Blanch v Smith

Consideration

1. Part 3A of the CAT Act deals with 'Federal Proceedings'. Section 34A defines 'federal jurisdiction' as jurisdiction of a kind referred to in ss 75 or 76 of the Constitution. The Tribunal has no jurisdiction to determine such matters, it not being one of the 'courts of the States' as referred to in s 77 of the Constitution. Burns v Corbett per Kiefel CJ, Bell and Keane JJ [1].
2. The issue in these proceedings is said to be a matter 'arising under this Constitution or involving its interpretation' within the meaning of s 76(1) of the Constitution. The constitutional matter is that s 38S impermissibly burdens the implied freedom of political communication.
3. The Tribunal must exercise its authority but may not exceed its authority Citta [25]-[26]. The Tribunal does not have jurisdiction to hear and determine any complaint 'with respect to any matter meeting a description in ss75 or s76 of the Constitution.' Citta [29]. For the purpose of resolving the constitutional question raised by the respondents and forming an opinion about the Tribunal's limits of its jurisdiction, the Tribunal must objectively assess whether the constitutional question was genuinely raised and whether the constitutional question, on its face is capable of legal argument.
4. In Citta, the majority at [35] explained the task for the Tribunal in assessing the constitutional question in the claim or defence : … be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.

Genuinely raised

1. The respondents in their points of defence raised material facts they claim buttressed the constitutional question to be that the first respondent is employed by the second respondent, which is a political advocacy organisation. The respondents are engaged in political advocacy around gender equality and it was argued that the conduct alleged to be transgender vilification was political communication in the public forum. It was submitted that public communications about transgender are in the nature of political communications and that the communications were made for 'purely political purposes'.
2. The respondents squarely raised the constitutional issue in the Notice about 10 days before the final hearing. There was no application for an adjournment by the applicant or submissions that the applicant did not have an opportunity to meet the respondents' submissions.
3. I am satisfied that the respondents genuinely raised the constitutional issue. I reject the applicant's submission that an inference ought to be made that the respondents acted in an improper manner in raising the constitutional matters because it was late or because they failed to refer to Sunol in their submissions.

Whether the constitutional issue is incapable on its face of legal argument

1. The Tribunal must determine the constitutional issue without delving into the prospects of success, unlike in a summary dismissal case which has a higher threshold as it requires an assessment of whether the claim is 'so clearly untenable that it cannot possibly succeed' Citta [37], [47].
2. Edelman J in minority held that determining whether there is a 'real question' giving rise to a constitutional issue involves the same assessment as whether there would be an abuse of process which requires a finding that the claim is 'manifestly hopeless' which 'can never be entirely independent of an assessment of the 'merits' of that issue' Citta [75], [78].
3. The question for decision is whether on the face of legal argument, the submission that s38S of the Act imposes an unjustifiable burden on the implied freedom of political communication is so clearly untenable that it cannot possibly succeed.
4. To answer the question, the Tribunal must consider the elements of the implied freedom of communication on political matters.
5. In Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 (Banerji) per Kiefel CJ, Bell, Keane and Nettle JJ (the majority) set out the method for considering the effective burden imposed by the impugned provisions. At [29] the majority stated: The question is whether that burden is justified according to the two part test of whether the impugned law is for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution and, if so, whether that law is reasonably appropriate and adapted to the achievement of that objective (citation omitted).
6. Whether the legislative provisions were appropriate and adapted involves the consideration of the suitability, necessity and adequate balance [32]-[38].
7. In McLoy at [2], French CJ, Kiefel, Bell and Keane JJ described the implied freedom of communication on political matters to be: The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may "exercise a free and informed choice as electors." Lange at 560. It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.
8. As stated consistently on many occasions by the High Court, the implied freedom of communication on political matters is not a personal right of free speech like the 'freedom of expression' guarantee in the Constitution of United States. The implied freedom in the Constitution 'extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution' (Lange at 576; Banerji at [20]).
9. The implied freedom of communication on political matters is a freedom of expression right but it is qualified and conditional. The respondents' submissions do not grapple with how s 38S effectively burdens the people of the Commonwealth from exercising a free and informed choice as electors; Lange at 560 or whether the purpose of the Act as a whole or s 38S specifically is compatible with the maintenance of the constitutionally prescribed system of representative government (Lange at 561-562, 567). There are no submissions as to whether the Act is reasonably appropriate and adapted to advance legitimate objects (Lange at 562).

Effective Burden

1. The first step is to construe the statutory language creating the offence. Section 38S(1) of the Act makes it unlawful to incite hatred towards, serious contempt for or severe ridicule of a transgender person or transgender persons. The applicant conceded that s 38S(1) limited political communication to some extent and imposed an effective burden on the implied freedom of political communication consistent with the judgement of Bathurst CJ at [42], Allsop P at [55], [68] (the majority) in Sunol. Basten JA at [85]-[91] provided a powerful finding that s 49ZT of the Act which is in identical terms to s38S but is about homosexual vilification is not a burden on the implied freedom of communication on political matters.

