impossible for a court” to adjudicate on the matter [Woodward at 53]. Similarly, as Tamberlin J in Hicks explained, the matter must be “amenable to the… court… such that it has… legal guidelines or criteria against which to make its determination” [at 29]. For, where “there are no… judicial or manageable standards by which to judge [the] issues”, it will be difficult for the court to adjudicate [at 15].

This closely aligns to the issue of polycentricity, most clear in Woodward, where the difficulties of appropriately balancing a large number of elements or interests may render review of the impugned decision “a task that could not be successfully undertaken by the adjudicative method” (Fuller 1978). This poses a significant problem, for “[w]hereas the judiciary are bound to adjudicate according to rules, polycentric problems tend not to have a rule readily able available to assist in their resolution because they involve a multiplicity of interdependent factors” (Waye 1991). Finn, however, argues that by strictly applying the ‘legality merits distinction’ “[e]ven the most complex and polycentric of administrative decisions is capable of judicial supervision” because the Court is not tasked with evaluating the merits of the polycentric interests but instead analysing the decision for procedural defects (Finn 2002). The minority in Woodward recognised that it was possible for the Court to apply objective standards to the disputed decision by focussing on procedure rather than merits [at 68, 71]; though this was not supported by the majority.

Another significant factor regarding the court’s access to information is the effect of lack of evidence. This is particularly so in cases involving national security, “where the executive may resist disclosure of documents or other evidence on the basis of crown immunity” or privilege (Finn 2007). The Court in Woodward was confronted with a situation whereby “Crown privilege [would] almost certainly exclude from consideration some evidence that is material and would otherwise assist the Court in deciding” the matter [at 60]. The Court in Hicks was confronted with possible lack of evidence on similar grounds [at 79]. Clearly, where “the courts may lack access to the full range of information upon which a decision is based”, they may be unable to adjudicate (Finn 2002). As Mason J noted, however, “[t]he fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction” [at 61]. Yet where the lack of evidence is such so as to present no reasonable prospect of success or the absence of any prima facie case, the court may not adjudicate [Hicks at 13; Woodward at 64].

Rights affected

Another ground affecting justiciability is the nature of the rights affected. In Woodward, Gibbs CJ suggested that if a “private right has been infringed” by the decision, the matter may be justiciable [at 53]. Examples of infringement of a private right include actions that “affect the liberty or interfere with the person or property of a private citizen” [at 53] such as detention [Hicks at 21], “defamatory statements” against a private citizen [Woodward at 53], and “[s]urveillance in association with the the obtaining, storage and dissemination… of information relating to private citizens” [at 59] Tamberlin J in Hicks also adds to this “grave… infringement[s] of human rights” [at 18]

In McBain, the Court drew a wider circle, stating that where a “right, duty or liability” [at 3] has been “affected” [at 204], the matter may be justiciable. As Lord Diplock said in Council of Civil Service Unions v Minister for Civil Service, “the decision must have consequences which affect some person… either: (a) by altering rights or obligations of that person… or (b) by depriving him of some benefit of advantage” [at 408-9] The question thus becomes one of establishing affected rights rather than pointing to a “grave infringement” of a human right. However, it is clear that the courts will be more prepared to engage in judicial review when confronted with breaches of human rights.

External factors

While the latter grounds concern the nature of the issues before the court, Creyke and McMillan note that certain external circumstances may affect justiciability, “including the plaintiff’s standing to commence proceedings,… the nature of relief claimed, or the time at which proceedings were commenced.” These shall each be considered in turn.

Timing of the claim

In Woodward, Mason J suggested that the lapse of time may render a matter non-justiciable, stating that “[i]t is inconceivable that the Court would exercise its discretion so as to grant… relief in respect of past acts long since completed” [at 62]. In McBain, McHugh J noted that the plaintiff’s delay in applying for relief may be as short as a couple of years to trigger non-justiciability [at 107-8]. Conversely, where the plaintiff is complaining of the decision-maker’s failure to act, the passage of time may heighten justiciability as it exacerbates the inaction, as per Hicks [at 80]. Additionally, if a matter is brought prematurely, that is, before the decision-maker has come to a full conclusion, the matter may not be justiciable [Woodward at 52] as “the plaintiff has acted in haste… before any actual ground of review has been made out” (Finn 2007).

Relief claimed

As was stated in Woodward, it must be within the “jurisdiction of [the] Court to grant relief… [that] the plaintiff seeks” [at 56]. The absence of a “right to relief” may render the matter non-justiciable [at 77]. As Hayne J in McBain explained:

The ‘interest’ of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed…” Thus, if relief is not available that will relate to the wrong which the applicant for relief alleges, there is no immediate right, duty or liability which will be established by the court’s determination [and]… “there can be no ‘matter’ [at 244].

This requires the Court “to carefully examine the particular grounds… on which the specific relief is based” [Hicks at 30]. The relief sought must be “appropriate” [Woodward at 71].For example, the Court may be more able to grant declaratory relief (as per Hicks) rather than specific performance of an obligation [at 80]. If the plaintiff is unable to demonstrate a right to the relief claimed, the matter will not be justiciable [Woodward at 41-42].

Nature of the interest

In Woodward, Mason J noted that “redress is achievable in… Court… by any person with sufficient interest” [at 65]. The interest of the plaintiff in the matter may raise justiciable considerations. As McHugh J in McBain explains the nature of the applicant will be pertinent, in particular “whether the applicant is a stranger [or] a person aggrieved” [at 95]. As McHugh J further explains, “a stranger’s lack of standing will frequently result in the Court refusing to [adjudicate]… on discretionary grounds. If the applicant is not a person aggrieved, the court will consider ‘whether the interest of the applicant is so small, or his grievance so like that of the rest of Her Majesty’s subjects, as to leave no sufficient ground’” for judicial review [at 109]. By contrast, as noted by Tamberlin J in Hicks, if the impugned decision “affect[s] the interests of a plaintiff”, it will usually render the matter justiciable [at 27].

