Tag Archives: High Court

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

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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.

Equality -vs- Liberty. High Court Backs Equality.

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The High Court has given an ideological thumbing to our US cousins over whether there is a right to limit the influence of money in politics by upholding the ability to limit certain kinds of influence and participation. The decision stands in stark contrast to the US Supreme Court decision in Citizens United which opened the literal (not literal) flood gates to corporate money in political campaigning.

Citizens United

Citizens United v. Federal Election Commission (insert non-sensical US case citation here) involved answering 2 questions. Firstly, did the Federal Election Committee (FEC) limitations on donations from entities that were not individuals breach the first amendment right to free speech and secondly did restrictions on advertising regarding the film “Hillary” breach the first amendment?

Yes, No.

Citizens United can best be described as a right-wing attack special interest group that sought to advertise a film that was highly critical of Hillary Clinton and ran into resistance from the FEC who banned the efforts on the basis that they breached the Bipartisan Campaign Reform Act (BRCA). The BCRA was passed in 2002 and amended the Federal Election Campaign Act by targeting soft money and its influence in campaigns and political advertising. The act was praised as a rare achievement in campaign reform which has only increased the ire following the Supreme Court decision. Subsequently, the decision has become a HUGE hot button issue as the US starts the bizarre circus that is their Presidential Election process.

First Amendment to the Constitution of the United States of America:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

To paraphrase the judgment, the US Supreme Court essentially stated that all legal persons, such as corporations and trade unions, not just actual people have equal protection under the first amendment to not have their right to free speech impeded by an act of Congress. Practically this means that “mo money = mo free speech”, and no law can prevent an entity spending its money in this vein.

On the second question, the Court found that the FEC could still validly regulate the content of those advertisements and that preventing the “film” “Hillary” from being used in political advertisements did not violate Citizens United’s first amendment rights.

Equality v Liberty

The Court divided almost perfectly on ideological lines, with Chief Justice Roberts providing the deciding vote in both of the 5-4 decisions, which in itself is worth an article on how we should thank Lady Fortuna that our justice system is nowhere near as political as the US. Voting for sheriffs and judges? mmm, no.

The decision is disappointing but hardly surprising given the current climate of US politics and also the general history of the country right back to its foundations.

For the uninitiated, let me summarise western political/organisational foundations in 50 words or less. European structures tend to favour equality and community rights over individual rights. So your right to say whatever you want is restricted by the right of the community not to hear your racist rant on a bus or your right to keep your entire income is overridden by the right of the community to have a public police force, health system, defence force etc. Alternatively, the US system tends to favour individual rights, where community rights are still apparent but in a much more limited understanding. So your right to say what you what is more or less absolute over someone being offended by your retarded ramblings and your right to religious expression is complete even if it is expressed as part of a “profoundly evil movement from which gullible – and the not so gullible – members of the community required protection.”

The difference between the two theories is best broadly understood as individualism vs collectivism and explains the philosophical basis for the conservative and progressive parties in just about every western country.

McCloy v NSW

The High Court dealt with a similar issue in McCloy v NSW [2015] HCA 34 where Mr McCloy sought to challenge the investigation into him by the Independent Commission Against Corruption (ICAC) as invalid on the basis that his status as a property developer meant his implied right to free speech was impinged because of investigations relating to donations made as a “prohibited person” according to the Election Funding, Expenditure and Disclosure Act 1981 (NSW).

Mr McCloy is the former Lord Mayor of Newcastle and was being investigated for donating around $30,000 to candidates in the 2011 NSW State Election despite being banned from making donations for being a property developer.

The High Court was invited by Mr McCloy to find that the applicable sections of the act are invalid as they unnecessarily burden the implied right of political communication as previously upheld in the Court in cases such as Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560.

A primary difference between the Australian and US decision, is that the US right to free speech is implicitly stated in the Bill of Rights whilst the Australian right to free speech only exists because it has been found to exist through previous High Court decisions.

Finding

The Court found that certain limitations are justified and in fact necessary to ensuring the overall health of our system. In (ANU grad) Gageler J’s words:

that such restriction as each imposes on political communication is imposed in pursuit of an end which is appropriately characterised within our system of representative and responsible government as compelling; and that the imposition of the restriction in pursuit of that compelling end can be seen on close scrutiny to be a reasonable necessity. [155]

In other Gageler J gems that will no doubt be quoted in later decisions and possibly placed in the fine print of protest placards:

Corruption is perhaps more readily recognised than defined. One universally recognised form of corruption, however, is for a public official to receive money in a private capacity in circumstances calculated to influence the performance of the official’s public duties. The corrosive impact of that form of corruption on the functioning of representative and responsible government was addressed in two decisions of this Court in the 1920s, in terms which resonate with the reasons later held to necessitate the implication of the constitutional freedom of political communication. [167]

and

There is no place within the system of representative and responsible government as it has developed in Australia for the notion, recently reiterated by a narrow majority of the Supreme Court of the United States, that the legitimate end of limiting campaign financing is the elimination of “quid pro quo corruption”. The legitimate end of limiting campaign financing here surely extends to the elimination of what has there been labelled “clientelism”:”the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder” [181]

Implications

This is a very promising decision for those concerned about the direction US electoral law is heading and to that extent the decision reflects recent sentiments expressed in UK and Canadian judgments asked to consider similar cases.

In this way, the High Court has made an implicit decision that when considering questions of political influence, individual equality is more important than individual liberty. This is in keeping with our general preference for collectivism where “Your right to swing your arms ends just where the other man’s nose begins.”