Australian Municipal, Administrative, Clerical and Services Union v Shire Of Mundaring and Anor (No.2)
[2011] FMCA 751
•3 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION v SHIRE OF MUNDARING & ANOR (NO.2) | [2011] FMCA 751 |
| CONSTITUTIONAL LAW – Implied guarantee of freedom of political communication – local government election – whether matter arising under the Constitution. |
| INDUSTRIAL LAW – General protections – threat of adverse action – members of industrial association distributing flyer and commenting or canvassing generally concerning local government election. |
| LOCAL GOVERNMENT – Election – distribution of flyer by members of industrial association – commenting or canvassing generally by members of industrial association – whether conduct lawful or unlawful. |
| PRACTICE AND PROCEDURE – Whether matter arising under the Constitution – whether proceedings to be adjourned pending issuance of Judiciary Act notices. |
| Constitution Fair Work Act 2009 (Cth), ss.342 – Item 1, 346, 347 Judiciary Act 1903 (Cth), s.78B Local Government Act 1995 (WA), ss.4.87, 4.88, 4.94, 4.95, 5.103 |
| Amrit Lal Narain v Parnell (1986) 9 FCR 479 The Corporation of the City of Adelaide v Corneloup & Ors [2011] SASCFC 84 |
| RG Menzies, The Measure of the Years (London: Coronet, 1972) The Shorter Oxford Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) |
| Applicant: | AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION |
| First Respondent: | SHIRE OF MUNDARING |
| Second Respondent: | JONATHAN THROSSELL |
| File Number: | PEG 264 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 28 September 2011 |
| Date of Last Submission: | 28 September 2011 |
| Delivered at: | Perth |
| Delivered on: | 3 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Schapper |
| Solicitors for the Applicant: | Derek Schapper |
| Counsel for the Respondents: | Mr N Douglas |
| Solicitors for the Respondents: | McLeods |
ORDERS
The matter be adjourned for a period of not less than 28 days to allow the Applicant to serve on each of the Attorneys-General of the Commonwealth and the States a notice under s.78B(1) of the Judiciary Act 1903 (Cth).
The interim injunction granted on 23 September 2011 be continued until the hearing of the application, or further order of the Court.
The matter be listed for a further directions hearing at 12.00pm on 4 November 2011.
There be liberty to apply urgently.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 264 of 2011
| AUSTRALIAN MUNICIAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION |
Applicant
And
| SHIRE OF MUNDARING |
First Respondent
| JONATHAN THROSSELL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 23 September 2011 the Court granted an interim injunction restraining the Shire of Mundaring[1] and its Chief Executive Officer, Mr Throssell,[2] from threatening to take, or taking, any adverse action against any employee of the Shire who electioneers in respect of elections currently under way for positions of councillors of the Shire.[3]
[1] “Shire”.
[2] “CEO”.
[3] Australian Municipal, Administrative, Clerical and Services Union v Shire of Mundaring & Anor [2011] FMCA 731 (“Shire of Mundaring (No 1)”).
Because of the forthcoming local government elections, to be held on 15 October 2011, the Court made arrangements for the final hearing of this matter to be listed on 28 and 29 September 2011.
When the applicant union[4] filed its submissions on 26 September 2011 it specifically raised a constitutional issue: namely, that the conduct of members of the AMACSU in relation to the forthcoming local government elections, which was protected by the interim injunction, was also protected by the implied constitutional guarantee of freedom of political communication arising under the Constitution, which rendered invalid certain provisions of:
a)the Local Government Act 1995 (WA);[5] and
b)the Shire of Mundaring Municipal Employees Workplace Agreement 2008,[6]
or action taken in reliance on those provisions, by the Shire.
[4] “AMACSU”.
[5] “LG Act”.
[6] “Municipal Employees Agreement”.
The AMACSU therefore submitted that there was a matter arising under the Constitution, and that the Court ought not proceed to determine the matter until notices under s.78B(1) of the Judiciary Act 1903 (Cth)[7] had been served on the Attorneys-General of the Commonwealth and of the States.
[7] “Judiciary Act”.
Issues
The following issues arise:
a)whether there is a matter arising under the Constitution raised;
b)if there is a matter arising under the Constitution, whether the proceedings ought to be adjourned under s.78B(2)(a) of the Judiciary Act to allow the issuance of notices under s.78B(1) of the Judiciary Act;[8]
c)whether there are issues on which the Court may continue to hear evidence and argument by reason of s.78B(2)(c) of the Judiciary Act because they are matters severable from any matter arising under the Constitution and, if so, whether they ought to be heard separately; and
d)whether the existing interim injunction ought to be continued, and if so, whether on the same or varied terms.
Judiciary Act provisions
[8] “Section 78B Notices”.
Section 78B of the Judiciary Act, which is central to the first three of the issues set out in the preceding paragraph, provides that:
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3) For the purposes of subsection (1), a notice in respect of a cause:
(a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and
(b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause.
