Elzahed v Kaban

Supreme Court of NSW|2019-04-11|Before: Harrison J

Background

On 17 October 2014, the plaintiff and other members of her family commenced proceedings in the District Court against the Commonwealth of Australia and the State of New South Wales. The proceedings concerned a claim for damages arising out of the execution of a search warrant at the plaintiff's home on 18 September 2014. The proceedings were heard by Balla DCJ in courtroom 13A in the John Maddison Tower from 28 November 2016 to 2 December 2016 and on 7 December 2016. The plaintiff attended the court and was present at the hearing. CCTV footage from the courtroom shows that the plaintiff failed to stand on nine occasions when Judge Balla entered and left the room.
On 15 December 2016, Judge Balla found in favour of the defendants: see Moutia Elzahed v Commonwealth of Australia [2016] NSWDC 353.
The plaintiff was thereafter charged by Court Attendance Notices dated 8 May 2017 with nine offences contrary to s 200A(1) of the District Court Act.

The judgments in the Local Court

It will be necessary later in these reasons to refer to a number of passages of her Honour's reasons for judgment and her later remarks on sentence that are central to the plaintiff's contentions in these proceedings. For present purposes, however, it is sufficient at this point to record her Honour's conclusions: "[160] For the reasons detailed, I determine that section 200A(1) of the District Court Act is a valid law, and is not rendered invalid by the Constitution. [161] On the basis of the findings of fact set out in these reasons for Decision, I am satisfied that the prosecution have proved beyond reasonable doubt, the nine offences in breach of section 200A(1) of the District Court Act, as set out in the court attendance notices. I am satisfied, as detailed above, that the defendant, Ms Elzahed, repeatedly and intentionally failed to stand for the Judge in the District Court proceedings, and in doing so she intended to communicate by her behaviour lack of respect, or disrespect, for the court and the judge. I am satisfied for the reasons detailed above that the defendant's behaviour was intentional, and the behaviour was disrespectful to the court and the Judge presiding over the proceedings, according to established court practice and convention. I am satisfied that the prosecution have proved all elements of the offences, in respect of each of the nine offences set out in the court attendance notices, beyond reasonable doubt, as detailed above. I therefore find all offences proved."

The plaintiff's ground of appeal

The plaintiff's several grounds of appeal are considered in what follows.

Ground 1 - no valid authorisation by the Solicitor- General

The plaintiff contended that the proceedings were not validly commenced as the Solicitor-General erroneously approached his task under s 200A(8) because he: 1. proceeded upon the basis that the criterion for the exercise of his power was whether the prosecution was reasonably arguable; 2. failed to have regard to whether the commencement of proceedings was in the public interest; and 3. should be inferred not to have exercised the power for the purpose of advancing the public interest.
The Solicitor-General's memorandum dated 9 February 2017 is entitled "QUESTION OF WHETHER PROCEEDINGS IN CONTEMPT OR FOR AN OFFENCE AGAINST S 200A OF THE DISTRICT COURT ACT 1973 SHOULD BE INSTITUTED AGAINST MOUTIA ELZAHED". In the course of dealing with this issue, the Solicitor-General referred to a portion of the transcript of the proceedings before Balla DCJ on 7 December 2016 which he extracted in full, and which is partly as follows: "HER HONOUR: Mr Evatt, I see the first plaintiff is here again today. I noticed on Wednesday and I see again today that the first plaintiff doesn't stand when I come onto the bench or when I leave the bench. Is there a reason? EVATT: I'm afraid so, your Honour. HER HONOUR: Are you going to tell me what it is? EVATT: I'd just better check. I know the reason. I just want to check. Your Honour, it's due to religious belief, your Honour, but I'm not satisfied with that. Would your Honour just excuse me again. She's a Muslim, your Honour. A strict Muslim and according to my instructions, she won't stand for anyone except Allah. Which I'm not particularly happy with, your Honour. HER HONOUR: The reason I bring it up is that no doubt you have made your client aware of the recent offence which has been created which may relate to such conduct. Obviously the decision as to whether any action will be taken against her after the case is over, won't be made by me, but will be made by others. I just wanted to check she's received advice, bearing in mind, it may well be that each occasion on which she doesn't do it may be a separate offence. I just wanted to make sure she's received advice, Mr Evatt. Thank you. Can we continue?"
The Solicitor-general's memorandum then relevantly concluded in the following terms: "I understand that no person has been prosecuted for an offence contrary to s 200A or the equivalent offences in the Supreme Court Act 1970, the Land and Environment Court Act 1979, the Local Court Act 2007 or the Coroners Act 2009. A question may arise as to whether it is necessary, for the offence to be committed, for a person to intend to be disrespectful (see eg He Kaw Teh v The Queen (1985) 157 CLR 523 at 582 per Brennan J) or whether it is sufficient that the person intended their behaviour. The Second Reading Speech makes clear that the intention of the Parliament was that it is not necessary to show that a person has an intention to be disrespectful to the court. I note that if the former construction of the provision was adopted, there would be significant difficulties proving the offence beyond reasonable doubt given the religious nature of the explanation proffered for Ms Elzahed's failure to stand. Nevertheless…a prosecution of Ms Elzahed under s 200A of the District Court Act would have reasonable prospects of success. In these circumstances, under delegation from the Attorney General, I authorise the commencement of proceedings - for any possible offences, identified from the transcript, interviews and CCTV footage referred to above, contrary to s 200A of the District Court Act - against Ms Elzahed in relation to her conduct before Balla DCJ in the civil proceedings in the District Court on 28 November 2016, 29 November 2016, 30 November 2016 and 7 December 2016."
Part of the Second Reading Speech to which the Solicitor-General's memorandum referred was in these terms: "The decision to refer a person to be charged with the new offence would be at the discretion of the presiding judge or magistrate, or on the initiative of the Attorney General. Proceedings may be brought only with the consent of the Attorney General, or the Attorney General's delegates, being the Solicitor General or Crown Advocate. This is a significant safeguard as judges and magistrates have several tools to deal with unacceptable behaviour in court and, as with contempt referrals, this new offence should be used only where appropriate."
The plaintiff therefore argued as follows. The power to authorise proceedings is discretionary. Section 200A(8) does not in terms identify constraints on the power it gives. That said, every discretion "however widely expressed, is confined by the subject matter, scope and purpose of the statute": Northern Territory Aboriginal Justice Agency Limited v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [34]. The power given by s 200A(8), like other statutory discretions, "must be exercised for the purpose of obtaining the object and securing the purpose of the power": Shrimpton v The Commonwealth (1945) 69 CLR 613; [1945] HCA 4 at 620.
In this context, the plaintiff argued that the object of s 200A(8) is (implicitly) revealed from the Second Reading Speech, as being a safeguard to ensure that prosecutions are commenced only where the prosecution should be commenced because it is in the public interest or at least not contrary to the public interest. The choice of the Attorney General as the person in whom the relevant power is vested is said to reinforce this in the sense that the Attorney General may be presumed in that capacity to be the appropriate person to make assessments of what is in the public interest.
It was also submitted that s 200A(8) was enacted in a context which included the well-established principle that a prosecutor "must believe that the accused is probably guilty of the offence": Mitchell v John Heine (1938) 38 SR (NSW) 466 at 469, applied in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [64]. A prosecutor who does not have that belief will have an absence of reasonable and probable cause to commence a prosecution. To the extent that s 200A(8) is directed to questions of the prospects of success, the plaintiff maintained that the relevant issue was whether Ms Elzahed was probably guilty of the offence, not whether a prosecution was arguable.
The plaintiff maintained that it is clear from his memorandum that the sole matter considered by the Solicitor-General to be relevant to the authorisation power was whether a prosecution was arguable and that the prosecution would have reasonable prospects of success. The plaintiff submitted that "it was in those circumstances and no others that he decided to authorise the commencement of proceedings". For example, the Solicitor-General did not mention whether a prosecution was in the public interest or whether a prosecution should occur as in the public interest or otherwise. Moreover, there was no mention in his memorandum of whether Ms Elzahed was probably guilty of the offences. The only relevant finding was that there were "reasonable" prospects of success.
The defendant characterised the plaintiff's approach to s 200A(8) as one involving the identification of two implied mandatory relevant considerations, namely, whether or not the proceedings were in the public interest and whether the accused is probably guilty of the offence. It is not in contest that such considerations may be implied from the subject matter, scope and purpose of the empowering Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 39-40. The Second Reading Speech referred to s 200A(8) as a "significant safeguard" to ensure the offence is "used only where appropriate". The defendant submitted that the question to which attention should be directed is by what, if any, mandatory criteria such appropriateness is to be assessed.
The defendant emphasised that provisions such as s 200A(8), requiring that a government official give consent to the commencement of proceedings for an offence, are not uncommon. As Spigelman CJ said in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367 at [11], "the general purpose to be served by such a provision is to prevent frivolous or vexatious proceedings": see also Berwin v Donohoe (1915) 21 CLR 1; [1915] HCA 79 at 1; Traveland Pty Ltd v Doherty (1982) 41 ALR 563 at 568-569; Oates v Williams (1998) 84 FCR 348 at 354-355; Robinson v Eureka Operations Pty Ltd (2008) 192 A Crim R 234 at [51]; R v Cain [1976] QB 496 at 502-503. The defendant referred to these several authorities in support of the approach that, where an offence provision has been enacted by the legislature, sufficient consideration will have been given to the public interest by asking whether a prosecution of the offence can properly be brought in the circumstances at hand. Section 200A(8) is said in these circumstances not to mandate consideration of the public interest beyond its operation as a filter of this kind.
In my view, the correctness of this last submission effectively disposes of this ground of appeal. The burden cast upon the Attorney General or her delegate by this provision does not create an obligation to provide or furnish or establish a sufficient reason why the proceedings should be commenced. On the contrary, the burden cast upon the Attorney General or her delegate is in effect one that requires her merely to be satisfied that there are no good or sufficient reasons why the proceedings should not be commenced. With the assistance of the Second Reading Speech, this might be thought to be only in circumstances "where it is appropriate". However, neither that speech in general nor s 200A(8) in particular refers in terms to prospects of success, probabilities of guilt, whether a prosecution is reasonably arguable or whether a prosecution is otherwise in the public interest. The provision is intended to operate as a means of preventing the commencement of proceedings without official authorisation, not as a provision that casts upon the decision maker the obligation to justify why the proceedings should be brought. It is in that sense and for that reason that a minute dissection of the appropriateness or otherwise of the Solicitor-General's memorandum is quite beside the point. For example, this is not a case in which the terms of the authorisation given by the Solicitor-General are at odds with the proceedings that were ultimately prosecuted, and the plaintiff does not suggest otherwise. As the Full Court of the Federal Court in Traveland commented at 568: "Thus, in Berwin v Donohoe…at 26, Isaacs J, in upholding the effectiveness of a consent given in general terms by the Attorney-General to a prosecution being instituted against a named person for an offence against the Trading with the Enemy Act 1914, commented: '…if the written consent is to be treated as a memorandum under the Statute of Frauds, it would be disastrous. A complicated set of circumstances may be reviewed by the Attorney-General, and his consent to a prosecution under the Act may be given in general terms leaving it to the Crown Solicitor to formulate the charge…'."
It is not in my view any part of the Attorney General's task to assess the apparent strength of the proposed proceedings beyond a consideration of whether or not, for example, they might appear to be frivolous or vexatious or totally without any apparent or reasonable prospect of success. In providing the authorisation to commence the proceedings pursuant to s 200A(8), the Attorney General is not required to warrant their viability or to endorse their prospects of success. (An example of this appears in Oates v Williams at 355, when the Court said "…we do not regard it to be the Minister's function when considering whether to grant his consent that the Minister must be satisfied that there is a prime facie case against the accused"). Conversely, the mere expression of an opinion about such matters is not the equivalent of a statement of reasons from beyond the four corners of which any judicial assessment of the validity of the decision cannot stray. The Solicitor-General's view that the prosecution "would have reasonable prospects of success" and considerations of whether a prosecution is in the public interest are not mutually exclusive.
Even less does a consideration of whether or not particular proceedings have been properly authorised pursuant to s 200A(8) fall to be assessed by the measure of reasonable and probable cause. The Attorney General does not by operation of this provision become the prosecutor. Proceedings that are authorised pursuant to the provision necessarily continue separately to be subject to the usual limitations and constraints upon prosecutorial discretion and upon decisions about the commencement and maintenance of criminal prosecutions.
The power given by s 200A(8), like other statutory discretions, "must be exercised for the purpose of obtaining the object and securing the purpose of the power": Shrimpton at 620. I do not consider that the Attorney General's task in considering whether or not to authorise proceedings pursuant to s 200A(8) is, or should be considered as, one that is determined only by what is or is not in the public interest. The withholding of the Attorney General's authorisation of proceedings that are, for example, vexatious, or considered not to be appropriate for whatever reason, may well be guided by what is in the public interest but that is an entirely different matter to elevating what might inspire a particular decision to installing it as the mandatory relevant test for all such decisions. The discretion in s 200A(8) is in its terms not so constrained. I can see no warrant for implying such a limitation upon it.
In my opinion, the Solicitor-General's decision to authorise the commencement of the proceedings against Ms Elzahed was unexceptionable.