Conclusion

The issue of justiciability, as the cases disclose, “is very much a part of current Australian administrative law” (Finn 2007). The categories by which a matter will be considered non-justiciable, however, are not conceptually clear. In light of this, Finn argues that the concept of justiciability should be replaced by a simpler “ground of review” analysis, whereby the Court “need simply ask whether one or more grounds of review can be made out” or whether “any legal error can be demonstrated” (Finn 2002). Finn’s rationale is that “conceptual clarity is always to be preferred [over]… a confused amalgam of rationales” (Finn 2002). By contrast, Harris advocates the retention of the concept of justiciability, arguing that that the “advantage of non-justiciability as a tool of analysis is that it invites a ‘big picture’ constitutional appreciation of whether or not the decision is an appropriate one for the courts” (Harris 2003). Though Harris also notes that “its definition, rationale, and application are not precise” (Harris 2003).

What is required is a clear statement from the Courts on the criteria of non-justiciability so “as to maintain community confidence in the line which is being drawn” (Harris 2003); a step from pure discretion to the application of sound criteria. Until such a time, the preceding factors represent the current trend as to the circumstances in which Australian courts will be prepared to engage in judicial review.

REFERENCES

Creyke, Robin, and John McMillan, Control of Government Action: Test, Cases and Commentary (Butterworths, 2nd ed, 2009)

Finn, Chris, ‘The Justiciability of Administrative Decisions: A Redundant Concept?’ (2002) 30 Federal Law Review 239

Finn, Chris, ‘The Concept of ‘Justiciability’ in Administrative Review’ in Matthew Groves and Hoong Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 143

Fuller, Lon, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353

Harris, Bruce, ‘Judicial Review, Justiciability and the Prerogative of Mercy’ (2003) 63 Cambridge Law Journal 631

Waye, Vicki, ‘Justiciability’ in Vicki Waye and Michael Harris (eds), Administrative Law (Federation Press, 1991) 47

Masochists

Sat, 16 Mar 2013 00:33:42 +1100

homo-online:

Why do heterogays care so much that the pope rejects them? All this boo-hooing that the pope is anti-gay like it’s a big change! As if he and his church are right about anything?!? The real issue here is that the Normals want to belong and be accepted, even by hideous people. For ourselves, and this goes for all the mullahs, rabbis and ministers too: we reject you and your “god” and all his works! Who the fuck cares what he thinks of us?

Casenote: Weeks v Commissioner of Taxation [2013]

Sat, 02 Mar 2013 11:51:58 +1100

Catchwords: TAXATION – appeal from primary judge dismissing appeal from Administrative Appeals Tribunal – whether failure to identify question of law – self-represented litigant

In Weeks v Commissioner of Taxation [2013], the Full Court of the Federal Court of Australia considered an appeal against a ruling of Federal Court that an appeal against a decision of the Administrative Appeals Tribunal be dismissed (in essence, an appeal against the dismissal of an appeal).

In considering the matter, the Full Court made some important observations about the distinction between questions of law or fact as they are relevant to appeals against tribunal decisions [2]:

s 44 of the Administrative Appeals Tribunal Act 1975… provides for an appeal to this Court from the Administrative Appeals Tribunal (the Tribunal) on a question of law. It is well established that the presence of a question of law goes to the existence of, and delimits the scope of, the jurisdiction conferred on the Court by s 44 of that Act.

The Court noted that it could not “revisit findings of fact made by the Tribunal… because there is “no error of law simply in making a wrong finding of fact”: Waterford v Commonwealth [1987]” [3].

Due in part to the appellant’s difficulty in identifying questions of law (perhaps because she was self-represented), the appeal was dismissed and the decision of the Tribunal at first instance affirmed.

The Australian Consumer Law

Wed, 27 Feb 2013 12:28:00 +1100

In July 2010, the former Trade Practices Act Part 5 was incorporated into the Competition and Consumer Act Schedule 2 (the Australian Consumer Law (ACL)). Under the Australian Consumer Law and Fair Trading Act 2012 (Vic) s 8(1), the ACL text applies in Victoria as of 1 July 2012.

Under this split jurisdiction, cases may be brought against corporations in the Federal Court or Federal Magistrates’ Court, and against individuals in the Victorian Supreme, County or Magistrates’ Courts or VCAT (with some exceptions).

Cases may be brought by the regulator – ACCC (Commonwealth) or Consumer Affairs (Victoria) – or a ‘consumer’, that is, a person (which includes an individual, partnership or corporation) who has acquired goods and services <$40,000 or for personal, domestic or household use or consumption (s 3(1), (3)).

Some interesting aspects of the new consumer law are listed below:

Unfair contract terms

The provisions relating to unfair contract terms (ss 23-28) came into effect on 1 July 2010.

The provisions apply to consumer contracts in a standard form.

A consumer contract is a contract for:

(a) the supply of goods or services; or
(b) a sale or grant of an interest in land,
to an individual whose acquisition of the goods, service or interest is wholly or predominantly for personal, domestic or household use or consumption.(s 23(3))

It generally applies to a business-to-consumer contract and not a business-to-business contract; however, an ‘individual’ may be a sole trader.

A standard form contract is not defined in the Act. However, it will typically be a contract that has been prepared by one party to the contract and is not subject to negotiation between the parties - that is, it is offered on a ‘take it or leave it’ basis. In determining whether a contract is a standard form contract the court must take into account:

the bargaining power between the parties
whether the contract was prepared by either party before any discussion
whether either party was required to either accept or reject the contract outright
whether either party was given an opportunity to negotiate
whether specific characteristics of the parties or the transaction were taken into account in drafting the contract (s 27(2)).

There is also a rebuttable presumption that a consumer contract is a standard form contract (s 27(1)).

A term of a standard form consumer contract is unfair if:

(a) it would cause significant imbalance in the parties’ rights and obligations arising under the contract; and
(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on (s 24(1))

If a term is found to be an unfair term, it is void and thus unenforceable (s 23(1)).

