FEDERAL COURT OF AUSTRALIA

Juries Against Illegal Laws Incorporated v The State of Tasmania [2010] FCA 578

THE COURT ORDERS THAT:

1.                  Pursuant to s 31A (2) (b) of the Federal Court of Australia Act 1976 (Cth) judgment is given for the respondent against the applicant.

2.                  The applicant pay the costs of the respondent to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant, Juries Against Illegal Laws Incorporated (“JAILI”) seeks declaratory relief pursuant to s 39B (1A) (b) of the Judiciary Act 1903 (Cth) that the Family Violence Act 2004(Tas) (“the State Act”) is invalid.

2                     JAILI submits that the State Act is invalid because it confers jurisdiction on the Supreme Court of Tasmania (“the State Court”), which is inconsistent with the State Court’s exercise of judicial power under s 77(iii) of the Commonwealth Constitution (“the Constitution”).  Section 77(iii) of the Constitution permits the Commonwealth Parliament to make laws investing a State Court with federal jurisdiction.

3                     JAILI also contends that the State Act is invalid because it permits the Family Law Court to have regard to findings of family violence made under it, thereby conferring non-judicial power on the Family Law Court.

4                     Finally, JAILI submits that the State Act is inconsistent with the Family Law Act 1975 (Cth) pursuant to s 109 of the Constitution.

5                     Other orders are sought pursuant to the Australian Human Rights Commission Act 1986(Cth) and for damages in respect of alleged practices engaged in by the State of Tasmania under the State Act.

6                     The application before this Court is accompanied by a statement of claim.  On the day JAILI filed its application and statement of claim, it also filed a notice of constitutional matter under s 78B of the Judiciary Act.  Service of that notice has not resulted in any State or Territory, other than Tasmania, seeking to be involved in the proceeding.

7                     By motion dated 30 April 2010, the State of Tasmania applies for judgment against JAILI under s 31A of the Federal Court of Australia Act 1976(Cth) (“the Federal Court Act”) on the basis that the Court should be satisfied that JAILI has no reasonable prospect of successfully prosecuting the proceeding.  In the alternative, the State of Tasmania seeks to strike out the statement of claim under O 11 r 16 of the rules of this Court on the basis that it discloses no reasonable cause of action, is frivolous, vexatious and embarrassing.  In the further alternative, the State of Tasmania seeks to have struck out certain paragraphs of the statement of claim.

The scope of s 31A of the Federal Court Act

8                     Under s 31A of the Federal Court Act, the Court may give judgment against an applicant where it is satisfied that the applicant has no reasonable prospect of successfully prosecuting its proceeding.  It is a means by which, at any early stage of a proceeding, the Court may dispose of an unmeritorious case.  In considering an application made under s 31A the Court is in an analogous position to a judge in a jury trial considering, whether a jury, properly instructed, could render a verdict for a plaintiff.  If there is no real issue of law or fact to be determined then the matter should not go to trial.  The overall concern should be directed at substance, not form.  Under s 31A, unlike in the common law test for summary dismissal, a proceeding need not be hopeless or bound to fail for the section to be invoked.  The sole question for current purposes is whether the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting its proceeding.  In considering that issue the Court will generally take a cautious approach, given that a value judgment will be required to be made in the absence of a full trial: see generally, Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401.

9                     At [31] in Kowalski the Full Court observed that:

It remains a matter for a judge hearing a summary dismissal application to exercise some discretion as to whether questions of law that have been raised are so difficult that they ought not to be decided summarily.

10                  Further, there might be contested evidence in a proceeding which has an ambivalent character prior to a final determination such that it will not be appropriate to exercise the discretion to terminate the proceeding: see, Ugur v Human Rights and Equal Opportunity Commission [2008] FCA 1461 at [24] per Jagot J.

The scope of O 11 r 16

11                  As Flick J said in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) [2010] FCA 361 at [15]:

The power conferred by rules such as O 11 r 16 to strike out a pleading or part of a pleading…will only be exercised in a plain and obvious case: Davis v Commonwealth (1986) 61 ALJR 32 at 35 per Gibbs CJ. It is a power to be exercised with “exceptional caution”: Morton v Vouris (1996) 21 ACSR 497 at 513 per Sackville J.

12                  Further as Finkelstein J said in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 at [4]:

The fundamental thing to understand about the strike-out rule, which the language of O 11 r 16 itself makes clear, is that the rule is concerned only with the adequacy of the pleading (or to be more precise, the allegations and the causes of action asserted therein) as a matter of law.

13                  So much is to be contrasted with s 31A where matters outside the pleadings can be considered to arrive at a value judgment based on substance, not form: see, White Industries v Federal Commissioner of Taxation (2007) 160 FCR 298 at [50], per Lindgren J.