Ground 2 - the charged offences were an omission

The case alleged against the plaintiff, as particularised in the Crown Solicitor's letter dated 8 August 2017, was that Ms Elzahed's "behaviour was disrespectful to the Court according to the established court practice and convention that when a judge enters a courtroom, or leaves a courtroom, persons present in the courtroom at the time are to stand". The actus reus of each alleged charge was that Ms Elzahed failed to stand. The alleged behaviour on her part was therefore an omission.
The plaintiff contended that the High Court "has spoken authoritatively and with crystal clarity" on the criminal law's approach to omission. The plaintiff relied in support of that contention principally upon Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 at [97] and Director of Public Prosecutions v Poniatowska (2011) 244 CLR 408; [2011] HCA 43 at [29]. In the former case, the majority said this: "Manslaughter by gross negligence [97] Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do. As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. A person may voluntarily assume an obligation to care for a helpless person and thereby become subject to such a duty. Outside limited exceptions, a person remains at liberty in law to refuse to hold out her hand to the person drowning in the shallow pool."
In the latter case, the majority briefly commented in these terms: "[29] The majority in the Full Court were right to consider that the Code incorporates the general law principle that criminal liability does not attach to an omission, save the omission of an act that a person is under a legal obligation to perform. The expression of that principle is found in s 4.3 of the Code. Section 4.3 is drawn directly from the CLOC draft Model Code."
The plaintiff maintained, in accordance with these authorities, that as it was no part of the prosecution case against her that she was under a legal duty to stand, the offences charged could not succeed at law.
The defendant's response was that the principles advanced upon the basis of Burns and Poniatowska, while not in doubt, yielded to a contrary statutory provision. For example, in R v Iannelli (2003) 56 NSWLR 247; [2003] NSWCCA 1, Handley JA said the following: "[20] These convictions therefore depend essentially on omissions. Criminal liability for mere omissions in Anglo-Australian law is exceptional unless it has been expressly imposed by statute. Glanville Williams 'Criminal Law - The General Part' (1961) states at pp 3-5: 'In some instances an omission will create criminal responsibility without any positive act ... In law, as in morals, the concept of culpable omission presupposes a duty to act; and a rule penalising an omission must state to whom this duty belongs ... the criminal law does not impose a duty upon someone to act to prevent a consequence whenever it imposes a duty not to bring about the consequence. The law relating to omissions is not co-extensive with the law relating to acts. It is partly coincident in manslaughter and murder, but here the event of death leads the law to look upon the omission with special severity. Most crimes, particularly those at common law, are defined to need a positive act ...'. [21] 'Halsbury's Laws of England' 4th ed Criminal Law vol 11 p 15 is to the same effect: 'As a rule the criminal law imposes no obligation on persons to act so as to prevent the occurrence of harm or wrongdoing. There is no general duty to prevent the commission of crime; nor does a person commit a crime or become a party to it solely because he might reasonably have prevented its commission. Omission to act in a particular way will give rise to criminal liability only when a duty so to act arises at common law or is imposed by statute. Such a duty is exceptional and the criminal law does not ordinarily require a man to be his brother's keeper'."
In Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [527], Beazley P said this: "[527] However, as the Chief Justice notes, at [372] above, the Anglo-Australian common law tradition has long held to the view that, absent statutory provision to the contrary, an omission does not give rise to criminal liability in the absence of a relevant legal obligation to act: R v Iannelli [2003] NSWCCA 1; 56 NSWLR 247 at [21]; Director of Public Prosecutions (Cth) v Poniatowska [2011] HCA 43; 244 CLR 408 at [29]." [Emphasis added]
Counsel for the plaintiff also drew attention to some of the remarks of the majority in the Full Court of the Supreme Court of South Australia in Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578; [2010] SASCFC 19 in several locations as follows: "[13] However, it is well established that there can be no criminal liability for an omission unless the alleged conduct constitutes a failure to perform a legal obligation. In R v Iannelli, the New South Wales Court of Criminal Appeal quashed the conviction of the appellant who had been found guilty of being knowingly concerned in the commission by two companies of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) by failing to pay tax instalment deductions to the Commissioner of Taxation… [14] In Nicholson v The Department of Social Welfare, the New Zealand Court of Appeal discussed the effect of s 127 of the Social Security Act 1964 (NZ) which makes it an offence for a person to do or say anything or omit to do or say anything for the purpose of misleading an officer of the relevant department for the purpose of receiving or continuing to receive a social welfare benefit. Richardson P and Keith J said in their judgment: In the context of s 127, the relevant 'omission' must consist of a failure to comply with some legal obligation. An omission is simply 'The neglect to perform what the law requires' (Black's Law Dictionary (5th ed, 1979)); '[a] crime can be committed by omission, but there can be no omission in law in the absence of a duty to act' (Glanville Williams, Textbook of Criminal Law (2nd ed, 1983) at p 148). … [16] As previously stated, it is our view that an omission to perform an act can constitute a physical element of an offence under s 135.2. However, the definition of 'engage in conduct' which includes an omission to perform an act does not overcome the requirement that the conduct charged must be an omission to carry out an obligation imposed by law. It is necessary to identify a relevant duty or obligation arising under the general law or statute before enquiring whether there has been a breach by way of omission. … [30] The concept of an 'omission' must be read as referring to a law which identifies the omission in question in such a way as to create a duty to perform the omitted act. An example of such a law is a law which makes it an offence for a person to refuse or fail to produce a driver's licence on request by a police officer. The refusal or failure to produce the driver's licence is an identified or specific omission, and it is an omission to perform an act which the person in question is obliged to perform, having regard to the terms of the offence creating provision. An omission to file a tax return provides another example." [Emphases added]
In the present case, there is no express requirement in s 200A that a person must stand when a judge enters or leaves a courtroom. That is so notwithstanding the fact that the Attorney General referred to this in her Second Reading speech as an example of the conduct that might offend what was then the proposed provision: "Judges and magistrates of New South Wales have several tools at their disposal to ensure the smooth running of their courts, including the law of contempt, which deals with serious behaviour intended to disrupt and undermine the operation of the court. However, in November of last year a New South Wales District Court trial highlighted that other types of disrespectful behaviour, such as failure to stand for a judge unaccompanied by any other overt intentions or actions, may not amount to contempt. The strong public reaction to this case revealed a widely held community view that there is indeed a minimum standard of respectful behaviour that should take place in court. Refusing to stand for a judge fell short of that community standard. … The new offence introduced by this bill is a summary offence against deliberate behaviour in court, which is disrespectful. The elements of the offence require an intentional physical act rather than an involuntary act. But since the offence is clearly seeking to reflect established court practice and convention, it will not require a person to intend to be disrespectful to the court; for example, deliberately failing to stand when requested may be disrespectful, even if the person did not cause or intend to cause disrespect by remaining seated."
Having regard to the context in which the provision was enacted, as there revealed by the Second Reading Speech, it would have been quite simple for the section to have included a non-exhaustive list of transgressions considered to be disrespectful, which if thought appropriate could have included a specific reference to a requirement or obligation to stand at the relevant time. A failure to do so would in such circumstances clearly qualify as an omission to do something that was required by law.
In the accepted absence of any other legal requirement proscribing a failure to stand in court when a judicial officer enters or leaves, the question becomes whether s 200A itself amounts to a "statutory provision to the contrary", as it was described in Duncan. In other words, can s 200A be read as amounting to a law which identifies an omission to stand in such a way that creates a legal duty or obligation to perform the omitted act? Does s 200A legitimately criminalise an omission to stand in court for a judge?
Apart from the description of who may be liable for commission of the offence, referred to in paragraph (1)(a), the section relevantly criminalises certain behaviour in a two-step process. The first step is the requirement of intentional behaviour referred to in paragraph (1)(b) and the second step is the requirement that the behaviour be disrespectful referred to in paragraph (1)(c). Each step in this sequence must necessarily be proved by the prosecution to the criminal standard. The Crown is not required to prove that in performing the act for which paragraph (1)(b) provides the accused person had an intention to cause the consequence for which paragraph (1)(c) provides.
It seems to me that the validity of the plaintiff's proposition can be tested in the following way. It could not successfully be contended in my view that the parliament could not in terms have criminalised failing to stand for a judge in court by words such as "it shall be an offence to fail to stand for a judge in court". As s 200A now applies, a simple failure to stand for a judge in court is not an offence unless it is also proved beyond reasonable doubt to be disrespectful. I do not understand the authorities upon which the plaintiff relies to require that the omission to comply with the legal obligation imposed by law must be some distinct and separately created anterior obligation, as opposed to one specified by the very provision that criminalises the failure or omission to perform it.
The various types of behaviour that are criminalised by s 200A are not specified other than by reference to an application of the standard described in paragraph (1)(c) to intentional behaviour that is not in terms described or specified in paragraph (1)(b). While I accept that there may on one view be scope for a contention that the section does not identify the actual behaviour which it purports to criminalise with requisite certainty to make the provision enforceable, which was not argued before me, I am satisfied that the omission to act with which the plaintiff was charged is an omission that, by reason of the provision itself, amounted to a failure to perform an act which was a legal obligation imposed by law. It may be otherwise if s 200A simply said that it shall be an offence to show disrespect to a court or a judge presiding over proceedings.
Ground 2 is not made out.