Consumer guarantees and warranties

Under the ACL, consumer guarantees replace implied terms, they include:

Supplier and manufacturer guarantee:

acceptable quality (previously merchantable quality) (s 54)
match description (s 56)
honour of express warranties, including a warranty against defects (s 59)

Supplier guarantees:

clear title (unless otherwise stated) (s 51)
right to undisturbed possession (s 52)
no undisclosed securities (s 53)
fitness for any disclosed purpose (s 55)
match sample or demonstration model (s 57)

Manufacturer guarantees:

repairs and spare parts (s 58)

Service supplier guarantees:

due care and skill (s 60)
fitness for any specified purpose (s 61)
reasonable time for supply, if no time is set (s 62)

If the goods or services are found to not meet the guarantees, the consumer may obtain a refund or exchange (s 64A(1)).

** This post draws from a presentation by Professor Justin Malbon of Monash University and Bill Reid of Ashurst on the Australian Consumer Law, and earlier postings on the topic on this blog

Casenote: 1200151 [2012]

Fri, 22 Feb 2013 20:27:00 +1100

An earlier post considered the sometimes extraordinary lengths some refugee applicants will go to to prove that that they have a well-founded fear of persecution.

In that case, a visa applicant tendered to the Department of Immigration (DIAC) sex tapes of himself and another man to prove that he was, indeed, homosexual and therefore feared persecution in his home country on the grounds of his sexuality. However, DIAC appears to be increasingly sceptical of whether visa applicants are homosexual, which has lead to some rather extraordinary decisions which have been upheld in the Refugee Review Tribunal (which currently affirms almost two thirds of all DIAC decisions).

In 1200151 [2012], a Mongolian applicant alleged that he was bisexual. However, DIAC and the Tribunal found that the applicant was not bisexual. on the basis that:

the applicant was in “cohabitation with a female” and had been for some years (though the relationship was not sexual) [42], [100]-[101]
the applicant had “a previous marriage” [42], [100]
“the applicant fathered [two] child[ren]” [42], [100]
in DIAC’s decision, “the applicant had had no contact with gay organisations in Australia” [42] and, in the Tribunal’s decision, the applicant had “not established any relationships… either on a platonic or intimate way with any men in Australia” [100]

However, the Tribunal either ignored or dismissed evidence by the applicant that “he had previously married… under pressure from his parents” [34], divorced, then “began a relationship with another woman… [but] had no sexual contact until they decided to ‘show them that they were normal’, and they decided to have a child” [37], but it and the marriage was “a fake relationship” [82] as, according to the applicant, “all gay and bisexual men get married because they cannot live openly or freely and have no other choice” [83].

When questioned why he had no sexual relations with men in Australia, the applicant “testified that he is going through medical treatment and is careful not to spread his disease to others; his treatment also suppresses his sexual feelings and causes impotence” [61]. Furthermore, “because of his treatment he cannot meet other people and does not want to put himself in an awkward position where he would have to disclose his medical condition” [69].

The DIAC and Tribunal decisions represent a startling lack of understanding of sexuality. Firstly, it is quite possible that a bisexual man would have long-term intimate relationships with women and have children by these relationships. The applicant was not claiming that he was homosexual, but bisexual. Secondly, it is quite reasonable for a bisexual man in the applicant’s situation to not have sexual relations with another man. The applicant did have an sexually-transmitted disease and was conscious of potentially spreading it. Finally, it is quite understandable that a queer migrant may not have contact with gay organisations in the country. Having come from a country where most gay and bisexual men hide their sexuality, the applicant would naturally have been timid about openly declaring his. Before applying for the visa, he had only ever told his current (female) partner about his sexuality.

Having not been granted a visa, the man may now faces the situation of, having publicly declared his sexuality, returning to Mongolia to face his family and local community - a situation which, by his testimony, he gravely feared.

"A law court has its own peculiar power of attraction, don’t you think?"

Fri, 22 Feb 2013 19:10:17 +1100

“A law court has its own peculiar power of attraction, don’t you think?”

- Franz Kafka, The Trial

Casenote: James v Robinson [1963]

Fri, 22 Feb 2013 18:58:00 +1100

CATCHWORDS: Contempt of Court - Contempt committed out of court - Summary jurisdiction of Supreme Court - Publication of matter likely to affect criminal trial - Proceedings imminent but not commenced at time of publication.

In these times when the sub judice rule is being bandied about, it may be useful to reflect on some cases where the extent of commentary about legal proceedings amounting to contempt is debated by the courts.

James v Robinson [1963] concerned the publication of a report of two killings in a newspaper, as described by the court [2]:

The articles clearly identified Robinson as the gunman and it was related that after killing two named persons in public places and threatening others he had secreted himself in a pine plantation… The articles purported to report the accounts of various eye witnesses and it was said that an intensive “manhunt” was in progress at the time… Each account commenced with a banner headline, the first being “TWO MURDERED BY GUNMAN AT BELMONT” and the second, in even larger type, “2 MURDERED”. Each account featured some photographs and in the latter issue was a photograph of the respondent as the “hunted” man

The majority of the High Court (Kitto, Taylor, Menzies and Owen JJ) held that “the publication of the reports in question did not amount to contempts since, in fact, no relevant proceedings were then pending before the Court” [4], but Windeyer J in a concurring judgment went further.

His Honour stated [5]:

If the identity of a person who did a criminal act is in doubt, or could come in question at a trial, then obviously it is unlawful to publish… that a particular person is the criminal. And, similarly, the publication of the photograph of an accused person may be harmful to a fair trial… But in this case there could be no question that Robinson was the assailant… I do not think it could be unlawful to state that two persons had been seen to be shot dead, that the man who shot them was - the fact being beyond dispute - a named person who was at large and sought for by the police... Does it make any difference that the persons who met violent deaths were said to have been murdered? I do not think so. Of course, a homicide might not be the crime of murder; and a killer could not properly be called a murderer until he was found guilty. He might not be found guilty: he might be insane: the circumstances might make the homicide manslaughter. Nevertheless, I do not think that simply saying that a person, violently killed, was murdered necessarily amounts to an assertion that the killer was guilty of the crime of murder.

