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[2008] FCA 1453
Federal Court of Australia
2008-09-25
Bennett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The substantive applications in these proceedings seek orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') requiring the respondents to prepare and furnish statements of reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to: · a decision of the respondent in ACD 1/2008 to make no further inquiry into alleged breaches of the Parliamentary Service Code of Conduct by various parties; and · a decision of the respondent in ACD 2/2008 not to refer Mr Priestley's allegations of corrupt conduct by the Secretary of the Department of Parliamentary Services and others for advice and/or inquiry. 2 By notices of motion filed on 13 February 2008, the respondents sought to have the applications dismissed pursuant to s 31A of the Federal Court Act. Mr Priestley challenges the constitutionality of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules made in furtherance of that section ('the constitutional challenge'). It is the constitutional challenge that is the matter presently for determination. 3 As set out in Priestley v Godwin [2008] FCA 1179, Mr Priestley made a number of applications for me to disqualify myself from determining the constitutional challenge. I refused to disqualify myself on three of the grounds advanced by Mr Priestley. I reserved my decision in respect of a fourth ground based on the contention that, by s 79 of the Judiciary Act 1903 (Cth) ('the Judiciary Act'), the Human Rights Act 2004 (ACT) ('the Human Rights Act') applies to these proceedings, being heard in the Australian Capital Territory ('the ACT') ('the fourth ground').
Section 79 of the Judiciary Act 4 Section 79 of the Judiciary Act relevantly provides: 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. (emphasis added) … (3) This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following: (a) limiting the period for bringing the suit to recover the amount; (b) requiring prior notice to be given to the person against whom the suit is brought; (c) barring the suit on the grounds that the person bringing the suit has charged someone else for the amount. 5 As was pointed out in Solomons v District Court of New South Wales (2002) 211 CLR 119 at [22], s 79 is couched in mandatory terms. The section is addressed to courts exercising federal jurisdiction and is limited to cases to which the State or Territory laws in question are applicable (Solomons at [23]). 6 It is, as McHugh J observed in Solomons at [37], a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State (or Territory) is a reference to courts, matters, things and persons in that State (or Territory). Statutory provisions can be "picked up" by s 79 even though they are expressed in terms applying specifically to State or Territory courts (Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [72] per Gleeson CJ, Gaudron and Gummow JJ citing Kruger v The Commonwealth (1997) 190 CLR 1 at 140 per Gaudron J; Solomons at [58] per McHugh J). There may also be statutory provisions couched in terms which make it impossible for them to be "picked up" (Edensor at [72]-[74] per Gleeson CJ, Gaudron and Gummow JJ; Solomons at [24] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). 7 A court exercising federal jurisdiction has no jurisdiction to apply an Act which, upon its proper construction, applies only to State matters (Solomons at [33] per McHugh J). Justice McHugh commented in Edensor at [141] and affirmed in Solomons at [59] that it is not the literal interpretation of a State Act that determines whether it is applied in Federal Courts but the substance of the Act. The nature of some State and Territory statutes may make them inapplicable to proceedings in the federal jurisdiction. 8 Mr Priestley submits that s 21(1) of the Human Rights Act creates judicially enforceable rights regarding the independence and impartiality of courts which must be recognised by a court exercising jurisdiction in the ACT. This raises two issues: · Whether s 21(1) of the Human Rights Act applies to proceedings in the Federal Court in relation to the constitutionality of a law of the Commonwealth, in this case, the Federal Court Act, and of the Federal Court Rules made pursuant to that Commonwealth Act. · Whether there has been a breach of the rights recognised in s 21(1) of the Human Rights Act.