Ground 3 - error as to the elements of the offence

According to this ground of appeal, her Honour erred in law in failing to hold that each of the following elements was an element of the offence created by s 200A(1): 1. a mens rea in respect of the disrespectful character of the behaviour; 2. a mens rea in respect of the established court practice or convention; 3. an actus reus element, being disrespect rising to the level of "serious" disrespect; 4. an actus reus element, being an established court practice and convention that the behaviour is disrespectful; and 5. an actus reus element, being a tendency of the conduct to interfere with the administration of justice.
The plaintiff provided lengthy written submissions in support of this ground. Without intending to diminish the importance of those contentions, it seems to me that this ground of appeal cannot succeed for the following reasons.
With respect to (a) above, her Honour found that the plaintiff intended disrespect: see [55] of her Honour's reasons. She did not, however, find that an intention to be disrespectful was a mental element of the offence. I find this entirely unsurprising. The only mental element of the offence is the requirement that the act or omission in question be intentional. No challenge is made to the proposition that her Honour found as a fact that the plaintiff intended to remain seated at the relevant times. So much is otherwise reasonably apparent from her Honour's reference in [50] of her reasons when she said: "…In my view the evidence supports the conclusion that Ms Elzahed knew from the repeated conduct of everyone around her, including her son, the expected behaviour was that she stand for the Judge, as the judge entered and left the court room. I am satisfied that the only inference to be drawn from all of the evidence is that Ms Elzahed was so aware, and that she chose not to stand…".
Her Honour's associated finding, that Ms Elzahed intended disrespect, is for the purposes of consideration of ground 3 of the appeal, an unnecessary and irrelevant artefact in her reasons for judgment and can be disregarded.
With respect to (b) above, I am unable on any reading of the section to discern a mental element in paragraph (1)(c). On the contrary, the provision speaks in terms classically, or at least usually, associated with an objective test. The assessment of the intentional behaviour identified in paragraph (1)(b) of the section is clearly to be assessed by reference to established court practice and convention, not by reference to an accused's knowledge or understanding of what the established court practice or convention might be.
With respect to (c) above, I am unable to accept that the relevant disrespect needs to be serious. The provision does not say so. This is perhaps unsurprising having regard to the infinite range of behaviour that might offend the section. It is difficult to conceive of how an adjectival qualification, such as "serious", could apply to the quality of acts or omissions that are said to be disrespectful when the acts or omissions are not themselves specifically identified. Moreover, the level of seriousness of any allegedly disrespectful act or omission is more particularly concerned with either prosecutorial discretion or sentencing. For example, by way of analogy, the commission of an assault may occur in circumstances ranging from the insignificant to the extreme, but there is no principle of criminal law that criminalises only those assaults that are described as serious or decriminalises those that are not.
With respect to (d) above, it is unclear to me what this element would add to the offence. It is already a requirement for a successful prosecution that the prosecutor prove beyond reasonable doubt that the plaintiff's conduct was disrespectful to the court or judge according to established court practice and convention. The magistrate found this element proved beyond reasonable doubt at [55] of her judgment.
With respect to (e) above, I see no reason why, based upon the text or context of s 200A, a requirement that the conduct have a tendency to interfere with the administration of justice, should be an actus reus element of the offence.
This ground is not made out.

Ground 4 - error in finding that the plaintiff intended to communicate disrespect

Paragraph [55] of her Honour's judgment is in these terms: "I am satisfied on the evidence given by Mr Blanch AO QC that a failure to stand for a judge is behaviour which is disrespectful to the court, and to the Judge presiding over the proceedings, according to established court practice and convention. I find also on the evidence in this matter that the act of intentionally not standing for the Judge, when all around are so standing, is behaviour which communicates lack of respect for the Court and the Judge, and is behaviour that is disrespectful to the Court and the Judge presiding over the proceedings, according to established court practice and convention."
The plaintiff contended that her Honour's finding at [161] was that the plaintiff intended to communicate by her behaviour lack of respect, or disrespect, for the court and the judge and that such a finding was wrong in law. This was said to be for a number of reasons.
First, the finding was made in breach of procedural fairness. The Court Attendance Notices did not allege that the plaintiff intended to communicate disrespect. The prosecution's particulars disavowed an allegation that there was a mens rea component attaching to the disrespectfulness of the behaviour and the prosecutor did not contend that the plaintiff intended to communicate disrespect. Moreover, her Honour did not indicate to the plaintiff that she might make such a finding.
Secondly, her Honour gave no reasons for concluding that the plaintiff intended disrespect. There is no mention of the finding in that part of her Honour's reasons dealing with "findings of fact on the evidence". There is no reasoning at all suggesting why any such finding should have been made.
Thirdly, any case on intention could only have been circumstantial and accordingly if intention were to be established it needed to be the only rational inference in the circumstances.
The defendant pointed out that, as the plaintiff accepts, her Honour did not consider an intention to communicate disrespect to be an element of the offence. It follows on this analysis that her Honour's comment at [161] of her judgment cannot have been, and was not, a critical step in her Honour's reasoning. This is said to be particularly so in circumstances where the plaintiff does not contend that her Honour's findings on the evidence are wrong. The defendant submitted that her Honour's comments at [161] when read in context are not intended substantively to supplement her earlier findings. The defendant maintained that it was nonetheless open to her Honour, without committing error, to form the view that the plaintiff intended to communicate disrespect by her behaviour.
An intention to communicate disrespect by failing to stand is no part of the offence charged. Her Honour's reference to the plaintiff having intended to communicate disrespect by her actions is therefore irrelevant on the question of whether her Honour erred in concluding that the offence was proved beyond reasonable doubt. It does not constitute error. The quite different question of whether or not her Honour's comments attract scrutiny in the context of the plaintiff's appeal against her sentence is referred to later in these reasons.

Ground 5 - error in finding that the plaintiff's behaviour was disrespectful to the judge

Her Honour's remarks at [55] of her judgment are set out earlier in these reasons at [50]. The plaintiff contended that her Honour's reference to the plaintiff's behaviour being also disrespectful to the judge was a finding made in breach of procedural fairness. The plaintiff argued that the offence charged in the Court Attendance Notices was that her behaviour was disrespectful to the Court. The offence charged was not that the behaviour was additionally or alternatively disrespectful to the judge. Mr Blanch's evidence was limited to the topic of whether the behaviour was disrespectful to the court. There was no evidence adduced in the case relating to whether a failure to stand was disrespectful to the judge in general or in the case of this judge in particular. The prosecution made no submissions that the particular behaviour was disrespectful to Judge Balla. At no time did her Honour inform the plaintiff that she might find that her behaviour was disrespectful to the judge.
In response, the defendant contended that there was, in effect, no relevant distinction to be drawn in this case between the court and the judge and that the distinction contended for is artificial. The defendant argued that they were interchangeable.
It is not in my view necessary to determine the correctness of the defendant's response. This is because the finding was unnecessary to her Honour's conclusions on the question of whether the defendant had proved its case against the plaintiff beyond reasonable doubt. The fact that the plaintiff was not forewarned that her Honour was considering making such a finding goes nowhere inasmuch as the plaintiff was not charged with behaviour causing disrespect to the judge and therefore could not be convicted of any such offence. The fact that her Honour referred to it is thus irrelevant in the context of her appeal against conviction. It may, however, be relevant to the plaintiff's appeal against her sentence, in which context later reference to this finding is made.