What can be gleaned from this case is that:

the sub judice rule only applies once proceedings are “pending before the Court”
if the identity of a person who did a criminal act is in doubt, it is unlawful to publish (a) that an accused is the criminal and (b) any photographs of an accused
if the identity of the person is not in doubt, it is not unlawful to publish that an accused is the criminal
if the facts of the crime are not in doubt, it is not unlawful to publish the crime by its name (eg ‘murder’ instead of ‘killing’), even if the accused could argue a defence

Casenote: Kahlil v Sturgess [2005]

Mon, 28 Jan 2013 19:01:00 +1100

Catchwords: ANTI-DISCRIMINATION - racial vilification - whether respondents’ conduct grounded on race and otherwise constitutes racial vilification - what orders should be made - Racial and Religious Tolerance Act 2001 s7

In a lovely conversation with @CatlinWells the other day about racism, Catlin was shocked that a person called a nigger was awarded $1000 by VCAT in compensation for “hurt feelings” arising from this comment. Ever so curious, I looked up and eventually found this case, Kahlil v Sturgess [2005]. It turns out the complainant was called a lot more than nigger and suffered a lot more that hurt feelings. As to whether they were entitled this amount in damages (which in fact totalled $7000 for the all the comments made against the complainant and his wife by the respondent and her partner), you be the judge.

Dr and Mr Khalil and their children were next-door neighbours of Ms Sturgess, Mr Wallace and their children [24]. Both their properties adjoined a lake and their backyards were separated by a short, wire mesh fence [25].

Over the period October 2003 - May 2004, Ms Sturgess, Mr Wallace and their children made a number of derogatory comments to the Khalils:

On 11 October 2003, Mr Wallace and Ms Sturgess shouted that the Khalils were “ugly monkeys”, “import fish” and “possums”; their children also said to to the Khalils that they were “ugly monkeys” [28]
Three days later, Mr Wallace twice shouted at the Khalils, “Fucking Arabs” [29]
Two days later, while Mr Khalil and his son were kayaking on the lake, Mr Wallace shouted at them across the lake, “I should get a shotgun. Did you hear the politicians? If you don’t like Australian law, get out”; Dr Khalil also heard Mr Wallace tell another neighbour that if he had keys to a boat he would run them over; their children shouted to the Khalils, “Bye bye, monkeys” [30]-[31]
Two days later, Ms Sturgess photographed the Khalils with a video camera as they were in their backyard, and her and Mr Wallace made loud comments, saying, “Feral fish”, “elephant fish”, “monkey fish”, “fucking feral monkeys, get the fuck out”, “elephant fish, I’ll get you when you least expect it”, “those elephant fish stick their head up their arse and walk away ‘cos they don’t have balls”, “”If you don’t like Australian law, get out or get the fuck out or get back to where you came from, what’s left of it”, etc [32]-[33]
Six days later, Mr Wallace yelled at Dr Khalil, “Fucking Arabs, get out” [36]
There was some respite, then, on 4 November, Mr Wallace loudly called the Khalils “ugly monkeys” and “imports” [37]
Four days later, as the Khalils were in their backyard Ms Sturgess and Mr Wallace yelled at the Khalils, “Bloody feral”, and blasted loud music from loudspeakers pointed in their direction at them [38]
After some more respite, on 23 November, Ms Sturgess yelled at the Khalils “Fucking ferals, get the fuck out” [39]
Three days later, as Dr Khalil was driving into her driveway, Mr Wallace stood at the gate holding his crotch in both hands, and repeated over and over in a loud voice, “Suck my cock” [40]
Another break, then, on 7 December, Mr Wallace repeated loudly, “They’re what you call Arabic, that’s why people don’t like them, they’re black as they come, twice over” [41]
The next week, Mr Wallace said to the Khalils, “Fucking Arabs, you are fucking as black as fucking next door” and “Black Arabs, fucking black Arabs, shut up fucking Arabs. Chuck them out” [42]
Another break, then, on 29 December, Mr Wallace shouted loudly at the Khalils, “Black Arabs” [43]
Two days later, on New Year’s Eve, Mr Wallace and Ms Sturgess referred to the Khalils as “Arabs” and immediately added, “Look at this shit around here, there’s a lot of shit around here” [44]
On 10 January 2004, Ms Sturgess said in Dr Khalil’s hearing, “I think they’re nothing but scum” [45]
On 26 January 2004 at about 12.35am, on the Khalils returning home and while they were parking their car, Mr Wallace shouted at them, “The ferals are back, fucking ferals” [46]
On 16 February 2004, as Mr Khalil was walking past Mr Wallace said loudly, “The fucking next door Arab is here… [H]ere is the unemployed next door. When we get rid of him we will be laughing” [47]
On 8 March 2004 as Dr Khalil arrived home with her daughter, Mr Wallace shouted, “Black Arabs, fucking next door. When we get rid of them out of the street we’ll be laughing” [48]
On 14 March 2004 while Mr Khalil and his son were returning from kayaking, Mr Wallace shouted at them “Ugly monkey” over and over until they escaped into the house [49]
On 22 May 2004, Mr Wallace shouted at the Khalifs, “Sand niggers” [50]

As can be seen, the “niggers” comment came after a series of derogatory comments directed to the Khalils over the period of eight months. The comments also caused more than hurt feelings. As Deputy President McKenzie noted [56]-[57]:

Mr Khalil’s evidence is that he and his family were greatly upset by Mr Wallace and Ms Sturgess continuing and sustained abuse, that it disrupted his family life, embarrassed him and his wife in front of their guests and affected his work performance… He saw a psychologist once but has since tried to cope with the effects of this abuse himself.