(4) The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.
(5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
Whether a matter arising under the Constitution
Background
The broad background to this matter is that there have been as yet unsuccessful negotiations with respect to a new enterprise agreement between the Shire and the AMACSU. Consequently the AMACSU drew up a flyer which it distributed to the Shire’s depot employees, and which it has asked the depot employees to put into letterboxes of houses within the Shire.[9] It is unnecessary for present purposes to set out the full terms of the Flyer.[10] It suffices to note that the Flyer:
[9] “Flyer”.
[10] The full terms are set out at para.13(f) of Shire of Mundaring (No 1).
a)makes assertions concerning the negotiations for a new enterprise agreement;
b)makes assertions concerning the gross earnings of depot employees and their overtime working requirements as part of their contract of employment;
c)makes assertions concerning the withdrawal of overtime by the Shire;
d)makes assertions concerning a lack of pay parity with depot employees in neighbouring shires;
e)makes assertions concerning the benefits package of the Shire CEO;
f)asserts that the CEO seeks to reduce the entitlements of depot employees particularly with respect to overtime;
g)asserts that the Shire delayed negotiations, and took its own form of industrial action by preventing employees from working, withholding wages and locking them out of their workplace;
h)requests support for the Shire depot employees by requesting voters to purchase photographs, the proceeds of which are to go to an “extreme hardship fund” set up for the depot employees at the Shire;
i)requests that contact be made with a local councillor and that the councillor be told what kind of employer the Shire should be; and
j)requests that the reader votes in the upcoming local government elections and votes for a candidate who has a genuine interest in how the Shire treats its employees, and nominates particular candidates for whom the Shire’s depot employees “have resolved to recommend widespread support”.
It was conceded at the hearing of the interim injunction application on 22 September 2011 that the Flyer was unlawful because it did not contain the name of the printer, contrary to the provisions of s.4.87 of the LG Act. However, it is not seriously in dispute that the Flyer was to be, and has been, amended to remedy that particular unlawfulness.
The CEO subsequently met with some of the Shire depot employees, and more pertinently, on 16 September 2011 sent to all the Shire’s employees an email in the following terms:
Some of you may have received an email or a flyer from the ASU seeking your assistance in disseminating or delivering via letterbox drop a flyer entitled “Shire of Mundaring Depot Workers Ask for Your Support”. The flyer, prepared by the ASU, once again contains many inaccurate, untruthful and offensive statements. It states that Shire depot employees recommend support for three particular candidates in the upcoming elections.
I advised all of the depot employees today, just prior to their knock off time, that I would consider it a breach of the code of conduct and thus their employment contract if they undertook the action proposed by the ASU to distribute the attached flyers and advocate support for any candidates in the upcoming elections. I stressed that their own vote was their business, but they could not represent or purport to represent themselves as a Shire employee in disseminating this information to others.
I now issue this same directive to all other Shire employees. I consider it to be a breach of the code of conduct to participate in such action as a Shire employee. Shire employees must not comment on what are clearly political issues. They also owe an obligation of fidelity to their employer, which I consider would be breached by disseminating the information contained in the flyer. Should you choose to breach the code of conduct, I will be required to take appropriate action.
I realize that many of you will not have seen this ASU newsletter and many who have seen it will properly ignore it. I am taking this action to ensure all employees are aware of their obligations and mean no offence to those who would not consider such action.
However, I advise those who may be considering supporting this action to carefully reconsider.[11]
[11] Affidavit of Paul Burlinson, sworn 20 September 2011, para.24 and Annexure PB3 (“Mr Burlinson’s First Affidavit”), being an email sent from the Chief Executive Officer at 4.41pm on 16 September 2011 (“CEO’s Email”).
The CEO’s Email indicated in the subject line that it was a “directive to employees regarding advice from ASU to canvass support for candidates”.[12]
[12] Mr Burlinson’s First Affidavit, Annexure PB3.
Contentions
The AMACSU now asserts that Mr Throssell, acting in his capacity as CEO, and by means of the CEO’s Email, threatened to take unspecified adverse action within the meaning of s.342(1) – Item 1 of the Fair Work Act 2009 (Cth)[13] for the reason that, or for reasons which included the reason that, the employees, or some of them, were engaged in, or were proposing to engage in, industrial activity within the meaning of s.347(b)(ii), (iii) or (v) of the FW Act, that industrial activity being:
a)the distribution of the Flyer; alternatively
b)commenting or canvassing on political matters in connection with the local government elections for the Shire.
[13] “FW Act”.
The AMACSU asserts that distribution of the Flyer, and commenting or canvassing generally by the Shire’s depot employees in connection with the election are lawful activities within the meaning of s.347(b)(ii) and (iii) of the FW Act, and are also covered by s.347(b)(v) of the FW Act. The AMACSU asserts that the threats it alleges are threats in contravention of s.346 of the FW Act.