Justification

1. As stated by Kiefel CJ and Keane J in Farm Transparency International Ltd v New South Wales [2022] HCA 23; 96 ALJR 655 at [29]: The process of justification commences with the identification of the statutory purpose. That purpose must be compatible with the system of representative government for the provision to be valid. A justification for a burden will only be sufficient if it is shown that the statutory provision is proportionate to the achievement of its purpose[18]. Since McCloy v New South Wales, including more recently in LibertyWorks Inc v The Commonwealth, proportionality has been assessed by reference to whether the impugned provision is suitable, necessary and adequate in its balance. (citations excluded)
2. The question that arises is whether s38S 'exhibits a rational connection to its purpose' Banerji [33] and is 'suitable, necessary and adequate in its balance'. In Sunol the judges were unanimous in their finding that s 49ZT is a law that was reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government (Bathurst CJ at [46], Allsop P at [59], [73]-[74], Basten JA at [94]).
3. In paragraphs [47] to [52] Bathurst CJ explained why s 49ZT of the Act is appropriate and adapted in a manner compatible with the implied freedom: [47] In considering this question there are a number of matters which need to be borne in mind. First, the freedom is not absolute. In Australian Capital Television Pty Limited v Commonwealth supra at 169, Deane and Toohey JJA emphasised that it was not an absolute and uncontrolled licence but an implication of freedom under the law of an ordered and democratic society: see also Cunliffe v The Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272 at 336-337. In Lange at 565-566 (citations omitted), the Court summarised the position as follows: "Similarly, the content of the freedom to discuss government and political matters must be ascertained according to what is for the common convenience and welfare of society. That requires an examination of changing circumstances and the need to strike a balance in those circumstances between absolute freedom of discussion of government and politics and the reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics." [48] Second, in determining whether a law is reasonably appropriate and adapted to a legitimate end, the question for the Court is not whether some choice other than that made by Parliament was preferable or desirable, but whether the parliamentary choice was reasonable in light of the burden placed on the constitutional freedom of communication. The role of the Court is to ask whether Parliament's enactment is a reasonable means of achieving its purpose, keeping in mind the importance of constitutional freedoms: Levy v State of Victoria [1997] HCA 32; (1997) 189 CLR 579 at 598, 608, 614-615, 618-620, 627-628 and 647-648; Mulholland v Australian Electoral Commission supra at [32]-[33], [234]-[239], [256], [360]; Coleman v Power supra at [31], [100], [292] and [328]. [49] Third, the distinction has been drawn between legislation the direct purpose of which is to restrict political communications and that which only incidentally restrict such communication. The distinction was drawn by Gaudron J in Levy v The State of Victoria supra at 619 (citation omitted), in the following terms: "If the direct purpose of the law is to restrict political communication, it is valid only if necessary for the attainment of some overriding public purpose. If, on the other hand, it has some other purpose, connected with a subject matter within power and only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose." [50] Section 49ZT falls into the latter category. [51] Although having regard to the construction of the Act to which I have referred above, it is true that the potential operation of the section is wide and can extend to public acts neither intended to incite hatred, serious contempt or severe ridicule or in fact having that effect, it must be remembered that public acts which express such emotions but which would not incite such emotions in an ordinary member of the class in question are not caught by the section. Further, such persons would generally be aware of the robust nature of political debate which takes place in this country. In addition, s 49ZT(2)(c) exempts from the operation of the section public acts done reasonably and in good faith concerning matters in the public interest, including discussion or debate about any act or matter. [52] It seems to me plain that seeking to prevent homosexual vilification is a legitimate end of government. A law seeking to prevent the incitement of such conduct seems to me compatible with the maintenance of the constitutionally provided system of government. It does not seem to me that debate, however robust, needs to descend to public acts which incite hatred, serious contempt or severe ridicule of a particular group of persons. Further, to the extent that what is recognised as legitimate political debate would fall within s 49ZT the exemption in s 49ZT(2)(c) in my opinion provides adequate protection. In those circumstances the legislation provides the appropriate balance between the legitimate end of preventing homosexual vilification and the requirement of freedom to discuss and debate government or political matters, required by the Constitution: Cf Jones v Scully supra at [240].
4. Sunol is authority for the proposition that homosexual vilification provisions in the Act are justified and do not impose an unjustifiable burden on the implied freedom of political communication and on that basis if such an argument was made it is likely to be untenable.
5. For the Tribunal to find that such an argument is untenable regarding the prevention of transgender vilification as a legitimate end of government on the same basis found in Sunol requires a value judgement which would in my opinion involve delving into the merits of the claim which the Tribunal has no jurisdiction to do.
6. As the Tribunal has no jurisdiction to determine these proceedings because they involve an exercise of federal jurisdiction, the application is declined.
7. I do not consider that the Tribunal's discretion would be properly exercised by dismissing the proceedings pursuant to s55(1) of the CAT Act as none of the subsections refer to dismissal based on a lack of jurisdiction.
8. The Tribunal makes the following order: 1. The Tribunal declines to deal with the application as it involves an exercise of federal jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 31 January 2024 - Amended name of Counsel for Respondent 05 March 2024 - Paragraph 8; Amended. Paragraph 18; The word 'arguably' should ready 'arguable'. Paragraph 33; The second 'applicant' should read 'application'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2024