The evidence is that the effect on Dr Khalil is greater. She has seen a psychologist and a psychiatrist… She continues to take medication…. She describes what happened as “heartbreaking”, and as having a major effect on her self-esteem and her work performance

Deputy President McKenzie found that Ms Sturgess and Mr Wallace had breached the racial vilification provision in s 7(1) of the Racial and Religious Tolerance Act 2001 (Vic), which states that a “person must not, on the ground of the race of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.” Relevantly, Deputy President McKenzie noted that “motive is irrelevant” in determining a breach [15] (thereby combatting the silly argument - used by some - that the comments weren’t intended to be malicious).

In arriving at the sum of $7000 (being the total of Mr Wallace paying $3000 to Dr Khalil and $2000 to Mr Khalil and Ms Sturgess paying the much vaunted $1000 each to Dr and Mr Khalil), the Deputy President stated [58]:

Taking into account the very serious and persistent nature of the respondents’ abuse, the need not to trivialise what has happened, the objectives of the Act which include to promote participation in a multicultural society, and the great disruption and humiliation caused to the Complainants by the conduct of the respondents, I consider that appropriate damages are those which I have set out in my order.

The couple was also ordered to make a formal apology to the Khalils [59].

To me, this seems an appropriate - if not a little ungenerous - response to the persistent abuse and vilification suffered by the Khalils. But if you believe this is a simple case of a $1000 payout over hurt feelings, well, each to their own.

Casual Racism: Straya, Dick Smith, and Racist Jokes

Fri, 25 Jan 2013 01:49:22 +1100

sunili:

Dick Smith is a bit of a tool but he made this ad for his food products for Straya Day and it’s awful and racist and you can google it if you want but I sure as hell will not be linking to it.

I contacted the director of the ad via Twitter and engaged in a bit of discussion about how problematic it was. He responded, firstly by calling me “Sunil”, EPIC AWKWARD TURTLE, but then saying that the ad wasn’t racist because there was no malicious intent to be racist.

This was my response to him.

Read More

Casenote: Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013]

Tue, 15 Jan 2013 23:53:00 +1100

Catchwords: ADMINISTRATIVE LAW— Judicial review — Decision under s 74B(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — Whether Minister erred in considering material not included in referral — Consideration of text, purpose and context of provision — Information in referral is the foundation for the decision — Minister not restricted from taking into account his and his Department’s knowledge in scrutinising a referral — No error — Administrative Decisions (Judicial Review) Act 1977 (Cth)ss 5(1)(c), (d), (f). — Whether Minister erred in failing to provide opportunity to comment on materials considered — Provisional nature of decision — Where procedural fairness is provided by reconsideration process — No error — Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a), (c)

In accordance with a promise made at the past state election, the Victorian government recently proposed to allow cattle grazing in Victoria’s alpines ostensibly as a bushfire management technique. As this would constitute a ‘controlled action’ under federal environment legislation, the state government referred the proposal to the federal environment Minister. The Minister rejected the proposal on the grounds that it would have “clearly unacceptable impacts” on the environment.

In Secretary to the Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013], the state government sought a review of that decision and “relief under s 39B of the Judiciary Act, through the writs of certiorari and mandamus, and the setting aside of the challenged decision under s 16 of the ADJR Act” [28].

The state government firstly argued that the Minister could only make the decision “on the basis of information that was… in the referral” [29] and was thus prevented “from drawing on his own and his Department’s knowledge in making the challenged decision” [53].

In considering whether the Minister could rely on extrinsic information, Kenny J made two key observations: (1) that the “court must have regard to the text and general purpose of the provision, considered in the context of the statute as a whole: see, for example, P roject Blue Sky Inc v Australian Broadcasting Authority [1998]” [55]; and (2) “[i]n discharging ministerial duties, a minister necessarily obtains information and advice from the officers of his department: [see] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986]” [81] and is thus “generally speaking… entitled to rely on the knowledge and expertise of officers of the [relevant] Department” [84].

Her Honour could find nothing in the “text, purpose and balance of the statutory context” of the federal environment legislation to “support the applicant’s submission that Parliament did not intend the ordinary position to prevail” [84]. From this we can conclude that there is a prima facie position that a Minister can rely on departmental information and advice, and this position can only be displaced by a statutory indication to the contrary. There being no such contrary indication on this occasion, the state government’s submission failed on this ground.

The state government secondly argued that “even if the respondent was entitled to have regard to information that was not in the referral, he was entitled to an opportunity to comment on this material, and the respondent had breached obligations of natural justice in failing to afford him this opportunity” [89]. As her Honour noted “the hearing rule requires that a person likely to be affected by a decision be given an opportunity to “deal with adverse information that is credible, relevant and significant to the decision to be made”: see Kioa v West [1985]” [90].

The state government had a statutory right to review of the decision, but argued that they should have been heard in the original making of the decision. In considering whether the hearing rule applied to the decision in question, Kenny J considered the relevant case law [93]:

In Miah, McHugh J described some of the factors that the courts have considered relevant in determining whether or not a statutory right of appeal or review excludes or limits natural justice requirements. In particular, his Honour referred to whether the initial decision was a preliminary or final decision; whether the initial decision was made in public or private; the formalities required for making the initial decision; the urgency of the initial decision; the nature of the appellate body; the breadth of the appeal; and the nature of the interest of the person concerned and the subject matter of the legislation.

However, “a number of these factors militate[d] against the applicant’s basic contention” that they had a right to a hearing [94], including the “preliminary or provisional nature of [the] decision” [97], the fact that the Act provided for “reconsideration” of the decision akin to a hearing de novo [99], the fact that the decision had to be timely [102], and the fact that the state government had other options available to it including to “submit a modified proposal” [103]. Therefore, while there was no right to “appeal to a court or other independent body”, the other factors indicated that the Minister was not under a duty to provide a hearing [104].

In considering whether a statutory right of review displaces the right to a hearing, it is thus necessary to consider the Miah factors in light of the relevant statute. In considering the factors as a whole, which is necessarily a weighing act, the statute in question did not provide the state government with the right to a hearing.

The state finally argued that, in making the decision, the Minister had “relied on unacceptable… matters” or, in other words, irrelevant considerations [29].