Ground 6 - error in finding that there was no evidence before the Court that the plaintiff held a relevant religious belief

This ground of appeal centres around the exchange between Judge Balla and Mr Evatt which is transcribed above at [10]. That transcript was tendered by the prosecution at the trial. It was admitted without limitation. Her Honour the learned Magistrate addressed this evidence at [53] - [54]: "Defence counsel indicated at various points in the proceedings, both in written submissions and also in questions put to witnesses, that it was a genuine religious belief of his client to not stand for a Judge. There was no evidence presented that this was a genuine religious belief held by the defendant - she gave no evidence in the proceedings, of any genuinely held beliefs. The words of her legal Counsel in the District Court proceedings, that she stands for no one but Allah, do not provide evidence that the defendant possesses a genuine religious belief that she should not stand for a Judge in legal proceedings. Nor did the defendant provide any evidence of her genuine religious belief that she cannot for religious reasons stand for anyone but Allah. Rather the evidence is that she was present as a party in the court, seeking the adjudication of the Judge/court on her claim. The statement of her Counsel to the District Court, set out above, indicates that he was instructed that it is due to her religious belief and "according to my instructions she won't stand for anyone except Allah". However, there is no evidence before the court that she genuinely held any particular belief, religious or otherwise. No evidence was presented that the teachings of Islam compel this conduct, nor was any evidence presented by the defendant of her own genuinely held religious beliefs. In detailing my findings of fact on the evidence, I must note that while defence Counsel makes submissions as to a genuine religious belief held by his client, there is no evidence from the defendant about any genuinely held religious belief. There is no evidence before the court upon which any finding of fact can be made about the defendant's beliefs."
The plaintiff contends that these passages reveal errors in law on the part of her Honour. She contended that, read fairly, her Honour must have been of the view that Mr Evatt's exchange with Judge Balla could not be probative of whether the plaintiff held a religious belief that prevented her from standing. Her Honour, in terms, said that there was no evidence before the Court that the plaintiff held a relevant religious belief. The plaintiff maintained that that was erroneous because of what Mr Evatt said to her Honour about the plaintiff's religious belief. There was no evidence suggesting that the plaintiff had any other reason for failing to stand. The prosecution, having tendered the transcript, did not proffer any other reason for that failure.
The plaintiff argued in these circumstances that her Honour's finding, that there was no evidence of the plaintiff's belief, was wrong in law either because it was legally unreasonable or founded on the legally incorrect view that a person's state of mind cannot be proven by the tender of an out of court representation by the person's agent.
The defendant submitted that the transcript from the District Court proceedings that was tendered before her Honour in the Local Court was evidence of Mr Evatt having told Judge Balla that the plaintiff would not stand on account of her religious beliefs. The defendant contended that this was not, for example, evidence on which her Honour was able to conclude that the plaintiff's religious beliefs genuinely prevented her from conforming or adhering to established court practice and convention. In that context her Honour declined to find that, consistently with her religious beliefs, the plaintiff could not stand for Judge Balla. So understood, there was, according to the defendant, no error in her Honour's reasoning.
In my opinion, none of this matters for present purposes. The question of whether or not the plaintiff had an explanation based upon her religious faith or any other circumstances does not give rise to an inference or finding in her favour upon the question of whether or not she was irregularly or erroneously convicted. Indeed, the religious explanation for the plaintiff not standing is wholly consistent with her having made an intentional decision to remain seated, which is an essential element of the offence for which s 200A(1)(b) provides. Once again, the question of an explanation may be of relevance in the plaintiff's challenge to her sentence but is not in my opinion, having regard to the terms of the section, of any significance on the question of her conviction.

Ground 7 - error in holding that the plaintiff's failure to stand was disrespectful to the Court

Her Honour's construction of "disrespectful" appears at [101] of her decision: "Having regard to the definitions set out above, I determine that 'disrespectful behaviour' is behaviour which demonstrates a lack of respect, being a lack of holding in esteem or honour. This is the primary meaning. Given the further meanings attributed by the Macquarie Dictionary set out above, disrespectful behaviour also includes behaviour which conveys rudeness or contempt."
The plaintiff contended that her Honour's conclusion with respect to the meaning of "disrespectful" was infected by legal error. First, her Honour is said to have elided distinct concepts on the one hand of behaviour which is intrinsically disrespectful and on the other hand of behaviour that causes or communicates disrespect.
Secondly, the plaintiff complains that her Honour appears to have approached the task of construing "disrespectful" as if it were a matter of fact. If that is so, it was incumbent upon her Honour to consider cogent and probative evidence before her that bore upon that issue: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [103] - [115]. In the present case, that evidence included Mr Blanch's opinion that whether behaviour was disrespectful depended upon a range of circumstances including whether the judge had communicated any views on the issue, the legal training of the person and the reason why the person engaged in the behaviour. Her Honour did not refer to that evidence.
Thirdly, her Honour's finding that the plaintiff's failure to stand was disrespectful was made in the absence of any evidence that the plaintiff's reason for not standing was religious and that she intended to communicate disrespect.
The defendant maintained that any challenge to her Honour's finding that the plaintiff's failure to stand was disrespectful falls foul of the evidence given by Mr Blanch. He said in evidence that standing when a judge enters or leaves a courtroom was, at the relevant time, an established court practice and convention and that a failure to observe the practice or convention by standing was disrespectful to the court.
The plaintiff's amended summons suggests that it was not open to her Honour to be satisfied beyond reasonable doubt that the plaintiff's failure to stand was disrespectful because there was evidence of her religious reasons for that behaviour, it was not proved that she intended to cause disrespect and the behaviour had no effect upon the administration of justice. The defendant submitted that these contentions failed for the following reasons.
Her Honour did not ignore the suggested evidence as to why the plaintiff failed to stand. On the contrary, her Honour addressed it but declined to find that Ms Elzahed held a genuine religious belief that excused the behaviour which was otherwise disrespectful. Whether or not the failure to stand was disrespectful was to be assessed by reference to the objective standard of established court practice and convention. That determination did not require reference to the plaintiff's intention, consistently with what was indicated by the Attorney General in the Second Reading Speech as follows: "The elements of the offence require an intentional physical act rather than an involuntary act. But since the offence is clearly seeking to reflect established court practice and convention, it will not require a person to intend to be disrespectful to the court; for example, deliberately failing to stand when requested may be disrespectful, even if the person did not cause or intend to cause disrespect by remaining seated … Importantly, it will not be necessary to show a person has an intention to be disrespectful to the court in order for the offence to be made out. In other words, the physical or verbal act must be a voluntary action, but the offender need not have been motivated by disrespect for the court in doing that action for it to be captured by this section."
As already discussed, the defendant re-emphasised that behaviour may be disrespectful without interfering with the administration of justice.
In my view, her Honour did not fall into error in any of the ways suggested by the plaintiff. There was opinion evidence before her Honour from Mr Blanch describing what in his view was disrespectful behaviour according to established court practice and convention. It was open to her Honour to accept that evidence or to reject it. In the events that occurred, her Honour accepted the evidence, with the result that the element of the s 200A offence contained in paragraph (1)(c) was proved to her satisfaction beyond reasonable doubt. This element of the offence is concerned with the characterisation of the deliberate act for which s 200A(1)(b) provides as an act that is disrespectful. It is not concerned with the question of whether the plaintiff had a subjective intention or motive that might have qualified the significance of the objectively disrespectful act or the consequences for her that may result. As with earlier arguments propounded by the plaintiff, the matters raised in the context of a challenge to the plaintiff's conviction are more accurately raised in the context of her challenge to the sentence imposed upon her. It seems to me that the plaintiff's concern to distinguish between behaviour that is intrinsically disrespectful and behaviour that causes or communicates disrespect is a concern of no apparent or particular relevance or importance for present purposes.
In considering this ground of appeal, and the plaintiff's various contentions concerning it, it ought not to be assumed that her Honour necessarily accepted or relied, or was required to accept or to rely, upon all of Mr Blanch's evidence. Even though Mr Blanch was of the view that the assessment or determination of whether or not behaviour in court was disrespectful included matters such as whether the judge had communicated any views he or she might have had on the issue, and whether the putative defendant had legal training or the relevance of that person's motive or reasons for acting or behaving in the way under consideration, her Honour was not bound uncritically to accept it or to rely upon it. It is a mistake, in my view, to attempt to identify error in her Honour's approach upon the basis of an overly critical analysis of her reasons for judgment.
I am not satisfied that this ground of appeal has any substance.

Ground 8 - error in holding that the plaintiff knew of the relevant court practice and convention

This ground of appeal draws on what was said by her Honour at [50] of her judgment: "On the evidence of Mr Blanch AM QC, I am satisfied that to stand when a judicial officer enters and leaves the court room, in response to the court officer's verbal command 'all stand', is an established court practice and convention. On the evidence in the current matter I am satisfied that it would have been well understood that this was the practice and/or convention by all who were present in the small court room, Court 13 A of the John Maddison Tower, at the time of the District Court proceedings. I so find because the CCTV footage clearly shows that everyone (not including the defendant) stands in unison in the small cramped space each time the Judge enters and leaves the court room. I also note the evidence that Mr George, Ms Elzahed's son, stood for the Judge on an occasion when Ms Elzahed was seated directly behind him. In my view the evidence supports the conclusion that Ms Elzahed knew from the repeated conduct of everyone around her, including her son, the expected behaviour was that she stand for the Judge, as the Judge entered and left the court room. I am satisfied that the only inference to be drawn from all of the evidence is that Ms Elzahed was so aware, and that she chose to not stand. As such I find the prosecution have established that the failure to stand was an intentional act of the defendant, and that this is proved beyond reasonable doubt. This finding is also supported by the words of her legal Counsel to the Judge, set out above."
The plaintiff maintained that there are a number of errors of law to be found in this passage.
First, her Honour is said to have applied the wrong practice and convention because she referred to standing "in response to the court officer's verbal command". The plaintiff maintained that this was not the court practice or convention relied upon in the prosecution evidence or submissions. Nor was it the practice and convention that was particularised, which was limited to a reference to what occurs when the judge enters or leaves the courtroom. Moreover, her Honour did not forewarn the plaintiff that any such practice of convention might inform her decision and was accordingly procedurally unfair.
Secondly, it was neither part of the charged conduct nor the prosecution case that the plaintiff was aware that there was any such practice or convention that persons in court stand in response to a verbal command.
Thirdly, her Honour's reasoning is said to turn upon a finding that everyone in the courtroom except the plaintiff stood when Judge Balla entered and left the room. This ignores the evidence that Mr Evatt remained seated at these times.
Fourthly, her Honour did not refer to the rational possibility that the plaintiff believed it was not necessary to stand if one had a good reason to remain seated. That possibility was said to be rational at least because Mr Evatt did not stand on some occasions.
In summary, the plaintiff argues that it was not open to her Honour to hold that the plaintiff was aware or knew of the relevant court practice and convention.
It bears repeating, and the plaintiff has otherwise accepted, that her Honour was not of the view that such an awareness or knowledge was a necessary element of the offence. The plaintiff appears to be contending that the trial judge identified a practice and convention of standing when instructed to do so by a court officer and that this identification was erroneous because it differed from the practice identified by the prosecution.
The defendant submitted that the contention was without merit and misunderstands her Honour's reasoning. The defendant emphasised that, as Mr Blanch said in his evidence, the fact that a court officer announces the requirement to stand is one of the reasons why a failure to do so may be considered to be disrespectful. It is also relevant to whether the practice and convention might become known to those present in the court. The defendant argued that her Honour's reference to the role of the court officer does not establish that she mistook the relevant court practice and convention which the plaintiff is alleged to have defied.
Similarly, her Honour's reference to the circumstances in which Mr Evatt failed to stand was in the defendant's view a complete answer to the plaintiff's concern about it.
In my view, this ground of appeal is capable of disposition upon the single basis that the plaintiff's knowledge of the relevant court practice and convention does not, and did not, arise for consideration. It was no part of the prosecution's case that the plaintiff had to know or to be aware of the practice or convention in question. The fact that her Honour formed a view about the plaintiff's position is not to be confused with the existence of relevant error on her part. He Honour considered and expressed opinion on a wide range of issues that both required her decision and those that arose more or less in passing. The fact that her Honour expressed, or appears to have expressed, a view on an irrelevant matter does not elevate that unnecessary consideration to the level of an error if it did not affect the decision at which she arrived.