Does s 21(1) of the Human Rights Act apply to these proceedings? 9 Section 21(1) of the Human Rights Act provides: Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing. 10 Mr Priestley recognises that s 21(1) of the Human Rights Act cannot apply of its own force in these proceedings. He relies on s 79 of the Judiciary Act. Mr Priestley submits that, as there is no provision in a Commonwealth Act for the subject matter of s 21(1) of the Human Rights Act, that section is binding. Mr Priestley contends that the Federal Court Act leaves room for the functions and requirements conferred by s 21(1) of the Human Rights Act. That is, he says, a Commonwealth law does not "otherwise provide" for the subject matter of s 21(1). 11 The respondents accept that s 79 of the Judiciary Act may operate to "pick up" at least parts of the Human Rights Act in relation to matters before the Federal Court sitting in the ACT. They submit, however, that even if s 21(1) of the Human Rights Act is capable of being picked up by s 79 of the Judiciary Act, it can have no operation in relation to these proceedings because these proceedings do not require the Court to interpret or apply a law of the ACT. 12 Section 21(1) of the Human Rights Act is in Part 3 of that Act. Part 3 sets out the civil and political rights which are defined, for the purpose of the Human Rights Act, in s 5 as "human rights". These human rights are given effect by Part 4 of the Human Rights Act. 13 There is nothing in Part 4 of the Human Rights Act that purports to give the human rights any operation in relation to the matters in issue in these proceedings. That is not, however, conclusive of whether or not the Human Rights Act applies. 14 Sections 29 and 30 of the Human Rights Act, which are both in Part 4, provide: 29 Application of pt 4 This part applies to all Territory laws. (emphasis added) 30 Interpretation of laws and human rights So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights. (emphasis added) "Territory law" is defined in the Dictionary to the Human Rights Act to mean 'an Act or statutory instrument'.
15 The Legislation Act 2001 (ACT) provides: 7 Meaning of Act generally (1) An Act is an Act of the Legislative Assembly. (2) An Act of the Legislative Assembly is a law (however described or named) made by the Legislative Assembly under the Self-Government Act. (3) A reference to an "Act" includes a reference to a provision of an Act. 13 Meaning of statutory instrument (1) A statutory instrument is an instrument (whether or not legislative in nature) made under - (a) an Act; or (b) another statutory instrument; or (c) power given by an Act or statutory instrument and also power given otherwise by law. (2) A "statutory instrument" includes a subordinate law, disallowable instrument, notifiable instrument and commencement notice. (3) A reference to a "statutory instrument" includes a reference to a provision of a statutory instrument. 16 It follows that the Human Rights Act applies to the interpretation of Territory laws. 17 In neither the constitutional challenge nor the substantive proceedings is the Court called upon to interpret or apply a Territory law, but laws of the Commonwealth. Section 79 of the Judiciary Act does not change the meaning of the State or Territory Act that is "picked up", nor does it operate to give a State or Territory law a new or extended meaning when it is made applicable in federal jurisdiction (Edensor at [134] per McHugh J; Solomons at [60] per McHugh J). For these reasons, s 79 of the Judiciary Act does not operate to make s 21(1) of the Human Rights Act applicable to the present proceedings, which involve the application and interpretation of Commonwealth, not Territory, laws. 18 It follows that the Human Rights Act has no application to the constitutional challenge.
The rights recognised in s 21(1) of the Human rights act 19 I have already dealt with various applications by Mr Priestley that I disqualify myself on the grounds of reasonable apprehension of bias and an asserted lack of independence and impartiality because, he says, neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. In doing so, I applied the common law test as described in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Priestley at [24]). In Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [66], Gummow, Hayne and Crennan JJ described the requirements as discussed by the High Court in Ebner in terms that included the requirement that a court or tribunal must be "independent" and "impartial". Those are the same terms as used in s 21(1) of the Human Rights Act. Section 21(1) does not relevantly change or add to the test as laid out in Ebner and Forge. It is the same test that I applied in Priestley. 20 Mr Priestley also submits that 'as a matter of law and policy', s 5 of the Federal Court Act 'leaves room for the operation of section 21(1) by virtue of the Commonwealth's obligations under Article 14.1 of the ICCPR [the International Covenant on Civil and Political Rights]'. Article 14.1 relevantly provides for an entitlement to 'a fair and public hearing by a competent, independent and impartial tribunal established by law'. This does not relevantly add to Mr Priestley's submissions on the application of s 21(1) of the Human Rights Act. 21 Mr Priestley has not advanced any arguments as to my competence or independence, or the appearance of independence, or of impartiality, that were not advanced in his previous applications. His submission remains based on his contention that neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. That has been dealt with in Priestley. The result is the same under the common law and, if it applied, under s 21(1) of the Human Rights Act. In his submission that the requirements in Article 14.1 of the ICCPR must be considered separately by reason of s 21(1) of the Human Rights Act, Mr Priestley has not added to the substance of the grounds for disqualification or recusal that he made previously.
Conclusion 22 It follows that the application that I disqualify myself from determining these proceedings on the fourth ground should be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
Associate: Dated: 25 September 2008 The Applicant was self represented
Solicitor for the Respondents: Australian Government Solicitor
Priestley
Godwin
(2001) 204 CLR 559
(2000) 205 CLR 337
(2006) 228 CLR 45
(2002) 211 CLR 119
(1997) 190 CLR 1