In dismissing this ground, Kenny J noted, inter alia, that if the matters “could not have affected the outcome of the respondent’s decision… the supposed errors with respect to them do not entitle the applicant to the relief he seeks: see Australian Broadcasting Tribunal v Bond [1990]” [160]. Put another way, if, absent the irrelevant consideration, the impugned decision would still have been made, there is no error [161]. Because of this, the state government’s submission on this ground failed.

The state government’s submissions against the decision all having failed, the application for review was dismissed [179]. However, the decision, while not favourable to the state government affected, does represent a significant consideration of the grounds of review in administrative decision-making.

"Drama has a greater power than any other living art-form to make direct contact with the minds and..."

Wed, 09 Jan 2013 11:43:00 +1100

“Drama has a greater power than any other living art-form to make direct contact with the minds and emotions of the people. Therefore, the drama’s use in social criticism, its potential influence in reflecting and pointing community ideals and welding the people into a wholesome unity cannot be overestimated.”

- Leslie Rees, Towards an Australian Drama (Angus & Robertson, 1953) 160-161

Casenote: Westend Asset v Deputy Commissioner of Taxation [2012]

Fri, 04 Jan 2013 13:19:54 +1100

Catchwords: TAXATION – application made under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand – whether there was a genuine dispute as to the claimed debt – whether the debt was “due and payable” under s 459E (1)(a) of the Corporations Act 2001 (Cth) - whether there was a statutory exception under s 105-50(3)(b) of Sch 1 of the Taxation Administration Act 1953 (Cth)

Section 459E of the Corporations Act 2001 (“the Act”) enables a creditor to serve on a debtor company a demand with respect to debts owed by the debtor to the creditor.

Under s 459G(1) of the Act a debtor company served with a statutory demand may apply to the court for an order to set the statutory demand aside.

Such an application must be made within 21 days after the service of the statutory demand (s 459G(2)). The application is required to be supported by a supporting affidavit, which is to be filed with the Court and served on the creditor (s 459G(3)).

In Greenway Hotel Pty Ltd v Parton [2004], the Court noted that an affidavit filed in the application must support the application [44]. The Court referred to the four grounds which, if made out, could lead to the setting aside of a statutory demand [45]. Those grounds are:

(1) there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates: s 459H(1)(a);

(2) the company has an offsetting claim: s 459H(1)(b);

(3) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside: s 459J(1)(a); or

(4) there is some other reason why the demand should be set aside: s 459J(1)(b).

In Westend Asset v Deputy Commissioner of Taxation [2012], the plaintiff was served with a statutory demand and applied to have it set aside on the grounds that there was a genuine dispute as to the amount of the debt claimed by the Commissioner [1].

Even though the plaintiff had lodged an objection to the Commissioner’s tax assessments [2], the statement attached to the statutory demand is prima facie evidence that the debt claimed is correct (per s8AAZI of the Taxation Administration Act 1953) [4]. Further, as this proves both the existence and amount of the debt, there can be no genuine dispute as to its existence or amount [5]. As the High Court said in Deputy Commissioner of Taxation v Broadbeach Properties [2008]:

[The] production by the Commissioner of the notices of assessment… conclusively demonstrates that the amounts and particulars in the assessments and declarations are correct. That being so, the operation of the provisions in the taxation laws creating the debts and providing for their recovery by the Commissioner cannot be sidestepped in an application by a taxpayer under s 459G of the Corporations Act to set aside a statutory demand.

Counsel for the plaintiff accepted the decision in Broadbeach, but argued that “the amount in the statutory demand is “due” but… not “payable” because recovery of the debt is time barred by reason of s 105-50(1)” of the TAA, which provides that certain unpaid debts cease to become payable four years after they become payable [7]. The Commissioner, however, sought to rely on an exception whereby the debt is payable if “avoided by fraud or evaded” (s 105-50(3)(b)) [9]. This was the central issue of the case.

The plaintiff argued that the assessments did not allege fraud and that the only allegation of fraud was in an affidavit in opposition to the application to set aside the statutory demand in which an ATO officer stated: “I am informed and verily believe that… the Commissioner formed an opinion that there was fraud or evasion” [10]. The plaintiff argued that this statement was inadmissible hearsay [11]. However, Gilmour J held:

Section 76(1) [of the Evidence Act 1995] renders inadmissible… evidence of an opinion to prove the existence of a fact about the existence of which the opinion was expressed. [The statement] does not contain an opinion of the deponent as to a fact. Rather, it deposes to the fact, relevantly, that she has, on grounds stated, a belief that the Commissioner was satisfied that the unpaid net amount of tax in this case was avoided by fraud or evaded. Her evidence of the fact that the Commissioner was relevantly satisfied is admissible.

The plaintiff further argued that “no evidence has been tendered in support of the basis upon which the Commissioner’s opinion was formed” [12], such as, eg, business records setting out his opinion [16], which would be required to prove the debt. However, Gilmour J found that “[s]ection 105-50(3)(b) is… concerned with the fact that the Commissioner is “satisfied” and not about his “opinion”” [14]. Further [18]:

for the purposes of s 105-50(3)(b), the Commissioner need only be “satisfied” that the payment of the amount was avoided by fraud or evasion. That state of being satisfied has been established by the evidence of the Commissioner adduced through [the affidavit]. No more is required. Curial standards of proof in adversarial proceedings do not apply.

His Honour therefore found there was no genuine dispute and the statutory demand still stood [19].

Response: Peter Slipper did NOT sexually harass James Ashby

Thu, 03 Jan 2013 15:21:00 +1100

In a piece in Independent Australia, Margo Kingston claims that “Justice Rares made it very clear in his judgement [in Ashby v Commonwealth] that Peter Slipper did not sexually harass James Ashby”, a claim which she reiterated in a tweet referring to the piece. That claim is incorrect and misrepresents Justice Rares’ findings.

Justice Rares’ judgment was on an application to have the proceedings dismissed as an abuse of process [3]. Critically, his Honour did not make any findings on the allegations of sexual harassment; his Honour’s findings only went to the question of whether the proceedings should be dismissed as an abuse of process. As his Honour said: ”It is not necessary to make any finding… about whether Mr Slipper did sexually harass Mr Ashby in any of the ways alleged” [196].

