IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA
DISTRICT REGISTRY
GENERAL DMSION
No. 96 of 1996
BETWEEN:
ALBERT
LANGER
Appellant
-and -
AUSTRALIAN ELECTORAL
COMMISSION
Respondent
SUBMISSION ON BEHALF OF THE HUMAN RIGHTS COMMISSION
A. JURISDICION
1. An appeal lies to the Federal Court from "a judgment or order of a prescribed court exercising jurisdiction ~der" section 383 of the Commonwealth Electoral Act 1918 ("the Electoral Act'): sections. 383(9). A prescribed court is defined in sub-section 383(11) to include the Supreme Court of Victoria.
2. On 8 February 1996 Mr Justice Beach made injunctive orders against Mr Langer pursuant to section 383 of the Electoral Act. In making those orders his Honour was exercising federal jurisdiction.
3. On 14 February 1996 Mr Justice Beach dealt with an application against Mr Langer for breach of the earlier injunctive orders made by him pursuant to federal jurisdiction. His Honour found that Mr Langer had breached the injunctive orders and that "if he [was] not prevented from doing so he [would] continue to breach" the injunctive order. His Honour concluded that in "that situation [Mr Langer] leaves me with no alternative but to sentence him to a term of imprisonment". The punishment of imprisonment was clearly for a breach of the injunctive order.
4. The application of 14 February 1996 was made in the same proceeding as the injunctive proceedings:
(a) the Court heading and proceeding number are the same;
(b) the parties are identical;
(c) the remedy sought and granted on 14 February 1996 was to enforce compliance with the injunctive orders of 8 February 1996.
5. An appeal from an order enforcing an injunction granted under section 383 is ancillary to the order and is itself an order within the contemplation of sub-section 383(9). An appeal from the enforcement order, therefore, lies to the Federal Court.
6. As a matter of construction it is unlikely that parliament intended to limit jurisdiction of the Federal Court to appeals from orders granting injunctions whilst compelling litigants to appeal to the Supreme Court from any enforcement (or ancillary, e.g. costs) order of the injunctive orders.
7. The inconvenient and unnecessarily cumbersome result that a litigant would be driven to two different forums to appeal from injunctive orders, on the one hand, and ancillary or enforcement orders, on the other hand, should not be adopted as a reasonable or likely interpretation of the appellate jurisdiction conferred by section 383 in the absence of the clearest words.
8. The presence of sub-section 383(9), and the absence of any provision directing appeals on enforcement orders to any other court, is consistent with a parliamentary intention to confer appellate jurisdiction broadly on the Federal Court over both the injunctive order and any ancillary or enforcement order relating to the injunctive order.
9. Alternatively, an appeal from the orders of 14 February 1996 is a matter within the jurisdiction of the Federal Court pursuant to section 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act"):
(a) the contempt order is a matter "arising under" the Electoral Act;
(b) the Electoral Act is an Act specified in the Schedule to the Cross- Vesting Act referred to in section 7;
(c) the provisions of the Cross- Vesting Act are to be interpreted liberally to facilitate the determination of disputes in one forum having jurisdiction;
(d) the Federal Court has jurisdiction to hear appeals from orders made under 18 section 383 of the Electoral Act.
10. Alternatively, the Federal Court has jurisdiction under section 4(2) of the Cross-Vesting Act.
11. Alternatively, the Federal Court has jurisdiction under section 32(2) of the Federal Court of Australia Act 1976 ("the Federal Court Act").
12. Federal jurisdiction under section 32(2) is attracted over matters not otherwise within the jurisdiction of the Federal Court. It is so attracted when the "non-federal" matter is "associated" with matters over which the jurisdiction of the Court is invoked.
13. The facts which gave rise to the contempt are an incident of the controversy that gave rise to the injunction -they are a repetition of the conduct constituting the supposed offence under section 329A. They are thus sufficiently "associated" to fall within the principles expounded in Fencott v. Muller (1983) 152 CLR 570, at p.607.