The JAILI case

14                  JAILI claims to be an association incorporated under the Associations Incorporation Act 1964(Tas).  Its objectives are said to include (referenced at paragraph 8 of the statement of claim):

…increasing community awareness of current family violence laws within Tasmania and to lobby to [have] current family violence laws amended and/or repealed.

15                  JAILI further claims to have as members persons “who have been subjected to the provisions of [the State Act] as persons suspected of family violence”, according to paragraph 8(a) (ii) of the statement of claim.

16                  An affidavit filed in the proceeding on behalf of JAILI and sworn by a solicitor of the firm which acts in the proceeding for JAILI, refers to a concern that the State Act allows police, rather than Judges, to impose orders that may last 12 months and which place an onus on the person against whom the order is made to apply for variations or revocation.

17                  In another affidavit filed on behalf of JAILI, Mr Raymond Escobar, therein described as a representative of members of JAILI, describes the JAILI membership as:

Consist(ing) of both men and women who I believe to be dedicated in the taking of legal action against what we believe is an unlawful and draconian Act of Parliament, being the [State Act] …

18                  At paragraph 4 of that affidavit, Mr Escobar states:

The [State Act] has impacted in a most serious way on persons under its jurisdiction by destroying families and removal [of] an individual’s right to a trial by jury. Persons who have received a Family Violence Order or a Police Family Violence Order are now automatically deemed guilty until proven innocent. It is the position of [JAILI] that this is a pro-arrest policy which means that innocent men and women are currently unnecessarily subjected to Court proceedings and imprisoned. Many members of [JAILI] have lost their houses, lost their employment, lost their good reputation, had access to their children unfairly denied to them without reasonable opportunity for reconciliation.

Exhibited to the affidavit is a submission by JAILI to a review of the State Act and a compilation of documents from persons allegedly affected by the State Act.

The Kable point

19                  JAILI’s application for a declaration of invalidity in respect of the State Act is founded, in part, on a claim, amplified in paragraph 4 of the statement of claim, that the State Act’s conferral of jurisdiction on the State Court is inconsistent with that Court’s exercise of Commonwealth judicial power under s 77 (iii) of the Constitution.  The reason asserted is that the State Act removes or constrains the judicial discretion of the State Court and/or undermines public confidence in its ability to properly exercise its judicial functions and/or discretion.

20                  JAILI refers to several sections of the State Act which it contends affect the power of the State Court to review orders made under the State Act.

21                  The State of Tasmania submits that the relevant principle of law is that a State Parliament cannot confer on a State court a function which so substantially impairs its institutional integrity so as to be incompatible with the exercise by it of a Commonwealth judicial power.  The State of Tasmania refers to the succinct statement of the principle established in Kable v Director of Public Prosecutions (NSW)(1995) 189 CLR 5, as explained by Gleeson CJ in Fardon v Attorney-General for the State of Queensland (2005) 223 CLR 575 at [15]. There his Honour said:

The decision in Kable established the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.

22                  The State of Tasmania contends that the provisions of the State Act do not relevantly impair the integrity of the State Court.  It says the Kable principle does not arise for consideration and that JAILI is confusing conferral of a function on a State court with the manner of its exercise.

23                  JAILI refers to several sections of the State Act to seek to make good its Kable point.  It refers to ss 10, 11, 12, 14, 16, 23, 27 and 28 of the State Act.

24                  Sections 10, 11 and 12 of the State Act are found in Part 2 of the Act which is headed “family violence offences”.  Section 10 deals with the power of a police officer to enter premises, without warrant, to prevent family violence and carry out searches and seize property.  Section 11 deals with the arrest powers of a police officer in respect of a person reasonably suspected of committing family violence.  Section 12, which is the focus of paragraph 4(d) of the statement of claim and is headed “Bail”.  Section 12(1) provides:

A person charged with a family violence offence is not to be granted bail unless a judge, court or police officer is satisfied that release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child.

Section 12(2) sets out a range of non-exhaustive matters to be taken into account by the person considering the grant of bail.  Importantly s 12(2)(e) refers to: “any other matter the judge, court or police officer considers relevant”.

25                  There is nothing in the text of ss 10, 11 or 12 which impairs the institutional integrity of a State Court.  The legislature refers at s 5 to a “Court” for the purpose of the State Act, meaning a court of summary jurisdiction under the Justice Act 1959 (Tas).  However, the State takes no issue about the Kable principle applying generally to State courts.

26                  For the foregoing reasons, the use of the Kable principle to seek to impugn s 12 and other relevant provisions in Pt 2 of the State Act is fundamentally misconceived.

27                  JAILI next relies on s 14 of the State Act.  That section permits certain categories of police officers to make police family violence orders, if an officer is satisfied that a person has committed or is likely to commit a family violence offence.

