Despoja, Mario Sime v Durack, Peter Drew

DESPOJA v. DURACK (1979) 40 FLR 230
Constitutional Law - Courts

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Blackburn(1), St. John(1), Northrop(1) JJ.

CATCHWORDS

Constitutional Law - Diplomatic and Consular Missions Act 1978 (Cth.) - Constitutional validity - "External affairs" power - Statutory interpretation - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxix).

Courts - Practice and procedure - "Court may issue a warrant" - Meaning confined to judicial Acts - May order issue of warrant - Contents of warrant - Statutory requirements - Diplomatic and Consular Missions Act 1978 (Cth.), s. 5.

HEADNOTE

In November 1977 the appellant established the "Croatian Embassy" in Canberra. On 24th August, 1978, the Diplomatic and Consular Missions Act 1978 (Cth.) came into force. The appellant refused to give certain undertakings requested by the Commonwealth Attorney-General in relation to the "Croatian Embassy", whereupon, on 21st June, 1979, by notice of motion the Attorney-General sought and was granted injunctions restraining the appellant from committing breaches of that Act. On appeal,

Held: (1) The Diplomatic and Consular Missions Act 1978 was a valid Commonwealth statute made pursuant to the "external affairs" power of the Constitution.

(2) There is no significance in the omission of the words "of a country" in s. 4 (1) as contrasted with s. 4 (2).

(3) However any warrant issued pursuant to s. 5 of the Act must specify the matters prescribed therein relating to the time during which such warrant is to remain in force and any express authority of entry on to specified premises.

Order varied in part but otherwise affirmed.

HEARING

Canberra, 1979, October 9; November 13. #DATE 13:11:1979

APPEAL.

Appeal from an order of Smithers J. made on 7th August, 1979, whereby he ordered the issue of a warrant pursuant to s. 5 of the Act.

The material facts appear from the judgment.

J. Lloyd-Jones Q.C. and M. Somner-Potts, for the appellant.

G. G. Masterman Q.C. and D. H. Hodgson, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Graham Meyer & Co.

Solicitor for the respondent: B. J. O'Donovan (Acting Commonwealth Crown Solicitor).

D. LEVIN

JUDGE1

November 13.

THE COURT delivered the following written judgment.

This is an appeal from an order made by the Federal Court constituted by a single judge restraining the appellant from engaging or attempting to engage in conduct described in the order and being conduct within s. 4 of the Diplomatic and Consular Missions Act 1978, hereinafter called "the Act", and from an order that a warrant issue under s. 5 of the Act. The facts are not in dispute. In November 1977 the appellant established what purported to be a Croatian Embassy at 34 Canberra Avenue, Forrest, in the Australian Capital Territory. The Act came into operation on 24th August, 1978. Sections 4 and 5 of the Act are as follows:

"4. (1) The Court may, on the application of the Attorney-General,

grant an injunction restraining a person -

(a) from engaging, or attempting to engage, in conduct that is, in relation to a diplomatic or consular mission established in Australia with the consent of the Commonwealth, conduct to which this sub-section applies by virtue of sub-section (2);

(b) from aiding, abetting, counselling or procuring a person to engage in any such conduct;

(c) from inducing, or attempting to induce, a person, whether by threats, promises or otherwise, to engage in any such conduct; or

(d) from being in any way directly or indirectly a party to the engaging by a person in any such conduct.

(2) The conduct that is, in relation to a diplomatic or consular mission of a country established in Australia with the consent of the Commonwealth, conduct to which sub-section (1) applies is -

(a) conduct by way of displaying, or causing or permitting to be displayed, either within, on or outside premises (other than premises at which an office of that mission or the residence of a member of that mission is located) any sign, flag or insignia that states, implies or is reasonably capable of being taken to imply that there is located at the premises an office of a mission, or the residence of a member of a mission, that represents, in a diplomatic or consular capacity, that country or a part of that country, the people of that country or of a part of that country or a government of that country or a part of that country; or

(b) conduct by way of making or publishing, or causing or permitting to be made or published, any representation that states, implies or is reasonably capable of being taken to imply that there is located in Australia a mission (other than the diplomatic or consular mission of that country) or that a person in Australia occupies a position in a mission (other than the diplomatic or consular mission of that country), that represents, in a diplomatic or consular capacity, that country or a part of that country, the people of that country or of a part of that country or a government of that country or a part of that country.

(3) Where, in the opinion of the Court, it is desirable to do so, the Court may grant an interim injunction pending determination

of an application under sub-section (1).

(4) The Court may rescind or vary an injunction under sub-section

(1) or (3).

