Constitutional law—Standing—Plaintiffs seeking declaration of inconsistency between a law of a State and a law of the Commonwealth—Application to strike out for want of jurisdiction—Whether plaintiffs' claim a "matter" for purposes of s 76(i) of the Constitution and s 30(a) of the Judiciary Act 1903 (Cth)—Whether application for declaration was divorced from any attempt to administer the allegedly inconsistent law—Whether plaintiffs have sufficient interest to bring action. Constitution, ss 76(i), 109. Judiciary Act 1903 (Cth), s 30(a).
Orders
Defendant's summons dismissed with costs including reserved costs.
Decision
BRENNAN CJ, DAWSON AND TOOHEY JJ. 1. The writ issued by the plaintiffs (the present respondents) against the State of Tasmania (the applicant) was accompanied by a statement of claim in which the plaintiffs plead, inter alia, that -
"7. Each of the plaintiffs has had sexual relations (including sexual intercourse) with each other, and intends to continue to have, sexual relations (including sexual intercourse) with male persons."
2. The conduct referred to is said to be proscribed by sections 122(a) and (c) and 123 of the Criminal Code (Tas) ("the Code"). Those provisions read as follows:
"122. Any person who -(a) has sexual intercourse with any person against the order of nature;(b) ...(c) consents to a male person having sexual intercourse with him or her against the order of nature,is guilty of a crime. Charge: Unnatural sexual intercourse.""123. Any male person who, whether in public or private, commits any indecent assault upon, or other act of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime. Charge: Indecent practice between male persons."
3. The plaintiffs seek declarations that ss 122(a) and (c) and 123 of the Code are inconsistent with the provisions of s 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) and, to the extent of the inconsistency, are invalid by force of s 109 of the Constitution. Section 4 of the Commonwealth Act provides:
" (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.[1] (2) For the purposes of this section, an adult is a person who is 18 years old or more."
4. The statement of claim pleads that each of the plaintiffs is a male person over 18 years of age.
5. The State of Tasmania was given leave to enter a conditional appearance on condition that it take proceedings within 14 days to set aside the writ. It applied by summons for orders that:
"1. The writ and statement…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Croome v Tasmania [1997] HCA 5
Case
[1997] HCA 5
Decision Date
CaseChat Overview and Summary
The plaintiffs, Croome and others, sought a declaration that Tasmania's *Criminal Code Act 1924* (Tas) was inconsistent with the *International Covenant on Civil and Political Rights* (ICCPR), to which Australia was a party, and therefore invalid under s 109 of the *Australian Constitution*. The defendant, the State of Tasmania, applied to strike out the plaintiffs' application for want of jurisdiction, arguing that the case did not constitute a "matter" within the meaning of s 76(i) of the *Constitution* and s 30(a) of the *Judiciary Act 1903* (Cth). The High Court of Australia was required to determine whether the plaintiffs had standing to bring the action, considering whether their claim was a genuine controversy or "matter" and whether they possessed a sufficient interest in the subject matter to maintain the proceedings.
The Court considered whether the plaintiffs' claim, which sought to invalidate a Tasmanian law based on its inconsistency with an international treaty, could be characterised as a "matter" arising under the *Constitution* or involving its interpretation. The central question was whether the plaintiffs' assertion of inconsistency, without demonstrating a direct personal grievance or a specific legal right being infringed by the operation of the Tasmanian law, was sufficient to engage the jurisdiction of the High Court. The Court examined the nature of the relief sought and whether it was divorced from any attempt to administer or enforce the allegedly inconsistent law, focusing on the requirement for a real and not hypothetical controversy.
The majority of the Court held that the plaintiffs did not have standing to bring the action. They reasoned that the plaintiffs had failed to demonstrate that they had a sufficient interest in the subject matter of the litigation to constitute a "matter" for the purposes of the *Constitution* and the *Judiciary Act*. The Court distinguished this case from those where standing had been granted, emphasizing that the plaintiffs were not seeking to challenge the application of the law to themselves, nor were they asserting a right that was being directly affected by the law. The mere assertion of inconsistency with an international treaty, without more, was not enough to confer standing.
The defendant's summons to strike out the plaintiffs' application was dismissed with costs, including reserved costs.
Orders
Orders of the court
Defendant's summons dismissed with costs including reserved costs.