The statements quoted in Kingston’s piece are obiter, not the reasons for his decision. However, I do note that Rares J also stated (in obiter) that “Mr Slipper’s conduct in some of those text messages is capable of being characterised as sexual harassment” [32].

Kingston also states that “[t]he major evidence of sexual harassment was text messages on February 1, 2012, where it was alleged that Slipper propositioned Ashby and Ashby rejected his advances.” However, Mr Ashby further alleged instances of inappropriate touching, nude displays, uninvited enquiries about his sexual habits and requests for kissing, which are addressed throughout the judgment [22]. Kingston claims that “an unsuccessful advance is not harassment”, which is incorrect and also not supported by Rares J’s findings (see also, Poniatowska v Hickinbotham [2009] where the Federal Court found that an unsuccessful request for sexual favours amounted to sexual harassment). As stated, Mr Ashby was subjected to much more than a mere advance and, even if he was not, a sexual advance/s could give rise to a claim of harassment. However, it was not for Justice Rares to determine this, nor did he.

While it is refreshing to see some analysis being offered on the Ashby case, Kingston’s central argument that Justice Rares found against Mr Ashby’s claim of sexual harassment is a misconceived view of the judgement.

Casenote: OW & OV v Members of the Board of the Wesley Mission Council [2010]

Thu, 03 Jan 2013 10:58:27 +1100

Catchwords: Equal Opportunity – discrimination on ground of homosexuality – religious exception

An earlier post considered provisions against LGBTIQ discrimination under the state anti-discrimination statutes (in my home state of Victoria). This post considers the religious exceptions under the statute.

OW & OV v Members of the Board of the Wesley Mission Council [2010] concerned a same-sex couple who contacted a Wesleyan family care group to enquire about becoming foster carers. They were told they would not be permitted to apply because of their homosexuality. The couple alleged that they were discriminated against, but the Council argued that they were exempt from the discrimination law on the ground of their religious belief [at 4].

Section 56(d) of the Anti Discrimination Act 1977 (NSW) provides an exemption from the statute to:

any… act or practice of a body established to propagate religion that

confirms to the doctrines of that religion or

is necessary to avoid injury to the religious susceptibilities of the adherents of that religion

The tribunal accepted the dictionary definition of ‘doctrine’ as a “particular moral or religious principles taught or advocated” [at 32-33] and held that “while there is no relevant doctrine of the Uniting Church [on homosexuality] which would bind the Wesley Mission the Mission itself is entitled to propagate its own doctrine on the subject of homosexuality… by… means not amounting to the formal pronouncement of a ‘doctrine’” [at 33]. The tribunal found that the Mission’s principles and teachings on homosexuality - namely, according to evidence of Dr Garner, the CEO of Wesley Mission, that “heterosexual partnership within marriage is both the norm and ideal” and “the fostering of children to same sex partnerships… would… conflict with [this] ideal and norm” [at 18] - “constitute a ‘doctrine’ within the meaning of s 56” and therefore “the first limb of s 56(d) is satisfied” [at 34].

The tribunal also found “that the second limb was made out” [at 34] because, according to Dr Garner, “[i]f Wesley Mission was required to appoint homosexual foster carers, this would make [the] provision of foster care services unacceptable to those who support the ethos of Wesley Mission” [at 18]. This was despite the fact that Dr Garner admitted in oral evidence that single gay foster parents would not cause a problem [at 19].

The tribunal did not have regard to the decision in Cobaw Community Health Services v Christian Youth Camps [2010] “[i]n view of the fact that the decision is subject to appeal and… deals with issues somewhat different from those before us” [at 36].

Cobaw concerned section 75(2) of the Equal Opportunity Act 1995 (Vic) which provided a defence for:

anything done by a body established for religious purposes that -

(a) conforms with the doctrines of the religion; or

(b) is necessary to avoid injury to the religious sensitivities of people of the religion

In this case, a community health organisation that ran a youth suicide prevention program targeting same sex attracted people contacted a Christian Brethren-run adventure resort to enquire about booking the resort for a forum on the program. The resort refused to take the booking because of the sexual orientation of the proposed attendees. The organisation complained of discrimination, and the Camp argued they were exempt on the above ground [at 5-7].

Similarly to OW & OV the tribunal rejected that the religion was Christianity and accepted the argument that it was the Christian Brethren as a denomination of Christianity [at 259]. However, in contrast to OW & OV, the tribunal found that “doctrine refers to the core architectural statements of faith, or the body of teachings that describes the fundamental shape of that form or religious belief… proclaimed by ecclesiastical bodies as true” and rejected any wider notion of doctrine [at 288-289]. The tribunal found “plenary inspiration” from the scriptures was a doctrine of the religion [at 290]. However, the tribunal found that “it was not the doctrine of plenary inspiration itself, but the manner in which it is interpreted and applied to particular passages from the scriptures by the Christian Brethren which gives rise to their beliefs about marriage, sexual relationships or homosexuality” but “those beliefs do not constitute a doctrine of the religion” [at 306-307]. The tribunal thus adopted a more restrictive approach to doctrine.

The tribunal also rejected the second limb of the defence [at 324]. The tribunal found that “avoiding injury to [religious] sensitivities must involve respect for, or not treating with disrespect, those matters intimately or closely connected with, or of real significance to, the [religious] beliefs or practices of the adherents of the religion… [or] the doctrines of the religion” [at 330]. The tribunal found, however, that “[i]t is not part of the doctrines, beliefs or practices of the Christian Brethren that they avoid contact with people who do not share their religious beliefs, nor is it part part of their doctrines or beliefs that they must avoid contact with same sex attracted people” [at 343]. Furthermore, “the religious sensitivities of the Christian Brethren had not been injured by CYC’s conduct in permitting same-sex attracted people other than the WayOut group [from Cobaw Community Health Services] to stay at the adventure resort… [thus] [i]f it was not necessary to exclude other same sex attracted people… to avoid injury to the religious sensitivities of the Christian Brethren, then it was not necessary to exclude the WayOut group on that ground” [at 344]. The tribunal did not accept that the Christian Brethren could accept other same-sex attracted people but still be injured by the requirement to to accept the WayOut group.