(5) Where an application is made to the Court for the granting of an injunction restraining a person from engaging in conduct of a particular kind, being conduct referred to in sub-section (1), the Court may -

(a) if it is satisfied that the person has engaged in conduct of that kind - grant an injunction under sub-section (1) restraining the person from engaging in conduct of that kind; or

(b) if, in the opinion of the Court, it is desirable to do so - grant an interim injunction under sub-section (3) restraining the person from engaging in conduct of that kind,

(6) Where an application is made to the Court for the granting of an injunction restraining a person from engaging in conduct of a particular kind, being conduct referred to in sub-section (1), the Court may -

(a) if it appears to the Court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind - grant an injunction under sub-section (1) restraining the person from engaging in conduct of that kind; or

(b) if, in the opinion of the Court, it is desirable to do so - grant an interim injunction under sub-section (3) restraining the person from engaging in conduct of that kind,

whether or not the person has previously engaged in conduct of that kind.

(7) Where the Attorney-General makes an application to the Court for the granting of an injunction under this section, the Court shall not require the Attorney-General or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

5. (1) Where, in a proceeding under section 4 for an injunction (including an interim injunction), the Court has found that conduct by way of displaying a sign or flag, or insignia, either within, on or outside premises, or by way of causing or permitting a sign or flag, or insignia, to be so displayed, constitutes conduct that is, in relation to a diplomatic or consular mission of a country established in Australia with the consent of the Commonwealth, conduct to which sub-section 4 (1) applies, the Court

may, upon application made by the Attorney-General, issue a warrant authorizing the Sheriff, or a Deputy Sheriff, of the Court, with such assistance as he deems necessary, to remove the sign, flag or insignia from the premises, or to obliterate the sign, flag or insignia on the premises, as the case requires, and, at any time and from time to time while the warrant is in force, to remove or to obliterate, as the case requires, any similar or substantially similar sign, flag or insignia that may subsequently

be displayed, within, on or outside the premises.

(2) An application for the issue of a warrant under sub-section

(1) may be included in an application to the Court under section 4 for an injunction (including an interim injunction) or may be made to the Court as a separate application.

(3) A warrant issued by the Court under sub-section (1) may authorise entry, if necessary by force, onto or into the premises for the purpose of removing or obliterating the sign, flag, or insignia.

(4) Where a warrant under this section authorizes entry onto or into premises, the warrant shall state whether entry is authorized to be made at any time of the day or night or only during specified hours of the day or night.

(5) A warrant under this section shall specify the period for which it is to remain in force, being a period not exceeding 6 months, but may be revoked by the Court at any time before the expiration of the period so specified.

(6) Sub-section (5) shall not be construed as preventing the issue of a further warrant.

(7) Where a sign or flag, or insignia, is removed by the Sheriff or a Deputy Sheriff in pursuance of a warrant issued under this section, it shall be destroyed or otherwise disposed of in such manner as the Minister directs.

(8) A person shall not, without reasonable excuse, obstruct or hinder a person acting in pursuance of a warrant issued under this section.

Penalty: $200." (at p233)