28                  JAILI, at paragraph 4(b) of its statement of claim refers to Police Family Violence Orders being made at the discretion of a police officer without any requirement for an order of a court.  However, nothing in s 14 confers any function on a State court which substantially impairs its institutional integrity.  Under s 14(9) a court “may vary, extend or revoke a Police Family Violence Order upon the application of a police officer, an affected person, the person to whom it is issued, or any other person to whom leave is granted”.  No issue of impairment of institutional integrity arises from the conferral on a State court of that function.

29                  Part 4 of the State Act is headed “Family Violence Orders” (“FVO”).  Section 15 (1) provides that an application for a FVO is to be made to a court.  Section 16 deals with the circumstances in which a court may make an FVO.  Paragraph 4(e) of the statement of claim alleges that:

Section 16 of the [State Act] permits a Court to admit a Statutory Declaration of a Police Officer as evidence in an application for a FVO, without the police officer being present for cross-examination and the Supreme Court is not prevented upon review from confirming an FVO regardless of such evidence having been admitted and even relied upon as grounds for the making of an FVO.

Paragraph 4(e) of the statement of claim does not reflect the text of any part of s 16 of the State Act and is not founded on the text of the provision as asserted by JAILI.  If the pleading had intended to refer to s 31 (4) of the State Act there is still no Kable point.  That provision does not substantially impair the institutional integrity of a State court by permitting a statutory declaration to be admissible in evidence.

30                  Section 26 of the State Act, provides for applications to be made for the registration of what are called “external family violence orders”.  Section 27 deals with the registration of such applications by “the Chief Clerk of Petty Sessions” and the possible referral of an external family violence order to a court “for adoption and modification”.  Under s 28 an external family violence order, which has been registered, has the same effect as a FVO and may be enforced as would an FVO.  JAILI, at paragraph 4 (c) of their statement of claim, complain that external family violence orders may be issued without the involvement of a Judge or Magistrate.  Again, this is not an example of an infringement of the Kable principle.  Sections 27 and 28 of the State Act do not confer functions on a State Court which substantially impair its institutional integrity.  They deal with administrative functions conferred on the Chief Clerk of Petty Sessions.

31                  JAILI at paragraph 4 (a) of the statement of claim submits that s 23 of the State Act permits an interim family violence order to stay in force indefinitely.  That proposition is incorrect.  Section 23 (3) of the State Act provides;

An interim FVO may be varied or extended at any time until the relevant application under s 15 has been determined.

In other words, the interim position can be altered before a final hearing.  A party subject to an interim order may also seek to have the application for a final order bought on for hearing, determined and rejected.  There is nothing in s 23 which attracts the Kable principle.

32                  None of the impugned provisions of the State Act are examples of the conferral of a function on the State Court or any Tasmanian court which substantially impair the institutional integrity of such court.  That part of JAILI’s application which alleges that the State Act is invalid by virtue of conferral of jurisdiction on a State court is inconsistent with that court’s exercise of judicial power is devoid of merit.  I am satisfied that it has no prospect of being successfully prosecuted at a full trial.

Conferral of non-judicial functions

33                  JAILI’s application also contends that the State Act invalidly confers non-judicial power “on any Commonwealth Court exercising jurisdiction under the Family Law Act 1975…”.

34                  At paragraph 5 of the statement of claim this aspect of the application is expanded upon.  JAILI points to the State Act as a prescribed law of a State to protect a person from family violence as defined by s 4 of the Family Law Act 1975 (Cth).  Consequently it is contended that the State Act requires the Family Court to have regard to orders made under the State Act.  This is said to equate to an invalid conferral of non-judicial power on a Commonwealth Court by virtue of the matters raised in paragraph 4 of the applicant’s statement of claim.  JAILI says these matters “involve the pre-determination of the issue of the existence of family violence, or aspects of that issue, by non-judicial bodies”.

35                  The State of Tasmania responds with the proposition that the Commonwealth Parliament is prevented from conferring non-judicial functions on Courts.  It relies on Wilson v Minister for Aboriginal Affairs (1996) 189 CLR 1 where the High Court referred to the separation of judicial functions from the political functions of government.  Counsel for the State submits, correctly, that there is no like prohibition on a State Parliament.  Further counsel is also correct to point out that a reference to a State Act in a Commonwealth Act does not and cannot make the State Act invalid.  Assuming that the reference to the State Act in the Family Law Act has any constitutional effect, that effect will be on the powers of the Family Court and will not affect the operation of the State Act.  This aspect of the applicant’s application based on paragraph 5 of the statement of claim is fundamentally misconceived.  I am satisfied that it has no prospect of being successfully prosecuted.