14. The associated jurisdiction is attracted, inter alia, where the controversy derives from "a common nucleus of operative facts" (Fencott at p. 607) and it is not necessarily that there be a whole coincidence of facts between the federal and non- federal claim: Fencott at p. 607.
15. The Federal Court must ask whether the proceeding determined on 8 February 1996 and that determined on 14 February 1996 are in substance "part of the one controversy". That inquiry depends upon "impression and [...] practical judgment": Fencott at p. 608; Stack v. Coast Securities (No.9) Ply Ltd (1983) 154 CLR 261, at p. 294.
16. Here the injunctive proceeding and the contempt proceeding are part of the one controversy:
(a) they arise from the same nucleus of operative fact;
(b) the latter is the means of enforcement of the former;
(c) the latter arises as a direct breach of the former;
(d) they depend upon the same statutory scheme.
B. SENTENCE
17. The Commission's submissions are limited to the issue of contempt and the severity of the sentence imposed by Mr Justice Beach and referred to in the Notice of Appeal dated 4 March 1996 at points 7 and 16.
18. The sentence of ten weeks for contempt of the orders of Mr Justice Beach is excessive, taking into account the nature of the offence and the context in which the conduct was sought to be restrained.
19. The Court is encouraged to take into account relevant international human rights instruments when exercising its discretion in respect to the imposition of a penalty and the nature of the penalty.
20. International instruments are relevant to Australian domestic law, inter alia -in, providing a legitimate and important influence upon the common law: Mabo & Ors. v. The State of Queensland (No.2) (1992) 175 CLR 1 per Brennan J at p. 42. In dealings with Commonwealth agencies there is a legitimate expectation that the Commonwealth will act in conformity with international instruments: Minister for State for Immigration & Ethnic Affairs v. Ah Hin Teoh (1995) 183 CLR per Mason CJ and Deane J at p. 287-288, Gaudron J at p. 304.
21. In the exercise of judicial discretion, Courts have indicated that it is appropriate to take into account international human rights instruments - Derbyshire County Council v. Times Newspapers [1992] QB 770, p. 812; [1992] 3 All ER 65 at p. 76 per Balcombe LJ and affirmed without reference to the point in [1993] AC 534, [1993] 1 All ER 1011.
22. The relevant international human rights instrument is the International Covenant on Civil and Political Rights(ICCPR) -article 19. The ICCPR is contained in Schedule 2 to the Human Rights and Equal Opportunity Commission Act (Cth) 1986.
23. Article 19(2) recognises an individual's right of freedom of expression:
"Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
24. The ICCPR is not directly enforceable in Australian domestic law. However, the High Court has recognised the importance of freedom of expression for the discussion of political matters or affairs, in doing so recognising that there is an implied guarantee of freedom of expression in the Constitution: Nationwide News v. Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v. The Commonwealth (1992) 177 CLR 106; Theophanous v. Herald & Weekly Times (1994)182 CLR 104, Cunliffe v. The Commonwealth (1994) 182 CLR 272.
25. Recently, it has been acknowledged that freedom of expression is protected in common law in a manner which accords with article 10 of the European Convention on Human Rights: Attorney-General v. Guardian Newspapers Pty Ltd (No.2) [1990] AC 109, at p. 178, [1988] 3 All ER 545, at pp. 596-597; Derbyshire County Council v. Times Newspapers [1993] 1 All ER 1011.
26. The right of freedom of expression is not absolute: Nationwide News v. Wills (1992) 177 CLR 1, at p. 50-53 per Brennan J, Deane and Toohey JJ at p. 79 and Gaudron at p. 94-95; Australian Capital Television Pty Ltd v. The Commonwealth (1992) 177 CLR 106 per Mason CJ at p. 142-144; Theophanous v. Herald & Weekly Times (1994) 182 CLR 104; Cunliffe v. The Commonwealth (1994) 182 CLR 272. See also Shelton v. Tucker 364 US 479, 488 (1960) and Bradenburg v. Ohio 249 US 444 (1969).