Ground 9 - error in holding that the plaintiff's failure to stand communicated disrespect

This ground of appeal also draws upon paragraph [55], which is set forth above at [50]. The plaintiff contended that her Honour erred in law by finding that the plaintiff's conduct in fact communicated disrespect. The error contended for is that in making that finding, her Honour denied the plaintiff procedural fairness: it was no part of the prosecution case that the plaintiff's conduct or behaviour had any particular result. The Court Attendance Notices were silent on this aspect. It was not particularised by the prosecution. Her Honour was not addressed on the point. Her Honour gave no indication that it might be found that the plaintiff's behaviour in fact communicated or caused disrespect.
The defendant submitted in response that it necessarily and uncontroversially follows from a conclusion that "behaviour is disrespectful", in terms of s 200A(1)(c), that such behaviour conveys disrespect. Her Honour did not meaningfully depart from the statutory language.
In my view, as with some of the plaintiff's earlier grounds of appeal, the identified issue does not arise. The s 200A(1)(c) test is objective. It is not to the point whether the plaintiff's behaviour was or was not seen or perceived by the judge as disrespectful if it otherwise qualifies as such according to established court practice and convention. Clearly enough, the sensitivities of particular judicial officers will vary. Proof beyond reasonable doubt that an offence created by s 200A has been committed is not tied to proof of whether or not in a particular case the behaviour was perceived as disrespectful by the judicial officer in question. Indeed, as is well known, judges in many circumstances overlook or tolerate certain clearly disrespectful behaviour in order to facilitate the expeditious and uninterrupted conduct of proceedings. That fact does not mean that the conduct of some putative defendant prosecuted under s 200A is incapable of being treated as relevantly disrespectful by a magistrate hearing a charge brought pursuant to it.
This ground of appeal is not made out.

