ACAT’s Missing Powers; Episode 1: The Phantom Jurisdiction

Many of us grew up on the original ACAT trilogy and may view these new episodes as somewhat of a hollow imitation. But the future waits for no one, time and tide, the young will eat the old, whatever the expression is that means I’m going to do it anyway, so buckle up.

To reminisce, treat yourself to one or all of the original ACAT trilogy first: A New Limit, The Counterclaim Strikes Back and Return of the Enforcement Officer.

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ACAT Jurisdiction – Ends at the Border

By virtue of the ACAT Act, ACAT has first jurisdiction in many matters including disputes under $25,000, residential tenancy disputes, fencing and boundary disputes, administrative review, energy and water and mental health assessments. Importantly, for reasons we will shortly discuss, first jurisdiction does not equal exclusive jurisdiction. The enacting legislation for the ACAT purported to set up a system that diverted a large proportion of matters, mostly minor and administrative matters out of the court system and into a specialist jurisdiction.

A recent decision out of the High Court has established some pretty strict limitations on the purported jurisdiction of tribunals all over Australia.  Essentially, that jurisdiction ends at the border, regardless of what the enacting legislation purports to do.

Recently in Burns v Corbett [2018] HCA 15 the High Court held that New South Wales’ civil and administrative tribunal, the NCAT, cannot purport to exercise jurisdiction over residents of other states or territories. The Burns decision effectively confirms Canberra’s status as a powerful city-state only.

Westeraus

Kiefel CJ, Bell and Keane JJ in the majority opinion:

  1.  The first issue in these appeals is whether the Commonwealth Constitution precludes the Parliament of a State from conferring jurisdiction in respect of a matter between residents of different States within s 75(iv) of the Constitution on a tribunal which is not one of the “courts of the States” referred to in s 77 (“the Implication Issue”). If that issue were to be resolved in the negative, the further issue would arise as to whether a State law which purports to confer jurisdiction on such a tribunal in respect of such a matter is rendered inoperative by virtue of s 109 of the Constitution on the basis that it is inconsistent with s 39 of the Judiciary Act 1903 (Cth) (“the Judiciary Act“) (“the Inconsistency Issue”).
  2. The Implication Issue should be resolved in the affirmative. Considerations of constitutional text, structure and purpose compel the conclusion that a State law that purports to confer jurisdiction with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States is inconsistent with Ch III of the Constitution, and is, therefore, invalid.

The High Court’s reasoning appears to only apply to natural persons and not corporations (Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290).

Howe’s Case and several others have affirmed that the reference in s75(iv) to ‘resident’ is a reference only to natural persons. The ‘great dissenter’, Justice Kirby predicted in 2003 that the narrow definition of natural persons would be proven restrictive over time. In British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30, 72–3 [109]–[110] Kirby J wrote:

The decisions establishing that principle involved a remarkable narrowing of the constitutional language. In my view, it is a narrowing unjustified by the text or the context. In many ways it is reminiscent of judicial holdings in Australia and elsewhere at the same time to the effect that a ‘‘person’’, when referred to in legislation (for example for the purpose of admission to professional practice) did not include a woman. The only justification for such a narrow interpretation of s 75(iv) of the Constitution was the expressed judicial fear about an extension of the jurisdiction of this Court that might result in an inundation of work that this Court could not easily deflect to other courts in the views then held concerning the obligation of this Court to discharge a jurisdiction conferred on it by the Constitution.

In a proper case, this Court should reconsider the early determination that corporations, including statutory corporations, cannot be ‘‘residents’’ of a different State for the purposes of s 75(iv) of the Constitution. Self-evidently, corporations are, and were at the time when the Constitution was made, legal persons. They were then, and still are, frequent litigants in the courts. Their existence was contemplated by the Constitution itself. Although in 1985 in Crouch v Commissioner for Railways (Q) this Court declined to reopen its early holding on the meaning of s 75(iv), the decision is open to the strongest doubt and criticism. In my view it is wrong. One day this Court will say so.