The Shire asserted that the distribution of the Flyer, and commenting or canvassing in connection with the election by the Shire depot employees may be in breach of:
a)the Code of Conduct applicable to the Shire depot employees; and
b)the Shire depot employees’ contract of employment.
The Shire also asserted that it was arguable that provisions of:
a)section 4.88(1) and (4) of the LG Act which make it an offence to print, publish or distribute misleading or deceptive material during the election period; and
b)section 4.94(c) of the LG Act, which makes it an offence for a Shire employee, who is not a candidate, to canvass in the election,
might make it unlawful for the Shire depot employees to distribute the Flyer, and comment or canvass in the election.
The AMACSU argues that to the extent that the alleged threats set out above may be or were for the reasons of securing compliance by Shire employees with:
(a)the Shire’s Code of Conduct; or
(b)the contract of employment between the Shire’s depot employees and the Shire, or
(c)the Municipal Employees Agreement;[14] or
(d)sections 4.87, 4.88 or 4.94(c) of the LG Act,
each of the provisions is invalid by reason of to the implied guarantee of freedom of political communication under the Constitution.[15] The AMACSU says that the High Court in Lange enunciated an implied constitutional guarantee of freedom of political communication between the people concerning political or government matters.
Relevant provisions
[14] “Municipal Employees Agreement”.
[15] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 (“Lange”).
FW Act
Section 342 of the FW Act provides that a person takes adverse action against another person where, in the case of an employer against an employee, the employer:
a)dismisses the employee;
b)injures the employee in their employment;
c)alters the position of the employee to the employee’s prejudice; or
d)discriminates between the employee and other employees of the employer.[16]
Adverse action includes threatening to take the above action.[17]
[16] FW Act, s.342(1) – Item 1.
[17] FW Act, s.342(2).
Section 346 of the FW Act provides that a person must not take adverse action against another person because the other person “engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of” s.347(b) of the FW Act. Relevantly, s.347(b) of the FW Act provides that a person “engages in industrial activity”:
… if the person:
(b) does, or does not:
…
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
…; or
(v) represent or advance the views, claims or interests of an industrial association;
…
In Shire of Mundaring (No 1) the Court found that there was a serious question to be tried as to whether the CEO’s Email constituted adverse action under s.342(2)(a) of the FW Act.[18]
[18] Shire of Mundaring (No 1) at para.34 per Lucev FM.
The Shire Code of Conduct
The “Shire of Mundaring – Code of Conduct”[19] contains the following provisions, which are relied upon by the Shire:
[19] “Code of Conduct”. The Code of Conduct is a document to be prepared or adopted by the Shire under s.5.103 of the Local Government Act 1995 (WA) (“LG Act”).
INTRODUCTION
This Code of Conduct (Code) provides Members, Committee Members and employees with consistent guidelines for acceptable standards of conduct.
…
4.4 Use of Information
…
(2) Employees must not make improper use of any information acquired in the performance of their duties as employees of the Shire:
…
(b) to cause detriment to the Shire or any other person.
…
4.8 Personal Behavior
Employees must:
…
(d) make no allegations which are derogatory of the Shire or any person or which are otherwise improper and refrain from any form of conduct, in the performance of their official or professional duties, which may cause any reasonable person unwarranted offence or embarrassment;
(e) always act in accordance with their obligation of fidelity to the Shire; and
(f) represent and promote the interests and decisions of the whole of the Shire at all times.
4.9 Honesty and Integrity
Employees must:
(a) observe the highest standards of honesty, integrity and propriety and avoid conduct, which might suggest any departure from these standards, noting that in this code,
“honesty” includes acting with sincerity and not lying or knowingly misleading, cheating or stealing.
“integrity” refers not only to knowing what is the right thing to do but having the moral strength and courage to act on one’s convictions and on principle rather than expediency; and
“propriety” is to behave correctly as befits the duties of one’s professional responsibilities and role;
(b) promptly bring to the notice of the CEO any apparent dishonesty on the part of any Member or other employee;
(c) be frank, honest and fair in their official dealings with each other in the performance of their duties as employees; and
(d) be objective in undertaking their professional duties and functions.
(Objectivity involves a state of mind which imposes on an individual the obligation to be fair and impartial, intellectually honest and free of conflicts of interest and bias).
4.14 Corporate Obligation
…
(2) Communications and Public Relations
All aspects of communication by employees (including oral, written or personal), involving the Shire’s activities should reflect the status and objectives of the Shire. Communications should be accurate, polite and professional.
Employees should not comment on what are clearly political issues as that is the prerogative of the President or the CEO.
Contract of employment
There is as yet no specific evidence of the terms of the contract of employment between any Shire employee and the Shire.