Inconsistency

36                  A state law is inconsistent with a law of the Commonwealth under s 109 of the Constitution when;

·        it alters, impairs or detracts from the operation of a Commonwealth law or the exercise of power under a Commonwealth law; or

·        it enters a field of law which the Commonwealth law was intended to cover exhaustively or exclusively.

See, Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 at [27-28], as applied in Jemena Asset Management Pty Ltd v Coinvest Limited (2009) 180 FCR 576 at [29].

37                  JAILI submits that the State Act is inconsistent with the Family Law Act and is invalid to the extent of the inconsistency.  No particular provisions in the Family Law Act are relied on as being inconsistent with any particular provision in the State Act.  JAILI contends that the State Act impairs the operation of the Family Law Act by being effectively incorporated into it.  That contention is rejected.  Section 60 CC (3) (k) of the Family Law Act, permits the Family Law Court to consider, in determining what is in the best interests of a child, any FVO that applies to a child.  Such an order includes a FVO made under a State Act.  In s 4 of the Family Law Act, “family violence order”, is defined to mean “an order (including an interim order), made under a prescribed law of a State or Territory to protect a person from family violence”.  The State Act is such a prescribed law as a consequence of Reg 12 BB of the Family Law Regulations 1984 (Cth) and Sch 8 thereto.

38                  The power of the Family Law Court to take into account an order made under the State Act does not reveal any alteration, impairment or detraction from the Family Law Act as a consequence of the operation of the State Act.  On the contrary, the Commonwealth Act draws on the State Act to enhance the effectiveness of the Commonwealth provisions by enabling the Family Court to take into account orders made under the State Act, which affect children and concern family violence when considering what is in the best interests of a child.

39                  Further, the State Act has not entered a field which the Family Law Act intended to cover exhaustively or exclusively.  The Family Law Act, on the contrary, relies on the State Act to inform its consideration of what is in the best interests of a child.

40                  There is no reasonable basis on which it may be contended that any relevant inconsistency arises between the State Act and the Family Law Act.  This aspect of JAILI’s application is fundamentally misconceived.  I am satisfied that it has no prospect of being successfully prosecuted.

Human Rights – Sex Discrimination

41                  JAILI seeks an order that the State of Tasmania cease to engage in practices outlined in paragraph 7 of its statement of claim.  Paragraph 7 alleges that the State of Tasmania has breached s 22 of the Sex Discrimination Act 1984 (Cth) (“the Sex Discrimination Act”) by providing policing services which promote a pro-arrest policy and involve an assessment of risk more likely to affect men rather than women, being practices in breach of Australia’s international obligations.  JAILI seeks $200,000,000 in damages under s46 PO (4) (d) of the Australian Human Rights Commission Act 1986 (Cth) (“the Australian Human Rights Commission Act”).

42                  This aspect of the application is not properly before this Court.  Pursuant to s 46 PO (1) of the Australian Human Rights Commission Act, the Australian Human Rights Commission must first receive and deal with a complaint made to it under the Sex Discrimination Act. When that complaint is terminated, the complainant may then bring a proceeding in this Court and not before.  As this process has not been followed, the Court has no jurisdiction to deal with this aspect of the application.  Consequently, I am satisfied that it has no prospect of being successfully prosecuted in its current form, without the application having first gone through the proper procedure.

Unlawful assault and other claims

43                  In its application JAILI claims $200,000 damages for “unlawful assault, trespass, negligence, conspiracy to cause economic loss, intimidation and defamation”.  At paragraph 8 of the statement of claim it is alleged that the applicant has amongst its membership persons who have been the subject of unlawful assaults, trespass to their property, negligent infliction of loss and other suffering, as a result of being suspected of engaging in family violence.  JAILI, itself, does not claim to have suffered and cannot have suffered such hardship as alleged.  It is the applicant in the proceeding.  It has not engaged the representative proceeding provisions of Pt IV A of the Federal Court Act.  JAILI’s claim, to have suffered loss cannot be sustained.  I am satisfied that this claim, as with all the claims made in the application, has no reasonable prospect of being successfully prosecuted as a matter of substance.

Relief under s 31A and alternative claim for relief under O 11 r 16

44                  Having regard to my state of satisfaction that there is no reasonable prospect of JAILI successfully prosecuting its application, or any part of it, it is appropriate to grant the State of Tasmania the relief it seeks under paragraph 1 of its motion, dated 30 April 2010.  It is not necessary, in the circumstances, to deal with the State of Tasmania’s alternative claims for relief under O 11 r 16 of the rules of this Court.

Order

45                  The Court will order as follows:

1.                  Pursuant to s 31A (2)(b) of the Federal Court of Australia Act 1976 (Cth) judgment is given for the respondent against the applicant.

2.                  The applicant pay the costs of the respondent to be taxed in default of agreement.

Associate:

Dated:         8 June 2010