The Socialist Federal Republic of Yugoslavia is recognized by the Government of the Commonwealth of Australia as a sovereign State and the Socialist Republic of Croatia is a constituent republic thereof. The Republic of Yugoslavia is a country within the meaning of the Act and Croatia is a part of that country. The Republic of Yugoslavia has established a diplomatic mission in Australia with the consent of the Commonwealth. Since 24th August, 1978, the appellant has engaged in conduct which clearly comes within the conduct described in s. 4 of the Act. (at p233)
The Attorney-General, by letter dated 6th June, 1979, wrote to the appellant making reference to the Act and the conduct of the appellant with respect to the premises at 34 Canberra Avenue, Forrest. The letter contained the following paragraphs: "I am writing to give you notice that unless within fourteen days the signs, shield and flag have been removed from the premises and also I receive from you undertakings to refrain from certain conduct as set out below, I will apply to the Federal Court of Australia for injunctions restraining you from engaging in that conduct, and for a warrant authorizing the Sheriff of the Court to remove the signs, shield and flag from the premises. (at p234)
"The undertakings I seek are that you will not henceforth: (a) display or cause or permit to be displayed within, on or outside the said premises or any other premises any sign, flag or insignia which states or implies or is reasonably capable of being taken to imply that there is located at such premises any office of a mission or residence of a member of a mission that represents in a diplomatic or consular capacity a part of Yugoslavia, namely Croatia, or the people of such part of Yugoslavia; or (b) make or publish or cause or permit to be made or published any representation that states or implies or is reasonably capable of being taken to imply that there is located in Australia a mission (other than a diplomatic or consular mission of Yugoslavia) that represents in a diplomatic or consular capacity a part of Yugoslavia, namely Croatia, or the people of such part of Yugoslavia." (at p234)
By letter dated 19th June, 1979, the solicitors for the appellant replied to the letter from the Attorney-General as follows: "We act for Mr. Despoja and have been handed a copy of your letter to him dated 6th June, 1979. We are instructed to deny that anything displayed at the premises 34 Canberra Avenue, Forrest, Australian Capital Territory is in breach of any valid law of the Commonwealth. The undertakings that you seek are therefore not given." (at p234)
On 21st June, 1979, the Attorney-General gave notice of the motion which led to the order under appeal. (at p234)
Counsel for the appellant contended that the Act was invalid as being beyond the powers of the Parliament. The power in question is that given by s. 51 (xxix) of the Constitution, to make laws for the peace, order, and good government of the Commonwealth with respect to external affairs. This argument was put to the learned judge at first instance, but he did not refer to it in his reasons for judgment. (at p234)
In our opinion the Act is plainly within the power granted by s. 51 (xxix). The establishment and maintenance of normal and proper diplomatic relationships between Australia and other countries is a matter within the category of "external affairs". Public recognition that a particular diplomatic mission has sole authority within Australia to represent its Government is obviously a part of the maintenance of normal diplomatic relationships. A claim by a person who is not a member of a particular mission, that he has diplomatic status as a representative of a part of, or an element in, a country which that mission does in fact represent, is a claim inconsistent with the authority of that mission to represent its Government, and an assertion that the diplomatic status and authorities of that mission are challenged or limited. Legislation to provide machinery whereby such claims, or conduct implying such claims, may be judicially restrained at the suit of the Attorney-General, is legislation with respect to the maintenance of normal diplomatic relationships, and thus legislation with respect to Australia's external affairs. (at p235)
The court has acted, with the assent of counsel on both sides, on the assumption that it is unnecessary to apply s. 78B of the Judiciary Act 1903 to a case in which the Attorney-General is a party. (at p235)
Counsel for the appellant contended further that on its true construction, the Act was with respect to preventing political demonstrations. He relied upon the absence of the words "of a country" appearing after the word "mission" in s. 4 (1) (a) of the Act and compared this with the inclusion of those words in s. 4 (2). He contended that s. 4 (2) described conduct which related to a country, (which his client's conduct was) whereas the power to grant the injunction, in s. 4 (1), is in respect only of conduct in regard to a mission (which his client's conduct was not). In our opinion the omission of the words "of a country" from s. 4 (1) is immaterial. The words "of a country" refer to and describe a diplomatic or consular mission and their absence from s. 4 (1) (a) cannot alter the meaning of the words "diplomatic or consular mission" as used in that section. A diplomatic or consular mission must be a mission of a country. It can have no other meaning. The essential feature of the conduct by the appellant is that the conduct implies that there is located at the premises, 34 Canberra Avenue, Forrest, an office of a mission namely Croatia that represents in a diplomatic or consular capacity a part of a country, namely, the Republic of Yugoslavia, which has established a diplomatic mission in Australia with the consent of the Commonwealth. It is beside the point that the conduct may have been politically inspired as a protest against the Republic of Yugoslavia. What is relevant is that the conduct gives rise to the necessary implication and constitutes a representation within the meaning of s. 4 of the Act. Accordingly, the order granting the injunction was properly made. (at p235)
Counsel for the appellant also attacked that part of the order of the learned judge which purported to order the issue of a warrant in pursuance of s. 5 of the Act. The material words of the order are: "A warrant be issued for the removal or obliteration, as the case requires, of: (a) any sign, flag or insignia displayed either within on or outside premises at 34 Canberra Avenue, Forrest, aforesaid, being a sign, flag or insignia the display of which constitutes conduct that is, in relation to the diplomatic mission of the Socialist Federal Republic of Yugoslavia established in Australia with the consent of the Commonwealth, conduct to which s. 4 (1) of the said Act applies; and (b) any similar or substantially similar sign, flag or insignia that may subsequently be displayed within, on or outside the said premises." (at p235)
Counsel argued that if the warrant were to authorize entry onto or into the premises, the order should have been so expressed, and should have mentioned the hours of such entry. He also argued that in accordance with s. 5 (5) the order should have specified the time during which the warrant was to remain in force. The appellant was allowed to amend the notice of appeal for the purpose of taking this point. (at p236)
It was submitted by counsel for the respondent that the Act does not require or authorize the court to order the issue of a warrant, but only to issue one; the order complained of was therefore nugatory but not invalid in the sense that it resulted in a void warrant. This contention is in our opinion incorrect. Section 5 (1) cannot be read as authorizing the performance of a merely administrative act by the court; it is intended to authorize the exercise of judicial power, and thus "to issue a warrant" must be taken as meaning "make an order for the issue of a warrant". Judicial power must be exercised by the making of an order and not the doing of an administrative act. It follows, in our opinion, that such an order should specify the matters referred to in s. 5 (4) if they are required to be specified, and must in every case specify the time for which the warrant is to remain in force, in accordance with s. 5 (5). The order made by the learned judge was therefore incorrect in this respect. (at p236)
The order of the court will be that the order of the court below be varied by adding the following paragraph after that numbered 2: "Such warrant shall authorize entry if necessary by force onto and into the said premises at any time of the day or night for the purpose of removing or obliterating such sign, flag or insignia and shall remain in force for six months", but otherwise be affirmed, and that the appellant pay the respondent's costs to be taxed. (at p236)

ORDER

Order accordingly.

[1979] FCA 118

13 NOVEMBER 1979