Municipal Employees Agreement
The Municipal Employees Agreement relevantly provides that:
19. Organizational polices and procedures
The Shire of Mundaring shall ensure that all relevant policies and procedures are communicated in writing to employees. The employees shall familiarise themselves with and abide by all of Shire of Mundaring’s rules, regulations and policies as may be current from time to time.[20]
and
3.5 If any provision of this agreement is declared or determined to be illegal or invalid by final determination of any court or tribunal of competent jurisdiction, the validity of the remaining parts, terms or provisions of this agreement shall not be affected, and the illegal or invalid part, term or provision shall be deemed not to be part of this agreement.[21]
[20] Municipal Employees Agreement, cl.19.
[21] Municipal Employees Agreement, cl.3.5.
LG Act
The LG Act provides:
a)in s.4.87 as follows:
(1) A person who prints, publishes or distributes electoral material or causes electoral material to be printed, published or distributed, commits an offence unless —
(a) …; and
(b) in the case of electoral material that is printed otherwise than in a newspaper, the name and business address of the printer appears at the end of the electoral material.
Penalty: $2 000.
(2) ….
(3) In this section —
electoral material means any advertisement, handbill, pamphlet, notice, letter or article that is intended or calculated to affect the result of an election but does not include an advertisement in a newspaper announcing the holding of a meeting;
print includes photocopy or reproduce by any means;
b)in s.4.88(1) and (4) as follows:
(1) A person who, during the relevant period in relation to an election —
(a) prints, publishes or distributes deceptive material or causes deceptive material to be printed, published or distributed; or
(b) ….,
commits an offence.
Penalty: $5 000 or imprisonment for one year.
…
(4) In this section —
deceptive material means any matter or thing that is likely to mislead or deceive an elector in relation to the casting of the elector’s vote at the election;
print includes photocopy or reproduce by any means;
publish includes publish by radio or television;
relevant period means the period commencing when notice calling for nominations for the election is published and ending at 6 p.m. on election day;
a)in s.4.94(c) as follows:
A person who —
…
(c) not being a candidate in an election, canvasses at the election while he or she is an employee of the local government in question;
…
commits an offence.
Penalty: $2 000; and
b)in s.5.103 as follows:
(1) Every local government is to prepare or adopt a code of conduct to be observed by council members, committee members and employees.
[(2) deleted]
(3) Regulations may prescribe codes of conduct or the content of, and matters in relation to, codes of conduct and any code of conduct or provision of a code of conduct applying to a local government under subsection (1) is of effect only to the extent to which it is not inconsistent with regulations.
Does a matter arise under the Constitution?
The AMACSU contends that the implied constitutional guarantee of freedom of political communication extends to local government, and applies with respect to the issues raised above such that they involve a matter arising under the Constitution within the meaning of s.78B of the Judiciary Act. The Shire does not in fact dispute that that contention is arguable.[22]
[22] Transcript, 28 September 2011, page 15.
The agreement of the parties is not however determinative of whether there is a matter arising under the Constitution within the meaning of s.78B of the Judiciary Act, because that is a matter for the Court to determine. In the same way that parties cannot bind the Court by deciding that there is not a matter arising under the Constitution, or deciding not to raise such a matter,[23] the mere agreement of the parties cannot determine that there is a matter arising under the Constitution for the Court to determine.[24] It is a matter for the Court to determine based upon the cause or matter before the Court.[25]
[23] Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors (1999) 95 FCR 292 at 300 per French J; [1999] FCA 1151 at para.23 per French J (“Berbatis”).
[24] Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 per Toohey J; Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489 per Burchett J.
[25] Berbatis FCR at 298-299 per French J; FCA at paras.16, 19 and 20 per French J (and cases there cited).
In order to satisfy itself that there is a matter arising under the Constitution within the meaning of s.78 of the Judiciary Act for these purposes it is first necessary for the Court to set out the nature of the implied constitutional guarantee of freedom of political communication, and see how that guarantee has been applied by other courts.
There is no doubt that there is in the Constitution an implied constitutional guarantee of freedom of political communication.[26] Laws which burden political communication are only valid if they satisfy a two-pronged test:
a)does the challenged law effectively burden freedom of political communication in its terms, operation or effect;[27] and
b)is the challenged law reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with representative and responsible government.[28]
[26] Lange at 559 (generally) and 572 (local government) per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
[27] Lange at 567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
[28] Lange at 562 and 567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; Coleman v Power (2004) 220 CLR 1 at 50 per McHugh J (with whom Gleeson CJ, Gummow, Hayne and Kirby JJ agreed); [2004] HCA 39 at para.93 per McHugh J (with whom Gleeson CJ, Gummow, Hayne and Kirby JJ agreed).