Earlier Limitations

Other jurisdictional limits have already been addressed: for example, VCAT had earlier ruled against their own jurisdiction in relation to serving process in foreign countries. In Gluyas v Google Inc [2010] VCAT 540, an Australian sought to bring an action against Google for not taking down an autism hate-blog based out of the United States. VCAT dismissed the application for other reasons but did note specifically that VCAT had no powers to effect process outside of Australia. Regardless of how well the legislation is written, it is likely the same situation here.

Solutions

Victoria presents one interesting solution to the problem. There is a little-known provision in Victoria whereby proceedings can be issued in both a Court and VCAT. The President of VCAT is a Supreme Court Judge and Vice Presidents of VCAT are County Court Judges, so there are already judges who sit in both jurisdictions. Their legislation allows for special appointments whereby a Judge could continue hearing a VCAT case, out of the jurisdiction, and also wear the hat of a Judge.

The ACT position of jumping jurisdictions is somewhat more complicated.

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Any party anywhere, international or interstate, can still consent to the jurisdiction. However, it appears that the only feasible solution for someone looking to bring an action in the ACT, where one party is interstate, is to bring the action in the ACT Supreme Court. The situation does get complicated though, despite the Supreme Court clearly holding inherent jurisdiction over any ACAT dispute, there is no ability to transfer proceedings. An ACAT dispute can have a question referred to the Supreme Court (s84) and an ACAT decision can be appealed to the Supreme Court (s86). But the Supreme Court would likely have to dismiss the proceedings on the basis that the original process was deficient for lack of jurisdiction.

Filing a matter in the ACAT for a natural person costs $338, filing in the Supreme Court costs $1,669. There is no specialist fee for ACAT referrals or for matters that cannot be started in the ACAT because of this deficiency.

For example, if you have a $2,000 bond, your landlord has unjustly kept it, but your landlord is based in Sydney, then you have no option but to file in the Supreme Court for $1,669.

The good news is that if you are in the right, rule 1722 would mean you are entitled to 100% of costs, as opposed to the ACAT presumption of 0% costs. Of course, if you are incorrect, then a simple bond dispute could lead to thousands of dollars of costs if, as a punter, you happen to get the law wrong.

The ACT is particularly susceptible to this problem given the size of the Territory and the increased likelihood that parties to transactions will be based in NSW or further afield. Essentially, the stakes are hugely raised the second you step into the Supreme Court jurisdiction, which is entirely against the original purpose of the ACAT.

This is a matter for the legislature but if I may,  I humbly propose three solutions:

  1. Create a low-cost filing fee with a presumption for no costs in the ACT Supreme Court to catch those cases that cannot find jurisdiction or where consent jurisdiction is lacking – this one is possibly as simple as allowing for the rules or even a practice direction to state that upon application the Court will apply the rules and practices of the ACAT (+the fee/costs structure);
  2. Amend the ACAT structure to have Supreme Court judges appointed as Presidential Members to create a new field of “two-hat” law, previously not in existence in the ACT (but at least Victoria has precedence to assist);
  3. Two Words: Singular Jurisdiction. Abolish the ACAT. Abolish the Magistrates Court. Everything is the Supreme Court only. We would have singular rules and simply have different levels of judicial officers hearing cases. Members can sit as Registrars when needed, Judges can sit as Magistrates on bail decisions etc. In a jurisdiction our size, there are great advantages to this approach. Massive administrative savings would be realised and the same rules can remain in place to dictate which officer should deal with each case and handle the appropriate costs positions and so on.

Point number 3 requires its own post, but if you catch me at the pub and have a spare hour or two I’ll do my best to convince you of the benefits of a sole jurisdiction. By the way, we will shortly have a big shiny new Court precinct building that would serve a single destination well, but I’ll also be the first to admit that this is a bit of a pipe dream…for now.

The High Court decision in Burns has huge implications for a jurisdiction the size of the ACT and once again I find myself writing about the ACAT facing difficult foundational issues that have existed since inception but are one-by-one coming to the fore, with real implications for those with cause to seek ACAT’s intervention.