27. However, any restriction or limitation on the individual's right must be reasonable and proportionate to the aim it pursues. Further, the reasons which are said to justify the restriction must be relevant and sufficient: Commonwealth v. John Fairfax and Sons Ltd (1980) 147 CLR 39 at p. 52 per Mason J, see also Gouriet v. Union of Post Office Workers [1978] AC 435 and Home Office v. Harman [1983] AC 280,312 or [1982] 1 All ER 532.
28. The reasonableness and proportionality of the period of imprisonment imposed by Beach J is a measure which curtails an individual's rights under article 19(2) and must be measured against article 19(3) of the ICCPR:
"The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals."
29. There are three matters to be considered when determining whether the restriction imposed is reasonable and proportionate, namely:
(1) The restriction must be provided by law;
(2) Any restriction must service a legitimate purpose namely to protect national security or of public order (ordre public), or of public health or morals;
(3) The restriction must be necessary.
30. The restriction imposed by the Electoral Act on the freedom to impart information in respect of voting is that in section 240, section 329A and section 383 of the Commonwealth Electoral Act 1918 (Cth).
31. At best, the purpose of the restriction is to maintain public order.
32. The Commission submits that any such restriction on the exercise of fundamental human rights must be interpreted narrowly: Handyside v. United Kingdom 1 EHRR 737; Sunday Times v. United Kingdom 2 EHRR 245; Lingens v. Austria (1986) EHRR 103; Home Office v. Harman [1983] AC 280, 312 or [1982] 1 All ER 532 and in a manner which is consistent with respect for other fundamental human rights -the right to participate in public affairs (article 25 of the ICCPR): Hector v. Attorney-General of Antigua and Barbuda [1990] 2 AC 312, at p. 315; and the right to liberty, Foster v. R (1993) 113 ALR 1, Chu Kheng Lim & Ors v. The Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 CLR 1.
33. The imprisonment of the Appellant until 30 April 1996 for contempt of an order which expired on 2 March 1996 is manifestly excessive. The imprisonment was not a necessary measure to achieve the purpose of restraining the Appellant from encouraging Australian citizens to vote other than in accordance with section 240 of the Electoral Act. Given that the injunction has expired, it is submitted that it is not reasonable or proportionate for the contempt order to persist in excess of the period of the injunction.
34. To be 'necessary', the restriction must be more than merely reasonable or desirable. The Government must demonstrate a pressing social need to restrain an individual's right freely to express his views or to impart information. To this end, the subject matter of the restriction must involve a matter of public concern and the restrictions place on the dissemination of information if the Government demonstrates that its dissemination would have adverse consequences which are legitimately feared by the State. The extent of permissible restrictions on the exercise of freedom of expression have been considered by the European Court of Human Rights in interpreting article 10 of the European Convention on Human Rights which is the equivalent provision to article 19: Handyside v. United Kingdom 1 EHRR 737; Sunday Times v. United Kingdom 2 EHRR 245; Observer and the Guardian v. United Kingdom (1991) 14 EHRR 153; Open Door Counselling and Dublin Well Woman v. Ireland (1993) 15 EHRR 244 and Castells v. Spain (1992) 14 EHRR 445.
35. The breadth of the restriction is also relevant. The restriction must be convincingly established Observer and the Guardian v. United Kingdom (1991) 14 EHRR 153, at para. 59(c), see also Bond v. Floyd 394 US 705 (1969).
36. It is submitted that the continued detention of the Appellant is in all the circumstances manifestly excessive. It is nether reasonable, necessary nor proportionate to the mischief it seeks to prevent. It is submitted that there is no pressing social need which should require the Appellant to be detained after 6:00 pm on 2 March 1996.
37. The mischief which the injunction sought to prevent ceased to be a threat after the election was held. The mischief could adequately be prevented by imprisonment to that time (6:00 pm on 2 March 1996) and no longer.
6
March 1996
G.T.PAGONE