The implied constitutional guarantee of freedom of political communication is negative in nature: it creates an area immune from control, especially legislative control, by invalidating laws which do not meet the two-pronged test set out above.[29] The implied freedom of political communication extends to local government.[30]
[29] Lange 560 and 561-562 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
[30] Lange at 571-572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; Greene v Gold Coast City Council [2008] QSC 25 (“Gold Coast City Council”); Becker & Anor v City of Onkaparinga & Anor (2010) 244 FLR 46; [2010] SASCFC 41; The Corporation of the City of Adelaide v Corneloup & Ors [2011] SASCFC 84 (“City of Adelaide”).
In Gold Coast City Council the Supreme Court of Queensland restrained the Gold Coast City Council from limiting or regulating, or purporting to limit or regulate, the display of election signs throughout the city of the Gold Coast in reliance on s.11 of the Gold Coast City Council Local Law Policy No 7 (Control of Advertising Devices). The Gold Coast City Council had issued infringement notices against a candidate who had displayed campaign signs on roads and in public areas in contravention of Local Law 7 which did not permit election signs on roads for safety reasons. Local Law 7 in fact prohibited election signs throughout the City, except on certain conditions as to size, number and placement. The Queensland Supreme Court considered that the relevant section of Local Law Policy No 7 imposed a complete prohibition which burdened free political communication in a manner disproportionate to the attainment of the competing public interest, said to be issues of public road safety.[31] The Queensland Supreme Court said that the relevant law could not be classified as permissive because it imposed a blanket prohibition on election signs throughout the Gold Coast City Council, with a limited number of exceptions, and that the law would make it unlawful for persons in the City of the Gold Coast to display election signs in their front yards or in street front shop windows.[32] The local relevant law was said to constitute “an unlawful restriction on the communication between electors and candidates for election.”[33] In considering the balance of convenience the Queensland Supreme Court went on to observe in Gold Coast City Council that the imminence of the elections to which the signs related, and the absence of any evidence or assertion of prejudice on the part of the Gold Coast City Council, made it clear that the balance of convenience favoured the grant of an interlocutory injunction.[34]
[31] Gold Coast City Council at para.16 per Daubney J.
[32] Gold Coast City Council at paras.23 and 24 per Daubney J.
[33] Gold Coast City Council at para.27 per Daubney J.
[34] Gold Coast City Council at para.30 per Daubney J.
In the City of Adelaide the Full Court of the Supreme Court of South Australia was dealing with two bylaws in the following terms:
2. ACTIVITIES REQUIRING PERMISSION
No person shall without permission on any road:-
…
2.3 Preaching and Canvassing
preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to a designated area as resolved by the Council known as a “Speakers Corner” and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal, State or Local Government Election or during the course and for the purpose of a Referendum;
2.8 Distribute
give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter, provided that this restriction shall not apply to any handbill or leaflet given out or distributed by or with the authority of a candidate during the course of a Federal, State or Local Government Election or to a handbill or leaflet given out or distributed during the course and for the purpose of a Referendum;[35]
[35] Cited in City of Adelaide at para.5 per Kourakis J.
Having dealt with and confirmed the existence of the implied constitutional guarantee of freedom of political communication[36] the Full Court went on to observe as follows:
157. Turning first to the regulation of preaching by the impugned by-law, it can be accepted that its object, the convenience, comfort and safety of the residents of the city using its roads, is a purpose which is compatible with democratic and responsible government. However, in my view, the liberty to preach to fellow citizens in public places on political matters, as and when they arise, without seeking permission from an arm of government is fundamental to the maintenance of the constitutional system of responsible and democratic government. Preaching and canvassing as styles of address are accepted, indeed often used, and apt, forms of political communication. Leaflet distribution is an equally fundamental form of political communication. The historical recognition of the importance of freedom of speech between the members of urban societies, both for the progress of the metropolis and the advancement of democracy, can be traced from classical Greece through to 18th century England. Its acceptance in modern times is attested to by a plethora of international treaties and constitutional declarations of fundamental liberties. It is the acceptance of that political philosophy which underpins the constitutional adoption of a democratic system of government for the Commonwealth of Australia.
158. The delay inherent in the requirement to obtain permission would in itself necessarily stifle political debate on contemporary issues. The need to preach on the age-old epistemological questions over which religious dogmas may differ is seldom, if ever, attended by the same urgency as political debate. Moreover, even if one were to assume that, notwithstanding the wide terms in which the discretion to give permission is expressed by the by-law, the officers of the City with authority to grant or deny permission honestly and diligently respected the constraints of the constitutional freedom on them, there remains a substantial likelihood that it will, from time to time, be infringed. Requiring applicants, who have wrongly been denied permission, to take proceedings for judicial review would strangle political speech almost as effectively as an absolute prohibition.
159. In my view, compatibility with the Australian system of responsible government requires that the legal and administrative burdens of any regulation of political speech fall on government and not the citizens who wish to engage in the political process. Members of a democratic society do not need advance permission to speak on political matters. The prohibition of disseminating a political message, unless permission of an arm of government is first obtained, is antithetical to the democratic principle.
