Clarkson v Human Rights and Equal Opportunity Commission

[2007] HCATrans 769

[2007] HCATrans 769

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S198 of 2007

B e t w e e n -

MARK ALFRED CLARKSON

Applicant

and

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Respondent

Application for removal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 DECEMBER 2007, AT 9.38 AM

Copyright in the High Court of Australia

HAYNE J: The applicant seeks an order pursuant to s 40 of the Judiciary Act 1903 (Cth) removing what is described as "part of the cause now pending in the Federal Court of Australia which is proceeding number ACD14 of 2006" between Mr Clarkson as applicant and the Human Rights and Equal Opportunity Commission ("the Commission") as respondent. The applicant is unrepresented. The Commission has filed a submitting appearance.

The proceeding, part of which it is sought to remove into this Court, is an application to review decisions of the President of the Commission dated 7 September 2006 and 18 January 2007 not to investigate a complaint of the applicant.  The complaint concerned the applicant's access to computers when he was held as a prisoner at Junee Correctional Centre.  Between 26 November 2004 and 25 June 2006, the applicant was serving sentences of imprisonment for Commonwealth offences and from 25 June 2006 until his release on 25 March 2007 he was serving sentences of imprisonment for State offences.

The applicant contends that the proceedings pending in the Federal Court raise a question about the interpretation of s 120 of the Constitution and he has given notices under s 78B of the Judiciary Act. The applicant seeks removal of so much of the cause pending in the Federal Court as raises the constitutional question. Neither the s 78B notice nor the application for removal clearly identifies the constitutional question that it is said arises in the proceedings.

It is alleged, however, that the point bears upon other applications Mr Clarkson has pending in the Court.  Those applications include:

(a)an application for special leave to appeal (S199 of 2007) against orders of the Court of Criminal Appeal of New South Wales dismissing Mr Clarkson's appeals against conviction of and sentences for the offences which led to his imprisonment during the periods described above;

(b)an application for special leave to appeal (S200 of 2007) against orders of the Court of Appeal made in relation to a case stated pursuant to s 72(1) of the Judiciary Act, an application for prerogative relief, and an application to show cause made in this Court but remitted to the Supreme Court of New South Wales Common Law Division, all of which related, directly or indirectly, to Mr Clarkson's trial for the offences for which he was serving the above sentences;

(c)an application for special leave to appeal (C3 of 2007) against the orders of a single judge of the Federal Court of Australia (Madgwick J) granting leave to appeal against an order for costs made by another judge of that Court (Finn J) disposing of an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) concerning the conditions under which Mr Clarkson was imprisoned, but otherwise dismissing the application for leave to appeal; and

(d)two applications for leave to appeal (S514 of 2007 and S515 of 2007) against orders of Heydon J dismissing two applications for an order to show cause, again relating to Mr Clarkson's imprisonment and the circumstances in which he was incarcerated.

The application for an order for removal should be dismissed.  It is far from clear that any constitutional question does arise in the cause, part of which it is now sought to remove into this Court.  If a constitutional question does arise in that cause, it is not shown that the cause or any part of it should now be removed.

Pursuant to r 41.11.1 (as applied in this application by rr 26.05.2 and 26.05.3) we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish that disposition.

AT 9.43 AM THE MATTER WAS CONCLUDED