Ground 10 - the implied freedom of political communication

The plaintiff maintained that, having regard to the way in which her Honour construed s 200A, the provision is invalid because it infringes the implied freedom of political communication guaranteed by the Constitution. That is said to be so whether or not a more narrowly framed provision would have been valid.
The plaintiff drew upon the test framed by the High Court in McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 as follows: "[2] As explained in the reasons that follow, the question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this Court and particularly Lange v Australian Broadcasting Corporation and Coleman v Power: A. 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.' 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. B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power: 1. Does the law effectively burden the freedom in its terms, operation or effect? If 'no', then the law does not exceed the implied limitation and the enquiry as to validity ends. 2. If 'yes' to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as 'compatibility testing'. The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government. If the answer to question 2 is 'no', then the law exceeds the implied limitation and the enquiry as to validity ends. 3. If 'yes' to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as 'proportionality testing' to determine whether the restriction which the provision imposes on the freedom is justified. The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test - these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses: suitable - as having a rational connection to the purpose of the provision; necessary - in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom; adequate in its balance - a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom. If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be 'no' and the measure will exceed the implied limitation on legislative power."
The plaintiff also referred to Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [104], slightly revising the second and third questions posed in McCloy: "In its submissions in this matter the Commonwealth, intervening, drew attention to the summary version of this requirement of the Lange test which appears at the outset of the joint reasons in McCloy. The Commonwealth said that it may be understood to suggest that a conclusion as to whether the means adopted to achieve the statutory object are 'reasonably appropriate and adapted' or proportionate to a legitimate end is to be reached at a point before proportionality testing is undertaken. Clearly the statute's purpose must be assessed for compatibility with the constitutionally prescribed system of government at this stage, but in practical terms the means adopted could not be. The point is well made. The commencing words of Questions 2 and 3 stated in McCloy should read: 2. If 'yes' to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 3. If 'yes' to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?"
Her Honour found that s 200A(1) effectively burdens the freedom of political communication. That was accepted both below and in this Court by the defendant.
Her Honour dealt with the second McCloy question at [117] - [121] as follows: "Does the law have a legitimate object or end? [117] I must determine whether the purpose of the law is legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. [118] Our representative and responsible government operates as a Constitutional democracy. An essential part of our Constitutional democracy is an independent judiciary and the rule of law. It is the rule of law which supports the freedom of our citizens from arbitrary and unaccountable decision-making, and which allows for review of laws which may restrict our freedoms. Equality before the law is maintained by the rule of law. A functioning democracy is supported and maintained by the rule of law. [119] The impugned law arose from community concerns about reports of behaviour by litigants before the court, of showing rejection of the role of the courts by engaging in behaviour which by expression of disrespect, demonstrated rejection of the authority of those courts within our democratic system, and disrespect of the rule of law. A particular community concern which the law was said to be addressing, according to the second reading speech, was the behaviour of litigants of not standing for the Judge in court, when such behaviour was seen to be intentionally disrespectful. [120] The law seeks to address a perceived gap in the current law of contempt, to attach liability to disrespectful behaviour in court not otherwise caught by the contempt provisions. This is clear from the words of section 200A and is confirmed also by the second reading speech. [121] I find the purpose of the law, as described above, is compatible with the constitutional imperative of the maintenance of representative and responsible government. As such the law has a legitimate end. The law, which seeks to prevent disrespectful behaviour in court, is a legitimate end of government. Our Constitution provides for a representative and responsible government, and the Constitution also provides for the rule of law, through guarantee of an independent judiciary. The Constitution provides for federal courts which are independent of government and which review the constitutionality of laws. Such independent judicial review provides protection against an erosion of freedoms through legislation enacted by Parliaments. Upholding and protecting the authority of the courts to perform their function, and the respect for the rule of law, is arguably an indispensable part of our democratic system of government. A law which has as its purpose the protection of courts from behaviour - which because of its disrespectful nature asserts that the courts are not invested with decision-making authority or legitimacy, and thereby is behaviour which undermines rule of law - has as its object or purpose maintenance of the rule of law. For reasons already stated this is compatible with the constitutional imperative of the maintenance of representative and responsible government. That this is the object of the law is seen from the terms of the law itself, it is also reflected in the words of the second reading speech: 'Our civil society is based on the rule of law and community respect for our institutions and their practices… Courts are a fundamental part of our democracy in applying our laws of the land'."
The plaintiff complained that it was not clear from these passages what particular purpose or purposes s 200A had. The plaintiff contended that her Honour appears to have been of the view that the purpose of the law was simply to proscribe disrespectful behaviour. That was said to involve error of the type identified in Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 at [163]: "The question is not - as New South Wales and some interveners seek to frame it - whether the burden which the section imposes on communication on governmental or political matter is proportionate to, or reasonably necessary for, preventing or impeding criminal conduct to the same extent as might potentially be achieved by adopting the section's prophylactic prohibition on association. To frame the question in those or similar terms is to pay insufficient regard to the Coleman v Power reformulation of the second Lange question. It is to lose sight of why the analysis is being undertaken. The implied constitutional freedom is a constraint on legislative design. It limits legislative options. The consequence of the implied constitutional freedom is that there are some legitimate ends which cannot be pursued by some means, the result of which in some circumstances is that some ends will not be able to be pursued to the same extent as they might have been pursued absent the implied constitutional freedom. Means which come at too great a cost to the system of representative and responsible government established by the Constitution must be abandoned or refined. Means which are overbroad may need to be narrowed. This consequence of the implied freedom cannot be avoided by an analysis which seeks to circumvent its application by characterising means adopted by the law which burden communication on governmental or political matter as the end the law pursues."
The plaintiff submitted in addition that proscribing behaviour because it is disrespectful is fundamentally incompatible with the constitutionally prescribed system of government. The "maintenance of the civility of discourse" is not compatible with the systems of government: Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 at [87]; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [199].
Finally, with respect to the proportionality of the provision to its relevant end, the plaintiff says that her Honour should have approached the matter by analogy with cases such as Coleman v Power where the provision proscribing insulting words was read to incorporate a mens rea component, meaning an intention to insult, and an additional actus reus component, meaning that the insulting words must be likely to provoke unlawful retaliation. In Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4, the provision proscribing offensive communications was read to be limited to communications that were seriously offensive.
In response to these contentions the defendant took what might be considered to be the preliminary point that courts will not "investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide": Lambert v Weichelt (1954) 28 ALJR 282 at 283; Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53 at [58]; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 at [148].
The defendant referred to Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [33]: "That approach to the determination of constitutional questions means that it is ordinarily inappropriate for the Court to be drawn into a consideration of whether a legislative provision would have an invalid operation in circumstances which have not arisen and which may never arise if the provision, if invalid in that operation, would be severable and otherwise valid. That is so even where the validity of the provision is challenged by a party sufficiently affected by the provision to have standing: a party will not be permitted to 'roam at large' but will be confined to advancing those grounds of challenge which bear on the validity of the provision in its application to that party."
The defendant maintained, as a preliminary point, that the facts in the present case make it unnecessary to decide the plaintiff's constitutional challenge to s 200A(1). This is considered below.
The defendant however submitted that, if that preliminary point did not dispose of this ground of appeal, s 200A(1) did not impermissibly burden the implied freedom. As already noted, the defendant accepted that s 200A was "a law which restricts or prohibits an activity, which is not defined by reference to communication on governmental or political matters, [but which] may operate in some circumstances to restrict or prohibit such communication": Tajjour at [37]. The defendant accepted that the provision imposed an effective burden on the implied freedom. Her Honour reasoned at [115] that it did so "on the basis that the law may act as a disincentive to those who aspire to strongly agitate political causes through the legal system, by criminalising disrespectful behaviour".
The defendant contended that when carefully identified, the burden which s 200A imposes upon the implied freedom is slight, indirect and insubstantial. A slight burden requires a commensurate justification: Brown at [128], [164].
The defendant made the following detailed submissions which were said to support that assessment of the nature and extent of the burden: 1. Only behaviour in court during proceedings is proscribed: s 200A(1)(b). There is no restriction upon a person advocating his or her point elsewhere. 2. Only behaviour that is disrespectful to the court or judge "according to established court practice and convention" is proscribed: s 200A(1)(c). A person is not prevented from advocating his or her point in a manner that is not disrespectful by that standard. The implied freedom is not concerned with "how an individual might want to construct a particular communication": see Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [50]; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 at [381]; Brown at [258]. 3. Section 200A does not target political communication: see Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 at [30]. That is because the conduct of courts and judges is not a matter that is relevant to the system of representative and responsible government which the implied freedom seeks to protect: APLA at [63] - [66]; Hogan at [92] - [93]; John Fairfax Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694; [2000] NSWCA 198 at [83], [170] - [173]. There remains the admitted possibility that some communication that is disrespectful to a court or judge in the course of proceedings might be of a political or governmental nature: see The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [6] - [10]; O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315 at [126]; Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 at [107] - [109]. Generally speaking, in order to be of a political or governmental nature, communication must "involve, expressly or inferentially, acts or omissions of the legislature or Executive Government": APLA at [65]. Section 200A is not designed to restrict communication of this relevant kind and will do so only rarely. 4. The conduct proscribed by s 200A partly overlaps with the existing legal framework, such as the law of contempt, which is not called into question. The particular burden to be justified in the present case is the extent to which s 200A incrementally adds to existing restrictions on political communication: Brown at [188], [397].
The defendant also made the following detailed submissions.
Section 200A is reasonably appropriate and adapted to its purpose of maintaining a standard of acceptable behaviour in courts so as to uphold and protect the authority of the courts and judges to perform their function. It is suitable because it is capable of achieving the identified purpose: McCloy at [80]; Brown at [281]. The provision is closely tied to the conduct of court proceedings and the institution of the court. There is a rational connection between s 200A and the purpose of upholding and protecting the authority of the courts and judges by ensuring an appropriate minimum standard of behaviour in court.
There is no obvious or compelling alternative to s 200A of a significantly lesser burden on the implied freedom that would achieve the purpose of attaching liability to behaviour that tends to undermine the authority of the courts and judges but would not necessarily amount to contempt. The requirement to prove to an objective standard that the behaviour was disrespectful according to established court practice and convention shows that the communication proscribed by s 200A is no broader than is necessary to achieve its object. The necessary criterion does not involve a "free-ranging enquiry" into other forms s 200A might have taken: the provision in its current form is within the "domain of selections" open to the legislature in pursuing its purpose: Brown at [139]; McCloy at [82].
Lastly, s 200A is adequate in its balance: the burden is only slight. It is not grossly disproportionate to the important legislative purpose of protecting the authority of the Courts and judges: Brown at [290].
In my opinion, the preliminary point disposes of this ground of appeal. The plaintiff does not contend that she was engaged in political communication when she failed to stand for Judge Balla. However, and importantly, even if she did or had, the evidence does not otherwise support the contention that the plaintiff was engaged in a political communication.
A recent consideration of this issue is to be found in the High Court's decision in Clubb v Edwards, Preston v Avery [2019] HCA 11. Mrs Clubb was convicted in the Victorian Magistrates' Court of an offence against s 185D of the Public Health and Well-being Act 2008 (Vic) of the prohibited act of communicating about abortions with persons accessing premises at which abortions are provided, in a way that was reasonably likely to cause anxiety or distress. Mr Preston was convicted in the Tasmanian Magistrates' Court of breaching s 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) which prohibits protests in relation to terminations that are able to be seen or heard by a person accessing premises at which terminations are provided. Both acts were conducted within the 150m safe access zone, designed to protect the safety and well-being of persons accessing premises where terminations are provided.
The appellants challenged their convictions on the basis that the legislation under which they were convicted was invalid because it impermissibly burdened the implied freedom of political communication. In each case, the determination of that ground of appeal was removed to the High Court pursuant to s 40 of the Judiciary Act 1903 as it involved Constitutional interpretation.
Was Mrs Clubb engaged in political communication when she handed out pamphlets? The plurality (Kiefel CJ, Bell and Keane JJ) said this: "[29] There is force in the submission of the Attorney-General. The implied freedom protects the exercise by the people of the Commonwealth of a free and informed choice as electors. A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial. In Cunliffe v The Commonwealth, Brennan J (as he then was) said: 'The immunity from legislative control which the Constitution implies in order to secure freedom of political discussion does not preclude the making of laws to control any activity the control of which might be politically controversial.' [30] In APLA Ltd v Legal Services Commissioner (NSW), Hayne J, referring to the observations of Brennan J in Cunliffe, explained that laws that seek to control 'communications about events (actual or hypothetical) and about rights and remedies ... are not directed at communications about whether the happening of events should be regulated differently or whether available rights and remedies should be changed'. [31] In the present case, the communication effected by the handing over of the pamphlet by Mrs Clubb lacked any evident connection with the electoral choices to be made by the people of the Commonwealth. It was designed to persuade a recipient against having an abortion as a matter for the individual being addressed. It was not addressed to law or policy makers, nor did it encourage the recipient to vote against abortion or to take part in any public debate about the issue. It may therefore be accepted that the proscription of this communication did not involve an interference with the implied freedom."
The plurality noted at [28] that Ms Clubb had argued that the High Court should "hold that her communications were political in the requisite sense, and further that the communication prohibition could not be severed into valid and invalid areas of application". However, according to Gageler J at [131], Mrs Clubb "does not assert that she was engaged in any form of political communication when she attempted to hand a pamphlet to a couple outside the East Melbourne Fertility Control Clinic". Nettle J noted at [240] that, by reason of the procedural history of the matter, "no finding has yet been made as to whether Mrs Clubb's communication is on a government or political matter". Similarly, Gordon J noted at [328] that Mrs Clubb, "was not in a position to mount, and did not mount, a positive case that she was engaged in political communication". Edelman J said at [413] that "Mrs Clubb submitted that she did not have sufficient findings of fact to make a positive case that her contravention involved political communication".
In the result, the High Court would appear to have made no finding either way about whether Mrs Clubb was or was not engaged in political communication. However, the plurality at [25], Nettle J at [216], Gordon J at [330] and Edelman at [412] all considered what their Honours referred to as "the threshold issue", namely, whether it would be inappropriate for the court to determine whether the impugned provision impermissibly burdened the implied freedom of political communication in the absence of evidence that Mrs Clubb was engaged in political communication.
In the present case, I am not satisfied that the plaintiff was ever at any time engaged in a political communication. This is for a number of reasons.
First, there was no evidence before the Local Court that the plaintiff's decision not to stand for Balla DCJ in contravention of s 200A involved a political communication on a government or political matter.
Secondly, the plaintiff through her counsel in the Local Court made it clear that her disinclination to stand was based on her religious belief to the effect that she stood for no-one but Allah. That is not a political decision and her refusal to stand was not a political communication. The plaintiff was not by her actions engaged in an attempt to persuade or to convince others to adopt her religious beliefs, nor was it a statement about the views of anyone else who might disagree with them or who chose not to embrace them. According to what the plaintiff's counsel told her Honour, the plaintiff had reasons that were personal to her and she was motivated in her conduct by a desire to conform to those personal or private beliefs.
Thirdly, if the reasons or motives of the plaintiff are irrelevant in this context, and if the behaviour is instead to be viewed from the standpoint of whether the putative communication was capable of being taken as a political communication by others, the plaintiff's refusal to stand viewed in this way was either not a communication at all or, if it was, was not a communication upon an obvious or discernible political issue.
As the defendant contented, the implied freedom exists to protect "political communication, not communication in general": McCloy at [119]. Non-verbal conduct may be communicative: Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31 at 594-595. However, accepting that the plaintiff was engaged in communication in general, there was no evidence that she was engaged in political communication. Accepting that there may be some dispute about the precise basis for the plaintiff's refusal to stand, it appears not to rise higher than an assertion on her behalf that she is prevented from doing so by reason of her religious beliefs. Adherence to a religious belief is not, without more, political. Nor does it necessarily communicate anything "capable of bearing on electoral choice": Brown at [188]; Lange at 560. The defendant submitted that the communication in issue in these proceedings lacked the "close proximity" to the constitutionally prescribed system of representative and responsible government that is required in order to engage the protection of the implied freedom": APLA at [68].
I agree. The plaintiff's refusal to stand for her Honour lacks any discernible connection with the electoral choices to be made by the people of the Commonwealth of Australia. Indeed, the plaintiff's conduct is unaccompanied by an identifiable or recognisable political content of any type.
The plaintiff specifically contended before me, first, that when determining whether a law infringes the implied freedom, the relevant inquiry is not into the particular conduct of the plaintiff, but rather the lawfulness of the statute in the abstract, and secondly, that the relevant inquiry was not one directed to looking at the reason or motive of someone in the plaintiff's position but rather to looking at whether the communication was capable of affecting political communication or capable of being taken as a political communication by others. She submitted that the basis of the implied freedom was the need for electors to have available to them information relevant to their political choices. The plaintiff submitted therefore that the focus must be not on a person's particular conduct or the state of mind of any person engaging in communication but upon whether communications of that kind might reasonably bear on political choices. While that may be an accurate general analysis of the approach to determining whether or not a particular provision unduly burdens the implied freedom, the discussion in Clubb makes it clear that one does not get to a consideration of those issues unless the particular so-called communication passes the threshold test of constituting a political communication. In my view, the plaintiff's conduct did not amount to political communication. It is therefore inappropriate for me to determine whether the impugned provision impermissibly burdens the implied freedom of political communication in the absence of evidence that the plaintiff was engaged in political communication.