160. I have reached the same conclusion with respect to haranguing. … the freedom to put political views critically and aggressively remains a necessary part of contemporary Australian politics under our constitutional form of government. “Aggressive” here does not mean, of course, “physically threatening”. It means forceful, strongly-expressed and polemical political communication; it falls short of behaviour which would incite a breach of the peace.[37]
[36] City of Adelaide at paras.153-156 per Kourakis J (with whom Doyle CJ at para.1 and White J at para.2 agreed).
[37] City of Adelaide at paras.157-160 per Kourakis J (with whom Doyle CJ at para.1 and White J at para.2 agreed) (footnotes omitted).
Section 4.94(c) of the LG Act imposes a complete prohibition on a Shire depot employee, who is not a candidate in the election, canvassing in the election. Likewise, the Code of Conduct, which relies upon s.5.103 of the LG Act and clause 19 of the Municipal Employees Agreement for its legal status and effect,[38] also seeks to preclude Shire depot employees from commenting on “political issues”. Canvassing, in the relevant sense, is to solicit, as support, votes for a particular candidate.[39] That is, ultimately to persuade the putative voter to a particular side, party or point or view. It is a function which lies at the core of Australia’s democratic tradition.[40]
[38] In the absence of any evidence as to the provisions of the Shire depot employees’ contracts of employment it is not possible to draw any conclusions concerning the effect of any Shire depot employee’s contract of employment.
[39] The Shorter Oxford Dictionary on Historical Principles (Oxford: Clarendon Press, 1973), page 279.
[40] City of Adelaide at para.159 per Kourakis J. Sir Robert Menzies once observed that “… the prime art of politics is that of persuasion which cuts deep into the popular mind and heart, which convinces and satisfies the human spirit”: see “A Retrospective Survey of the Science and Art of Politics” in RG Menzies, The Measure of the Years (London: Coronet, 1972), page 15.
It is therefore evident that there is an issue as to whether s.4.94(c) of the LG Act, and the effect of s.5.103 of the LG Act, the latter manifested through the Code of Conduct, might be invalid because of the implied constitutional guarantee of freedom of political communication, as, practically, complete prohibitions on political communication for Shire depot employees, many of whom are in fact ratepayers in the Shire.[41]
[41] Affidavit of Paul Burlinson, sworn 26 September 2011, para.10 (“Mr Burlinson’s Second Affidavit”).
That issue arises here because the Shire says that any distribution of the Flyer, or canvassing for particular candidates’ support of the AMACSU’s position in the enterprise agreement negotiations, or commentary upon the issue of the Shire’s conduct vis-a-vis the enterprise agreement negotiations, in the context of the election, is rendered unlawful by:
a)section 4.94(c) of the LG Act;
b)the Code of Conduct, adopted under s.5.103 of the LG Act;[42] and
c)possibly s.4.88(1)(a) of the LG Act, insofar as any material printed, published or distributed by Shire depot employees may be misleading or deceptive.
[42] Affidavit of Jonathan Paul Throssell, sworn 27 September 2011, para.43 (“Mr Throssell’s Affidavit”).
The Shire therefore says that the abovementioned conduct cannot be “lawful” for the purpose of engaging in industrial activity as defined in s.347(b)(ii) and (iii) of FW Act. If however ss.4.88(1)(a), 4.94(c) and 5.103 of the LG Act are invalid they cannot operate as a defence against the asserted adverse action by making the conduct of the Shire depot employees unlawful and therefore outside the scope of s.347(b)(ii) and (iii) of the FW Act. The same issue arises, slightly differently, in respect of s.347(b)(v) of the FW Act. If the Shire depot employees are, by distributing the Flyer, or commenting or canvassing on the enterprise agreement negotiations between the Shire and the AMACSU, representing or advancing the views, claims or interests of the AMACSU (and it is clearly arguable that they would be, or probably are, doing so), then adverse action could not be taken against them on the basis of the terms, operation or effect of ss.4.88(1)(a), 4.94(c) or 5.103 (through the Code of Conduct) of the LG Act on the basis that those provisions are lawful, if in fact they are invalid because of the implied constitutional guarantee of freedom of political communication.
Having regard to the above matters, the Court therefore considers that, by reason of the implied constitutional guarantee of freedom of political communications, issues arise in these proceedings concerning the validity of ss.4.88(1)(a), 4.94(c) and 5.103 of the LG Act in their terms, operation or effect.[43] For similar reasons, the same issue arises with respect to clause 19 of the Municipal Employees Agreement.
[43] The Court also notes that, although not referred to in the submissions of the parties, s.4.95 of the LG Act might come into play. Section 4.95 of the LG Act purports to prescribe that an attempt to commit an offence, such as that under ss.4.88(1)(a) and 4.94(c) of the LG Act, is an offence punishable as if the offence had been committed.