ACT Abortion-Protest Laws Strike the Balance

Politicians blather on from time to time around the world about their anti-abortion credentials, but this is most notably either a US phenomenon or a brief part of Abbott’s leadership gambit opus “Battlelines”.

Abortion is obviously not the same third-rail issue in Australia as it is in other parts of the world. In the Australian context, apart from the fringes, the most restrictive you will usually see a politician go is maybe arguing that abortions should be “legal, safe and rare” or that they should be part of a range of options with abortion as the last resort. But it is rarely part of the serious debate in Australia as to whether it should be Medicare funded, allowed only in more limited circumstances (instances of rape) or whether we should roll back the inclusion of RU486 on the Australian Register of Therapeutic Goods.

Regardless of your personal stance, it is very important to remember that the changes in Australian law have all happened really recently and have certainly not always been the norm. Victoria legalised abortion in 2008, Tasmania in 2013 (de-criminalised). In Queensland and South Australia, it is still not legal but there are some reasonable exemptions to allow abortion in the right circumstances, though it does remain a criminal offence on the books in Queensland.

Abortion drug RU486 was included in 2012 on the Register of Therapeutic Goods and on the PBS in 2013.

Victoria and Tasmania have included provisions for anti-protest zones that created bubbles around abortion providers, preventing those areas being used by protestors to harass women seeking to access safe and legal healthcare opportunities. Similar legislation was passed in the ACT and we are just seeing the first prosecution under those laws, with the accused facing fines of up to $3750.

Anti-protest laws have a dicey interaction with our implied freedoms and the line has always been legally and politically unclear.

From on High

In 2013, the High Court upheld Adelaide City Council legislation that prevented street preachers from preaching, canvassing, haranguing or distributing printed material within the area of the City of Adelaide without a permit.

At this point, I should note for the uninitiated that Australia holds no right to freedom of speech. The most we have is an implied freedom of political expression.

In South Australia v City of Adelaide, the High Court determined that although the Adelaide City by-laws did cause a burden the implied right of political expression they did not to the extent that it actually impugned the right to political expression.

This is the same question that often causes us to examine the United States in bewilderment; it is the balance between freedoms and protections. The way the US freedom of speech provisions have been interpreted allow objectionable speech whether it be the Ku Klux Klan or the publishing of pornography, depending on your personal disposition. There are reasonable prohibitions, but nowhere near as prohibitive as in Europe or Australia.

The Poppelwell Case

prowse prays for abortion

Three Canberra men, part of a prayer group, have been charged with an offence under section 87 of the Health Act 1993 (ACT), which makes it illegal to engage in prohibited conduct in a protected area.

Protected area means within 50 metres of a declared medical facility, in this case, the ACT Health building on Moore Street.

Prohibited conduct is a bit trickier.

The act defines prohibited behaviour as including intimidation, harassment, threats, capturing images and protest, amongst other prescribed behaviours.

It is alleged that the three men were holding a silent vigil and praying within the prohibited area and that this was a protest. This vigil involved sitting and walking only. The prosecutors relied also on tendency evidence to claim that the men were engaged in the protest despite any sort of “who, me?” position the men adopt. It is alleged that the men stood vigil, often with signs, at the main entrance every Friday for many years.

 

 

The case will likely be determined in the Magistrates Court by a determination of whether there was a protest or whether the law is compatible with the ACT Human Rights Act 2004. Likely, and I’m guessing here, sections 14-16 covering freedom of religion, freedom of assembly and freedom of expression.

Regardless of what happens in the Magistrates Court, there will no doubt be an appeal to the Supreme Court and likely the High Court to determine whether the Section prohibiting protest is inconsistent with the implied right to political speech.

The Director of Public Prosecutions gives the impression that he is hesitant to bring the prosecutions out of regard for the public interest test, but choosing to never enforce the law once it is on the books is not really an option, so it was inevitable that it was going to be tested and challenged constitutionally eventually. 

The decision will be handed down on 9 March 2018.

In my humble…

I’m glad of the fact and believe that we are stronger for not having the same divisive discussion on abortion that many other countries have.