Ground 11 - Chapter III of the Constitution

The plaintiff contends that s 200A has two defects arising under Chapter III of the Constitution. The first is said to flow from the High Court's recent comprehensive restatement of the principles governing the interaction between State laws and federal jurisdiction in Rizeq v State of Western Australia (2017) 262 CLR 1; [2017] HCA 23.
The proceedings before Balla DCJ were in federal jurisdiction. The Commonwealth was a defendant in the proceedings: see Judiciary Act 1903 s 39; Commonwealth Constitution s 75(iii). The majority in Rizeq at [57] said this: "The qualification concerning the limitation on the capacity of non-federal laws to affect federal courts, expressed in Fencott v Muller, was formulated in that case in the specific context of examining the sources of law applicable to the determination of a matter within the federal jurisdiction which had been conferred on a federal court under s 77(i) of the Constitution. The incapacity so identified in that context is a particular manifestation of a more general incapacity of any law enacted other than by the Parliament of the Commonwealth to affect the exercise of federal jurisdiction by any court. That more general incapacity manifests also in the incapacity of a State Parliament to affect the exercise of federal jurisdiction by a State court."
The plaintiff maintained that in its "purported operation" in the hearing before Balla DCJ, s 200A was a law "affecting" the exercise of federal jurisdiction. Section 200A purports to regulate the behaviour of parties and witnesses to the proceedings. According to this argument, if s 200A applied to the proceedings it was apt to prohibit parties and witnesses from engaging in behaviour that would otherwise affect the conduct of the proceedings. The plaintiff suggested, as an example of this, the manner in which evidence was given and who might be present in court. Section 200A operated in a similar way to the District Court's existing contempt powers, but operated whether or not the judge was content for the behaviour to occur.
The plaintiff made the following written submission in this context: "This is not the end of the matter for Chapter III purposes. A State law affecting the exercise of federal jurisdiction may nevertheless apply in a proceeding in federal jurisdiction if, but only if, it is picked up and applied by s 79 of the Judiciary Act. Rizeq also authoritatively explains the operation of s 79. Section 79 has a 'narrow but important operation': Rizeq at [64]. That operation is to 'bind' a court by giving it powers that it otherwise would not have or regulating the exercise of powers otherwise given to the Court: see Rizeq at [103]; see also the text of s 79 and the discussion of R v Oregan; Ex parte Oregan (1957) 97 CLR 323 in Rizeq at [95]. It is not part of the operation of s 79 to pick up a legislative norm which affects the exercise of a court's jurisdiction but does not confer powers or impose duties on the Court itself. The High Court referred to a law of that kind in Rizeq at [105], when it held that s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) was not picked up and applied by s 79."
So far as concerns the existence of the second alleged defect, the plaintiff submitted that Chapter III contains an implication to the effect that a law may not unduly burden a party's participation in the exercise of Commonwealth judicial power and s 200A, as construed by her Honour in the Local Court, is inconsistent with that implication.
Counsel for the plaintiff described this second defect allegation as raising a "novel point". His written submissions in support of the contention are comprehensive and in the circumstances it is appropriate that they are recorded below in full.
First, Chapter III proscribes "State legislation that attempts to alter or interfere with the working of the federal judicial system set up by Ch III": Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 at [37]; APLA at [78]. Further, neither the Commonwealth nor the State Parliaments can "legislate in any manner that would impair the investiture of judicial power in the courts specified in s 71 of the Constitution": APLA at [77]; see also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 at 115.
Secondly, the content of the basal requirements referred to in Fardon and APLA is informed by the scheme of Ch III.
In accordance with that scheme, Ch III "gives practical effect to the assumption of the rule of law in the development of a free and confident society": Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [61]. The rule of law to which Ch III gives effect "depends upon the existence and availability of courts and tribunals to which citizens may resort": Johnson v Gore Wood & Co [2002] 2 AC 1. The "rule of law" also protects equality before the law: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [52].
A further central feature of Ch III is the open-court principle: Hogan at [20], [90]. It has been said that "[t]he principle of open justice is one of the most fundamental aspects of the system of justice in Australia": Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [32]. The open court principle "ensures that citizens have access to the courts": Canadian Broadcasting Corp v Canada (Attorney-General) [2011] 1 SCR 19 at [1].
Thirdly, the Constitution does not "permi[t] of different grades or qualities of justice": Kable at 103; Condon v Pompano (2013) 252 CLR 38; [2013] HCA 7 at [123]. One consequence of that is that "[t]hose persons who may invoke the exercise in their favour of the judicial power of the Commonwealth … are not limited by any particular constitutional status": Vasiljkovic v The Commonwealth (2006) 227 CLR 614; [2006] HCA 40 at [83]; see also at [157].
Fourthly, the Courts have identified various kinds of laws which might infringe the requirement that State and Commonwealth laws not impermissibly impede or interfere with the exercise of Commonwealth judicial power.
In APLA, Gummow J held that a law which forbade legal representation before courts exercising federal jurisdiction would contravene Ch III: at [245]; see also APLA at [30].
In SZSPI v Minister for Immigration and Border Protection (2014) 233 FCR 279, the Full Court of the Federal Court observed that it was "important that policies and practices of the Department do not impede or undermine access to the Court by persons seeking to invoke the exercise of judicial power under Ch III" and that there would be "deep questions of a Constitutional character" if a "policy or practice of the Department … ha[d] the effect of impeding or prejudicing persons seeking orders from the Court in respect of statutory or other rights": at [40], [50].
In DC v Secretary, Department of Family and Community Services [2017] NSWCA 225, Sackville AJA referred to the decision of the United Kingdom Supreme Court in R (Unison) v Lord Chancellor [2017] WLR 409, which had declared a "constitutional right of unimpeded access to the courts". Sackville AJA observed that Australian courts "seem to have given no consideration to the possibility that the right of access to the courts is an element of the rule of law that perhaps might have constitutional dimensions" and that "[if] so, legislation authorising court fees that effectively deter people from seeking to enforce their rights might have to be tested against constitutional principles": at [167].
Fifthly, Quick and Garran referred to a similar proposition in their foundational work, The Annotated Constitution of the Australian Commonwealth (1901) at 959. There, they said: "[t]he people of the Commonwealth having a right to sue in the Federal courts in the prosecution of causes specified by the Constitution, a State could not obstruct the citizens of other States in suing its own citizens in the Federal courts". Equally, a State could not obstruct its own citizens from suing the Commonwealth.
Sixthly, s 200A(1), in its application to proceedings in federal jurisdiction, unduly impedes the exercise of federal jurisdiction. It unduly impedes the rights of individuals to attend Court, invoke the Commonwealth judicial power and have their proceedings lawfully determined. The provision operates on critical participants in the judicial process, parties and witnesses. It purports to regulate those persons' conduct in Court. It purports to proscribe conduct that would not constitute contempt of Court. It purports to proscribe conduct that the presiding judge does not consider to be problematic or does not consider should be the subject of sanction. It operates to proscribe and deter the attendance of parties and witnesses at court who hold minority political or religious beliefs which, in their expression, are capable of being perceived to be disrespectful. It operates to proscribe and deter the giving of evidence that is true, but may be perceived to be disrespectful. It obstructs the participation of citizens in the judicial process and, in particular, the participation of parties in the exercise of their federal rights against the Commonwealth.
The plaintiff contended that s 200A (1) also operates differentially on represented and unrepresented litigants. A forcefully put case can sometimes appear, or even be, disrespectful. Recusal applications are a common example. So is vigorous cross-examination on credit. Section 200A(3) has the effect that a party that is represented by a lawyer is not inhibited from putting his or her case forcefully. But there is no similar exclusion for self-represented litigants. This is a further hindrance on the exercise of federal rights.
So far as concerns the plaintiff's first point, I think it is incorrect to assume, or to ague on the basis of an assumption, that s 200A affects the exercise of the jurisdiction of any court to which it may apply. There is in my view a clear distinction to be drawn between a provision which limits or controls or restricts the jurisdiction of a court or limits or controls or restricts access by a prospective party to participate in the judicial process in that court on the one hand and a provision that merely regulates the procedure of the court and the conduct of parties within the court on the other hand.
The plaintiff's reliance upon what was said by the High court in Rizeq is instructive. The majority summarised the argument in that Court in the following terms: "[35] The State of Western Australia, through its Director of Public Prosecutions, indicted Mr John Rizeq, a resident of New South Wales, in the District Court of Western Australia on two charges of offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). After a trial by a jury of 12 persons, the jury was unable to reach a unanimous verdict on either charge. The decisions of 11 of the 12 jurors were taken by the District Court to be verdicts of guilty under s 114(2) of the Criminal Procedure Act 2004 (WA). The District Court accordingly convicted Mr Rizeq of both offences. [36] Mr Rizeq sought leave to appeal against the convictions to the Court of Appeal of the Supreme Court of Western Australia under Pt 3 of the Criminal Appeals Act 2004 (WA). The Court of Appeal granted leave to appeal on two grounds but dismissed the appeal. Mr Rizeq now appeals, by special leave, to this Court from the dismissal by the Court of Appeal of his appeal on one of those grounds. [37] Mr Rizeq's argument on the appeal proceeds from an uncontested premise. The premise is that the controversy as to his criminal liability which was the subject of his indictment by the State of Western Australia was a matter between a State and a resident of another State within the meaning of s 75(iv) of the Constitution, as a consequence of which the District Court was exercising federal jurisdiction under s 39(2) of the Judiciary Act in conducting the trial and entering the convictions. [38] The argument is that, because the District Court was exercising federal jurisdiction in the trial, Western Australian law was incapable of valid application to the determination of his criminal liability in that trial. Section 6(1)(a) of the Misuse of Drugs Act could not, and therefore did not, apply as a law of Western Australia. Instead, so the argument goes, the text of s 6(1)(a) was picked up and applied as a law of the Commonwealth by s 79 of the Judiciary Act. The result was that the trial in the District Court was a trial on indictment of offences against a law of the Commonwealth to which s 80 of the Constitution applied to require the verdicts of the jury to be unanimous."
In Rizeq at [7], the Chief Justice said this: "A State court invested with federal jurisdiction may apply federal laws. It is well accepted that in federal jurisdiction State and federal courts can apply both Commonwealth and State laws, as the matter in question requires. Commonwealth and State laws, together with the common law of Australia, comprise a 'single though composite body of law' to be applied. A matter determined in federal diversity jurisdiction, to which s 75(iv) of the Constitution refers, may involve little, if any, Commonwealth law. The point presently to be made is that the investment of 'federal jurisdiction' is not a direction as to the law to be applied. It is the investment of authority for a State court to adjudicate." [Emphasis added]
In dismissing the appeal, the majority went on to say this: "[103] Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws. What State laws relevantly cannot do within the limits of State legislative capacity is govern the exercise by a court of federal jurisdiction. A State law can determine neither the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised. A State law cannot in that sense 'bind' a court in the exercise of federal jurisdiction, and that is the sense in which that word is used in s 79 of the Judiciary Act. The operation of s 79 is limited to making the text of the State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction. … [105] Section 6(1)(a) of the Misuse of Drugs Act, in contrast, is a law having application independently of anything done by a court. It is squarely within State legislative competence and outside the operation of s 79 of the Judiciary Act. It applied in the trial of Mr Rizeq as Western Australian law just as it applied to him before any court was called upon to exercise jurisdiction in relation to the charges brought against him"
Section 79(1) of the Judiciary Act 1903 provides as follows: "79 State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."
The plaintiff argued that the vice in s 200A is that it has the Parliament of New South Wales in effect purporting to tell the Commonwealth Parliament how federal proceedings should be conducted in a New South Wales court invested with federal jurisdiction. However, as Kiefel CJ made plain in Rizeq, the investment of "federal jurisdiction" is not a direction as to the law to be applied. It is the investment of authority for a State court to adjudicate. Provided, and to the extent that, there is no inconsistency between the law of New South Wales and a law of the Commonwealth, the law of New South Wales is valid. I do not accept that s 200A relevantly "affects" the exercise of federal jurisdiction. Section 200A does not illegitimately operate or purport to interfere with the authority of a State court to adjudicate upon the dispute joined between the plaintiff and the Commonwealth in any way. Section 200A does not within the limits of State legislative capacity operate or purport to govern the exercise by a court of federal jurisdiction. Section 200A neither determines the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised.
As the defendant has emphasised, while the behaviour giving rise to an offence against s 200A must necessarily occur in a courtroom, the commission of such an offence is independent of the jurisdiction that the court happens to be exercising at that particular time. Proceedings that may later be brought in relation to the offence are also brought separately and independently of that jurisdiction.
The Western Australian offence considered by the High Court in Rizeq was "a law having application independently of anything done by a court": at [105]. Subject to any question of inconsistency with a Commonwealth law, which the plaintiff does not suggest, there is no reason why s 200A cannot apply: Rizeq at [103]. The fact that an offence against s 200A may be committed in a State courtroom when federal jurisdiction is being exercised does not take s 200A beyond the legislative competence of the New South Wales parliament.
The second way in which the plaintiff argued the Chapter III point seems to me to be no more than what might be called a practical manifestation of the first point. In other words, the plaintiff has sought by way of a series of examples to give content to the first complaint that she makes. The plaintiff maintains that s 200A, in the various ways described, illegitimately constrains or restricts access to courts exercising federal jurisdiction. The plaintiff contends that Chapter III contains an implication that a law may not unduly burden a party's participation in the exercise of Commonwealth judicial power and that s 200A is inconsistent with that implication.
Assuming, without deciding, that Chapter III contains the implication contended for by the plaintiff, I disagree that s 200A is inconsistent with the implication. In my view, s 200A does not burden a party's participation in the exercise of Commonwealth judicial power or in any way. Section 200A operates alike and consistently upon all parties wishing to participate in the exercise of Commonwealth judicial power. By reference to the plaintiff's own particular circumstances as an example, the criminalisation of intentional behaviour that is disrespectful to the Court or to the Judge is no more than what amounts in effect to a limited codification of the law of contempt. It has not been, and in my opinion could not be, argued that the laws governing contempt of court either unduly restrict the plaintiff's access to any court or to a court exercising federal jurisdiction or that such laws unfairly discriminate against the plaintiff. Section 200A is an analogue of the law of contempt. The provision does not limit or restrict, and certainly does not unduly limit or restrict, any party's access to a court exercising federal jurisdiction, or indeed any jurisdiction at all.