It is unnecessary to consider for present purposes whether the provisions of the LG Act sought to be impugned are reasonably appropriate and adapted to serve a legitimate end in a manner compatible with representative and responsible government. It is unnecessary to consider that issue because, on the face of it, it is sufficient that the provisions of the LG Act sought to be impugned burden freedom of political communication in their terms, operation or effect. In any event, whether the law is reasonably appropriate and adopted to serve a legitimate end for the purposes prescribed appears to the Court to be a matter which is more appropriately argued in any hearing.
It is also unnecessary to consider s.4.87 of the LG Act. The requirement to name the printer of election material is not a prohibition on political communication.
In the circumstances, the Court has concluded that there is a matter, or matters, arising under the Constitution within the meaning of s.78B of the Judiciary Act.
Whether proceedings ought to be adjourned
Because the Court has found that there is a matter, or matters, arising under the Constitution for the purposes of s.78B(1) of the Judiciary Act, the issue arises as to whether the proceedings ought to be adjourned under s.78B(2)(a) of the Judiciary Act, so as to allow the issuance of a Section 78B Notice to the Attorneys-General of the Commonwealth and the States.
It is in fact the duty of the Court under s.78B(1) and 78B(2)(a) of the Judiciary Act not to proceed, but to adjourn to allow the Section 78B Notice to issue, except in very limited circumstances.[44]
[44] State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 66 ALR 129 at 131-132 per Kirby P.
Therefore, subject to whether any part or parts of the constitutional matter, or matters, said to arise might be properly severable, and capable of being heard separately from the matter, or matters, arising under the Constitution, it is appropriate that these proceedings be adjourned to allow service of a Section 78B Notice on the Attorneys-General of the Commonwealth and the States.
Whether issues severable
The Shire, and the CEO, argue that there is a severable issue related to the reason for which the action taken by the CEO was taken, and whether it is in fact adverse action. That is, under s.346 of the FW Act, what was the reason for the adverse action, and ought it be determined as a preliminary issue prior to the matter, or matters, giving rise to the constitutional issue in these proceedings?
What was suggested by the CEO was that the action was taken because of the inaccuracy of the statements made in the Flyer.[45]
[45] Mr Throssell’s Affidavit, para.23-24.
An examination of the CEO’s Email shows that it does commence with certain statements concerning the alleged inaccuracy, untruthfulness and offensiveness of the statements in the Flyer. However, in its terms it expressly goes on to refer to the CEO telling the Shire depot employees that they:
a)would breach the Code of Conduct if they:
i)distributed the Flyer; and
ii)advocated support for any candidates in the election;
b)could not represent themselves as Shire employees in disseminating the information in the Flyer to others (so that the prohibition extended beyond distribution of the Flyer, to dissemination of the information in the Flyer); and
c)“must not comment on what are clearly political issues.”
Objectively considered, the reason for the threatened action arguably goes much further than the mere inaccuracy, and untruthfulness or offensiveness, of the statements in the Flyer. Objectively the reasons for the action threatened in the CEO’s Email arguably include:
a)the dissemination of the information in the Flyer, which is arguably political information;
b)the advocacy of support for particular candidates in the election; and
c)the fact that comment is being made on political issues,
each of which the Shire and CEO seek to prohibit.
Each of the objectively determined arguable reasons, which are separate reasons to the inaccuracy, untruthfulness or offensiveness of the statements made in the Flyer, can arguably be said to go directly to issues of political communication by employees in relation to the election. The objectively determined arguable reasons would prevent not only the dissemination of inaccurate, untruthful and offensive statements, but would prevent, on the face of the directive in the CEO’s Email, advocacy and support for particular candidates in the local government election, and any political comment whatsoever on matters pertaining to the election, even between those ratepayers who are Shire depot employees.
It should also be noted that inaccurate, misleading, and possibly deceptive, comment may still be political communication protected by the implied constitutional guarantee of freedom of political communication, especially where not actuated by ill will or other improper motive.[46] Certainly polemical, that is controversial and disputatious, political communication, which is forcefully and strongly expressed, is protected.[47] Thus, even if the sole reason for the CEO’s action was the alleged inaccuracy, or untruthfulness or offensiveness, of the information in the Flyer, that does not prevent it from being political communication protected by the implied constitutional guarantee of freedom of political communication.
[46] Lange at 574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
[47] City of Adelaide at para.160 per Kouakis J.
In the circumstances, the Court is of the view that it is not possible to sever the CEO’s reasons for threatening to take action from the constitutional matter, or matters, which arise, because on an objective view of the CEO’s Email there are disclosed reasons which on their face arguably seek to prohibit political communication, and which are so intertwined with the nature of the activities defined as engaging in industrial activity for the purposes of s.347(b)(ii), (iii) and (v) of the FW Act, that it is not possible to sever the reasons for taking the alleged adverse action under s.346 of the FW Act from the constitutional matter or matters which arise.