The Equal Opportunity Act has since been amended to exclude belief-based conduct by religious bodies and religious schools that conforms with the doctrines, beliefs or principles of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of adherents to the religion (ss 82(2), 83(2)). However, the the holding in Cobaw that the Church’s views on homosexuality do not amount to a doctrine arguably still stands despite the amendment. The decision in Cobaw is currently under appeal, leave having been granted. It will be interesting to see the Supreme Court’s opinion on the matter in light of this conflicting authority.

"[B]linding [judges] to the nuances of social context… achieves results that popular will would..."

Mon, 24 Dec 2012 11:01:53 +1100

““[B]linding [judges] to the nuances of social context… achieves results that popular will would reject… ignores the preferences of affected parties and presents this indifference to its human consequences as a virtue.””

- Guyora Binder & Robert Weisberg, ‘Cultural Criticism of Law’ (1997) 49 Stanford Law Review 1149, 1151.

Casenote: SZQYU v Minister for Immigration [2012]

Mon, 24 Dec 2012 10:14:00 +1100

Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decisions affected by jurisdictional error by reason that it failed to consider corroborative evidence, failed to consider in one review evidence only adduced in another and failed to satisfy the applicants’ legitimate expectations.

An earlier post considered the emerging notion that legitimate expectations are not sufficient to give rise to an entitlement to procedural fairness. However, the recent case of SZQYU v Minister for Immigration [2012] may dispel that notion.

In it, Federal Magistrate Cameron stated [at 52]:

[I]n light of recent decisions it is difficult to see what work the concept of legitimate expectation has to do. It has been criticised as tending to direct attention to the merits of an administrative decision rather than to the interests which the exercise of power is apt to affect: South Australia v O’Shea [1987], as a doctrine for which there is no need: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003), and as an unfortunate expression which should be disregarded: Plaintiff S10/2011 v Minister for Immigration & Citizenship (2012).

However, his Honour concluded that [at 51]:

Although the Minister formally submitted that that concept had no place in the law of procedural fairness, the statement of the law in Minister for Immigration & Ethnic Affairs v Teoh [1995] has not been overruled and so that particular submission must be rejected.

Therefore, the doctrine of legitimate expectation still lives! However, the doctrine is subject to much criticism and, as Cameron FM pointed out, does “not [entitle the applicants] to have their unprompted subjective expectations satisfied” [at 53]. It merely means that if the applicant has a legitimate expectation, procedural fairness must be accorded to them in light of this.

The Court also discussed some further elements of judicial review further.

The applicants were two Bangladeshis who alleged that they were in a homosexual relationship. They lodged applications for protection visas with the Department of Immigration, alleging that they feared persecution in Bangladesh because of their sexual orientation. Their applications were refused by a delegate of the Minister. The applicants then applied to the Refugee Review Tribunal for a review of the department’s decisions. They were unsuccessful before the Tribunal, and thus applied to court for judicial review of the Tribunal’s decisions.

The applicants alleged, further to their legitimate expectation that the Tribunal would accord them procedural fairness, that “the Tribunal’s finding that [they] were not homosexual was ‘Wednesbury unreasonable’” [at 56]. However, the Court concluded that “[m]anifest unreasonableness of the sort considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] is relevant only to decision-makers’ discretionary decisions... However, the matters which the applicants raised in the context of manifest unreasonableness were factual findings, not discretionary decisions, and so the relevant question was not whether they were reasonable in the Wednesbury sense but whether there was evidence to support them. The applicants did not submit that the findings were not open on the evidence” [at 57]. The applicants’ appeal on this ground therefore failed as what they alleged was unreasonable was a finding which was open to the Tribunal/Minister on the evidence and not a discretionary decision.

However, the Court found that the Tribunal’s failure to view sex tapes of the applicants which had been provided to it “amount[ed] to a constructive failure to exercise jurisdiction and thus jurisdictional error” [at 65]. Therefore, the Court remitted the matters to the Tribunal “to be determined according to law” [at 67]. Essentially, the Court referred the matter back to the Tribunal so they could watch a sex tape. Lucky them.

Casenote: DPP v Patrick Stevedores Holdings; Victorian Workcover Authority v Patrick Stevedore Holdings [2012]

Sun, 23 Dec 2012 23:13:00 +1100

Catchwords: ADMINISTRATIVE LAW — Procedural fairness

The decision of the Victorian Court of Appeal in DPP v Patrick Stevedores Holdings; Victorian Workcover Authority v Patrick Stevedore Holdings [2012] is comprehensively summarised elsewhere. This post concentrates on the question of whether legitimate expectations give rise to an entitlement to procedural fairness.

The Court of Appeal used as its starting point the High Court decision in Annets v McCann [1990], where the court said:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

However, the Court of Appeal noted that this statement was affected by recent dictum of the High Court in Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012], where it was said that:

the phrase ‘legitimate expectation’ when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded.

The Court of Appeal held that, pursuant to this dictum, “there is no place for consideration of a ‘legitimate expectation’” [at 88] as “‘legitimate expectation’ is no longer part of the vocabulary to be used when considering procedural fairness” [at 119 n 92]. Therefore, the appropriate question is whether any right or interest (not legitimate expectation) has been affected by the decision in dispute.

This huge development in administrative law has gone largely unnoticed in much of the commentary surrounding Plaintiff S-10. What this would mean is that an applicant must show that they have a legal right or an interest in the decision, not merely a legitimate expectation that procedural fairness would be accorded to them in the making of it. This potentially narrows the scope of decisions to which the requirement to afford procedural fairness applies (unless a broad reading is given to ‘interest’). It will be interesting to see how other courts construe this dictum of the High Court and whether the predicted narrowing occurs.