Further to this, I’m glad that we don’t have the absolutist approach to public speech that the US has. There must necessarily be reasonable restrictions on most public acts.

However, the ACT law is problematic. People retain the right to express their opinions provided they are a certain distance from the providers of legal abortions. It operates as if there is no danger from people expressing these views provided they are in a certain geographical proximity, it claims that these acts of protest are equivalent to dangerous speech as opposed to valid political expression and it claims that the people conducting this form of speech are a problem that requires a unique distinction under the law.

It’s likely that we’ve gone too far in the inclusion of protests as prohibited action. Aggressive and vile acts of protest can definitely be used as a form of intimidation, but these acts are covered by the other definitions of the Act such as harassing, intimidating or threatening behaviour. To include protest, as its own category, probably tips the scale too far on the protection/freedom continuum and therefore risks a backlash, defeating the purpose of the legislation. If the stronghanded action instead leads to the validation or politicisation of acts of protest near medical clinics, then it has failed. My problem isn’t with what the three men did or didn’t do, my problem is with the wording of the law and whatever the next step is that we haven’t foreseen. In the arms of the wrong government, these laws enforce the precedence that can lead to protest being banned in other circumstances such as gagging environmental protestors outside of cage-egg farms or preventing protests outside of parliament or other objectionable gatherings.

G20-Welcome-to-Hell-G20-protest

UPDATE:  On 9 March 2018, Magistrate Theakston found each offence not proven and dismissed the charges which relied heavily on tendency evidence to show that the defendants must be engaged in a protest because of their previous behaviour.

Magistrate Theakston stated:

85.  I accept they were each engaged in silent prayer, and that such prayer involved no component of expression, communication or message to those around them.  The only reservation I have in that regard, arises from the presence of the rosary beads in the hands of Mr Clancy.  However, the presence of those rosary beads, without any other symbolic display or gesture, leaves me with a significant doubt about whether there was any expression, communication or message by Mr Clancy.

Full decision here.

Apologies Without Fault are Totally Legit

How do you get a Canadian to apologise? Kick them.

It’s a stereotype that Seppos love to trot out in derision (although light-hearted) of their northern neighbours; Canadians love apologising.

If I can be so bold as to speak for the rest of the world, the jokes about Canadian apologising are tired. Most people value the civility of an apology and its role as a social lubricant. I’d certainly much rather reside in a society that apologises too much as opposed to the stereotyped American individualistic approach, which can crudely be summarised as telling people who cross you to self-fornicate.

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Most Canadian Law Ever

There was significant coverage and again light-hearted derision when the Ontario legislature passed the Apology Act in 2009. It seemed so perfectly colloquially and quaintly Canadian. “Canadians love to say sorry so much we had to make this law”.

The act was passed to deal with an uptick in civil cases in their courts that were decided on apparent admissions of liability relating to apologies offered at the time of the incident. This is not a unique problem for Canada, as I’ll deal with shortly, but it did strike a particular cultural nerve. Punishing people for apologising when they may not have been liable was a threat to the entire Canadian way of life. There was a fear, as there is constantly in Australia, that they were overly legalising our everyday interactions and becoming too “American”; shorthand for litigious.

Sueeveryone

The act did not apply universally and the largest exception is for apologies made in the course of the proceedings. The act was designed to operate more to protect members of the public from accidentally admitting liability in instances where they were not aware of the possible interpretation of their chosen words. It should be noted that most other Canadian jurisdictions have similar laws, as do many other parts of the world.

Section 1) “apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.

Ontario made it safe to continue apologising to everyone in most circumstances regardless of whether they’ve just hit your dog or if you’ve just merked them in ice hockey…again.

sorrysorry

 

Apologising: The Australian Way

The ACT has had laws in place via the Civil Law (Wrongs) Act 2002 (ACT) which have the effect of preventing apologies being construed as admissions of liability. NSW passed similar legislation around this same time but the two remained the outliers in Australia for adopting this approach. ACT and NSW were mostly addressing policy concerns relating to apparent admissions made by insured people that may later affect the rights of their insurer to recover, as opposed to some deep-seated cultural crisis.