It therefore follows that no issues will be severed for separate hearing by this Court by way of preliminary hearing prior to the determination of the matter, or matters, giving rise to the constitutional issue.
Continuance and terms of the injunction
The Shire and the CEO argue that the interim injunction ought to be discharged, essentially because the interim injunction is said to be directly inconsistent with s.4.94(c) of the LG Act, and the Court should presume the validity of s.4.94(c) of the LG Act and not restrain its operation. A similar argument could be put with respect to ss.4.88(1)(a) and 5.103 (operating through the Code of Conduct) of the LG Act, and clause 19 of the Municipal Employees Agreement.
The question of whether the interim injunction ought to remain in place still depends on:
a)whether there is a serious issue to be tried; and
b)where, as between the parties, the balance of convenience lies.
The raising of s.4.94(c), and indeed s.4.88(1)(a), of the LG Act does not lessen the seriousness of the issues to be tried. If anything, it increases the seriousness, because the provisions of s.4.94(c) of the LG Act impose a complete prohibition on freedom of political communication for Shire depot employees who are ratepayers, and not candidates in the election. Further, they make it an offence to engage in political communication of the prohibited type. That is directly inconsistent with the implied constitutional guarantee of freedom of political communication, subject to the question of whether or not the provisions of the LG Act are reasonably appropriate and adopted to serve a legitimate end compatible with representative and responsible government. Thus, the constitutional freedom clashes with a State law. In the circumstances, there is now a more serious issue to be tried than was the case when the interim injunction was first granted.
The balance of convenience is also affected by considerations associated with ss.4.94(c) and 4.88(1)(a) of the LG Act because a contravention of those provisions, or even an attempt to contravene them,[48] results in a person committing an offence. In the circumstances of this case, that might result in a Shire depot employee, who is also a ratepayer, committing an offence by distributing the Flyer to the mailboxes of other ratepayers in the Shire depot employee and ratepayer’s own time. Likewise, it would prevent a Shire depot employee and ratepayer from advocating for, or supporting any, particular candidate or candidates at the forthcoming elections, on pain of committing an offence. That makes consideration of the balance of convenience much more serious than it was when the interim injunction was first granted, when these offences were not drawn to the attention of the Court.
[48] LG Act, s.4.95.
The Shire and the CEO argue that the validity of the LG Act provisions ought to be assumed, and therefore because they are valid laws that the Court ought discharge the interim injunction. That argument has to be balanced against the fact of the implied constitutional guarantee of freedom of political communication. The true position in this case appears to be that there is a valid implied constitutional guarantee of freedom of political communication which is inconsistent with an otherwise valid State law. The Shire and the CEO ask the Court to give precedence to the State law when considering whether to discharge the interim injunction.
In the Court’s view any Australian court must give precedence to an implied constitutional guarantee of freedom of political communication where it arguably applies as against a State law, which may in fact be invalid if the implied constitutional guarantee of freedom of political communication applies. That is more so here where the assertion that the implied constitutional guarantee of freedom of political communication has been breached is a strongly arguable one. If the constitutional guarantee applies then the State law is invalid. In those circumstances, and bearing in mind that there are serious issues to be tried, and that if the interim injunction is not continued the Shire depot employees may, in a practical sense, lose the ability to exercise their democratic right of political communication, the balance of convenience favours the continuation of the interim injunction.
The Shire and the CEO also argued that the terms of the interim injunction ought to be amended to reflect the provisions of s.346 of the FW Act so that it does not prohibit the taking of any adverse action against an employee who electioneers, but rather because an employee electioneers. It was argued that if adverse action were to be taken against an employee who electioneers, or even because an employee electioneers, that would not be a breach of s.346 of the FW Act in its terms, because s.346 does not prohibit adverse action being taken against an employee who electioneers, but rather against an employee who engages in industrial activity where adverse action is taken against them for that reason. Counsel for the AMACSU characterised this argument as a distinction without a difference. In the Court’s view that is correct. Adverse action only occurs where the reason for it is the taking, or threatening to take, adverse action against an employee.
By definition, it is only adverse action against an employee of the Shire who electioneers in respect of the elections currently underway for positions of councillors, if the reason is the engaging in industrial activity as set out in s.347(b)(ii), (iii) and (v) of the FW Act. There will therefore be no change to the terms of the interim injunction, save that it will continue until the hearing of the application or further order of the Court.
Conclusion and orders
For the reasons set out above the Court has concluded that:
a)there is a matter, or matters, arising under the Constitution, which warrant the adjournment of these proceedings so as to allow the issuance of a Section 78B Notice by the applicant to the Atttorneys-General of the Commonwealth and the States; and
b)the existing interim injunction ought to be continued in its terms until the hearing of the application, or further order of the Court.
To facilitate service of the Section 78B Notice the proceedings will be adjourned for a period of not less than 28 days, and the matter is otherwise adjourned to a further directions hearing at noon on 4 November 2011.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 3 October 2011
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