Conclusion

It follows in my opinion that none of the plaintiff's first eleven grounds of appeal is made out.

Ground 12 - sentence

The only submissions on sentence made by the plaintiff were to the effect that the sentence imposed by her Honour was or may arguably have been based on the allegedly erroneous findings that she made and which formed the basis for the plaintiff's contentions in support of grounds 4, 5 and 6. Although I have rejected the plaintiff's contention that her Honour's findings, challenged in these grounds, were wrong in law, I am concerned that, as my reasons above indicate, her Honour's stated views on the matters complained of in these grounds may have influenced her sentencing discretion. That may give rise to an argument that, to the extent that she took an irrelevant matter into account, her Honour's sentencing discretion might arguably have miscarried. Related to this is the possibility that the plaintiff may on one view have been denied procedural fairness in the sentencing proceedings to the extent that her Honour came to a view about what sentence to impose by taking account of matters without alerting the plaintiff to the possibility that she may do so.
I appreciate that the errors for which the plaintiff contended are all to be found in her Honour's original reasons for judgment published on 4 May 2018 and so were available to the parties well before the sentencing proceedings on 11 July 2018. Presumably, therefore, any way in which the plaintiff might have considered that these errors were relevant to the sentencing exercise could have been raised in submissions. However, that is not an adequate answer to what the plaintiff may now wish to argue with the benefit of her Honour's written remarks on sentence. My present difficulty is that I have not been provided with submissions that properly or sufficiently address the concerns that I have raised in respect of the extent to which the matters referred to in the context of grounds 4, 5 and 6 above may have been relevant to the exercise of her Honour's sentencing discretion.
Although I have indicated that I intend to dismiss the plaintiff's appeal against her conviction, I am not prepared to dispose of the plaintiff's appeal against her sentence, and therefore finally to determine these proceedings, until the parties have been given an opportunity to address the issues raised in this appeal concerning the plaintiff's challenge to the sentence imposed upon her.
In the circumstances I will at this stage do no more than adjourn the proceedings to a date convenient to the parties and to the Court in order that the parties may in the meantime consider whether they wish to provide me with further submissions on sentence if thought appropriate.

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: 07 June 2019

Public Health and Well-Being Act 2008(Vic)

Public Health and Well-being Act 2008(Vic)

lth Constitution, s 75 Crimes (Appeal and Review Act) 2001 (NSW), ss 52, 53, 55 District Court Act 1973 (NSW), s 200A Judiciary Act 1903 (Cth), ss 39, 40, 79 Public Health and Well-Being Act 2008 (Vic), s 185D Reproductive Health (Access to Terminations) Act, s 9(2) Cases Cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 Berwin v Donohoe (1915) 21 CLR 1; [1915] HCA 79 Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 Canadian Broadcasting Corp v Canada (Attorney-General) [2011] 1 SCR 19 Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53 Clubb v Edwards, Preston v Avery [2019] HCA 11 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [199] Condon v Pompano (2013) 252 CLR 38; [2013] HCA 7 DC v Secretary, Department of Family and Community Services [2017] NSWCA 225 Director of Public Prosecutions v Poniatowska (2011) 244 CLR 408; [2011] HCA 43 Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 John Fairfax Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694; [2000] NSWCA 198 Johnson v Gore Wood & Co [2002] 2 AC 1 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 Lambert v Weichelt (1954) 28 ALJR 282 Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31 McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Mitchell v John Heine (1938) 38 SR (NSW) 466 Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 Moutia Elzahed v Commonwealth of Australia [2016] NSWDC 353 Northern Territory Aboriginal Justice Agency Limited v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315 Oates v Williams (1998) 84 FCR 348 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578; [2010] SASCFC 19 R (Unison) v Lord Chancellor [2017] WLR 409 R v Cain [1976] QB 496 R v Iannelli (2003) 56 NSWLR 247; [2003] NSWCCA 1 R v Moutia Elzahed (No 2) [2018] NSWLC 13 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Rizeq v State of Western Australia (2017) 262 CLR 1; [2017] HCA 23 Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 Robinson v Eureka Operations Pty Ltd (2008) 192 A Crim R 234 Shrimpton v The Commonwealth (1945) 69 CLR 613; [1945] HCA 4 SZSPI v Minister for Immigration and Border Protection (2014) 233 FCR 279 Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 Traveland Pty Ltd v Doherty (1982) 41 ALR 563 Vasiljkovic v The Commonwealth (2006) 227 CLR 614; [2006] HCA 40 Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 Texts Cited: Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) Category: Principal judgment Parties: Moutia Elzahed (Plaintiff) Lida Kaban (Defendant) Representation: Counsel: D P Hume (Plaintiff) A Mitchelmore SC with ES Jones (Defendant)

Solicitors: Zali Burrows Lawyers (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2018/269838 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court Jurisdiction: Crime Citation: R v Moutia Elzahed (No 2) [2018] NSWLC 13 Date of Decision: 4 May 2018 Before: Magistrate Huntsman

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