Effect of apology on liability etc

(1)     An apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person—

(a)     is not (and must not be taken to be) an express or implied admission of fault or liability by the person in relation to the incident; and

(b)     is not relevant to deciding fault or liability in relation to the incident.

(2)     Evidence of an apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the incident.

In Hutchison v Fitzpatrick [2009] ACad TSC 43, two Rugby spectators and old friends had a barney and the one who came off a bit better had refused to visit the other in hospital or apologise on the advice of his solicitors. Master Harper expressed regret at this advice:

 the defendant would not have been placing himself at risk by visiting the plaintiff or proffering an apology to him. If solicitors are still advising their clients not to apologise and not to visit or telephone or write to people who might sue them … this would be regrettable.

Sorry, not sorry.

Outside of the legislative approach, the common law has always distinguished between apologies, admissions of guilt and admissions of fact.

As noted above, many of the Australian cases that concern apologies are in the insurance realm. Most insurance contracts have a clause that can leave a person unprotected if they make an apology or admission of liability (Terry v Trafalgar Insurance [1970] 1 Lloyd’s Rep 524). Legislation that dictates that an apology does not constitute an admission goes a long way to dealing with these problems.

The High Court has restricted the impact of apologies, affecting all jurisdictions whether they pass legislation or not. In the 2003 case of Dovuro Pty Ltd v Wilkins, canola farmers claimed a loss caused by the supply of contaminated seeds. The supply company issued a media release that contained an apology prior to any litigation. The media release and a further follow-up letter made full apologies expressing regret and also admitting that the company “failed in its duty of care“. Now, why a sophisticated client (company) made such a legally dangerous series of statements is bewildering, but so it goes. The company would have been protected under the ACT and NSW legislation regardless, but elsewhere it would depend on the circumstances of each case.

The High Court (save for Kirby J…of course) agreed with the position that admissions that include legal conclusions cannot have the effect of creating liability for negligence if it did not otherwise exist.

…[c]are that needs to be taken in identifying the precise significance of admissions, especially when made by someone who has a private or commercial reason to seek to retain the goodwill of the person or persons to whom the admissions are made…The statement that the appellant “failed in its duty of care” cannot be an admission of law, and it is not useful as an admission of failure to comply with a legal standard of conduct.

The Importance of Apologies

In 2014, the Australian Law Reform Commission (ALRC) recommended that all jurisdictions across Australia should amend their laws so that apologies are not considered to be admissions of guilt.

The ALRC went further than the Ontario analysis and emphasised several other positive benefits from preventing admissions from being construed as admissions of guilt. There were benefits identified for not only the minimisation of litigation and therefore reduction of stress on the courts but also the personal well-being of those who perceive themselves as having been wronged.

In defamation and breaches of privacy, an apology may have a particularly beneficial effect on the well-being of “victims”. The Telecommunications Ombudsman submitted to the ALRC that they find apologies can:

  • diffuse tension and create common ground between opposing parties
  • foster constructive discussion and even conciliation between parties
  • alleviate injury and distress caused to aggrieved parties, and
  • reduce the length and severity of disputes.

The ALRC further found that in medical negligence cases, apologies (not court-ordered apologies), can have psychological benefits to plaintiffs.

Codicil

The ACT seems to have hit the right balance.

All empirical analyses seem to confirm that limiting liability from apologies has a wide range of benefits in both a legal and societal context. Associate Professor Prue Vines from Sydney Uni, perfectly summed up the dilemma in the title of her article on this issue (without dismissing the value of the body of her article); apologies in a legal context could be “Cynical Civility or Practical Morality“.  As Prof Vines concludes, differentiating between genuine apologies and cynical gambits to limit liability ignores that only the genuine apology gets punished if we remove the protection. As La Rochefoucauld said: “hypocrisy is a tribute vice pays to virtue.” I’d rather live in a society where apologies are offered too often instead of too infrequently, regardless of the intent.