KJK v Commissioner of Police

[2014] QDC 251

DISTRICT COURT OF QUEENSLAND

CITATION:

KJK v Commissioner of Police [2014] QDC 251

PARTIES:

KJK
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

1095/14

DIVISION:

Crime

PROCEEDING:

Interlocutory judgment

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2014

JUDGE:

Butler SC DCJ

ORDER:

That notices be given under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth, States and Territories.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – interlocutory order

CONSTITUTIONAL LAW – PRACTICE AND PROCEDURE – assertion State law invalid as inconsistent with Commonwealth law – whether matter arising under the Constitution or involving its interpretation – whether notice is required to be given under s 78B of the Judiciary Act 1903 (Cth)

COUNSEL:

The appellant appeared on his own behalf

S J Bain for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions for the respondent

1. This decision involves determination of an interlocutory issue in an appeal against a conviction imposed in the Brisbane Magistrates Court for breach of a domestic violence protection order (“the Protection Order”) made under the Domestic and Family Violence Protection Act 2012 (Qld) (“the DFVP Act”).

1. The breach alleged was the entry by the appellant of premises at the workplace of his former wife (“the aggrieved”), in contravention of a prohibition in the Protection Order against going to those premises. 

1. The appellant and the aggrieved are the parents of two children.  Following divorce, their time with the children is determined in accordance with a Family Court order detailing parenting arrangements (“the Parenting Order”).  The Protection Order was made subsequent to the Parenting Order.

1. The Parenting Order relevantly provided for the children to live with the appellant each alternative weekend, commencing from after school on Friday.  The appellant attended at the workplace of the aggrieved after school hours on a Friday afternoon of a scheduled alternative weekend, he having failed to find one of the children, his nine-year-old daughter, either at school or at home.  He asked, “Where is my daughter?” It appears from the evidence that the appellant attended an area of the premises open to the public and therefore his actions would not have been unlawful under Queensland law but for the prohibition in the Protection Order. 

1. There is no contest on the appeal as to the appellant’s attendance at the premises.  Rather, the appellant submits that the Protection Order was invalid insofar as it purported to prevent him from attending the relevant premises in order to inquire about or collect his daughter in accordance with the parental responsibilities (duties, powers, responsibilities and authority in relation to the children[1]) extended to him under the Family Law Act 1975 (Cth) (“the FL Act”) and the Parenting Order made under that Act.

   [1]See definition in Family Law Act 1975 (Cth) s 61B.

1. The appellant submits that pursuant to s 109 of the Australian Constitution the State law in this matter is inconsistent with the exercise of his rights under Commonwealth law.

1. The appellant advances three bases upon which inconsistency is said to arise. Firstly, he submits the FL Act is intended to cover the whole field and that domestic violence issues arising between parents party to parenting arrangements under the Act may only be addressed by virtue of that Act’s own provisions. Secondly, he argues there is inconsistency between extension of parental responsibility to him by the FL Act and the purported limitation of the exercise of that parental responsibility by the DFVP Act. Thirdly, he submits there is inconsistency between his entitlement to have the child stay with him under the Parenting Order and the prohibition upon him under the Protection Order from attending premises in order to inquire about or collect the child.

1. The respondent submits the FL Act did not intend to cover the field as Part VII Division 11 provides a process for resolving inconsistencies between that Act and the Queensland DFVP Act. Secondly, the respondent argues that on a true construction of the Parenting Order no direct inconsistency arises as between that order and the Protection Order. The respondent submits that as the Parenting Order only provided for the children to be collected from school or home, the prohibition in the Protection Order on the appellant attending the workplace of the aggrieved did not conflict with his entitlements under the Parenting Order. While the respondent’s submission in answer to the appellant’s first basis seems to be compelling, the appellant’s arguments on the second and third bases seem to me to be fairly arguable.

1. Where there is a cause pending which “involves a matter” arising under the Constitution or involving its interpretation, s 78B of the Judiciary Act 1903 (Cth) imposes a duty on the Court not to proceed until notice has been given to the Attorneys-General of the Commonwealth, States and Territories.

1. A cause does not “involve” a matter arising under the Constitution merely because someone asserts it does: Re Finlayson; ex parte Finlayson[2]. The matter must “really and substantially” arise under the Constitution and the constitutional question must be a “live issue in the proceedings”.[3]

   [2](1997) 72 ALJR 73 at 74, per Toohey J.

   [3]Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489.

1. The respondent accepts Commonwealth law will prevail should a direct inconsistency between the Protection Order and the Parenting Order be demonstrated. The respondent argues therefore there is no dispute as to the operation of s 109 of the Constitution and resolution of the appeal will depend on the construction to be given to the terms of the Parenting Order.

1. In Belton v General Motors–Holden’s Ltd (No 1)[4], where the question of inconsistency was dependent on interpretation of an Australian Conciliation and Arbitration Commission award and the consequences of inconsistency were undoubted, the High Court held that nonetheless the appeal involved interpretation of s 109 of the Constitution. That case has been followed in cases involving the meaning of a definition in s 4 of the Family Law Act[5] and the interpretation of a regulation made under the Family Law Act[6].

   [4](1984) 58 ALJR 352.

   [5]Renouf v Renouf (1987) 93 FLR 256.

   [6]Re: S and the Adoption Act 2000 (NSW) [2005] NSWSC 1346.

1. Because it is arguable there is a direct inconsistency between the Commonwealth Parenting Order and the Queensland law, even though the resolution of that question depends on the interpretation to be given to the Parenting Order, in my view a matter involving the interpretation of s 109 of the Constitution arises in this case. Accordingly, under s 78B I am obliged not to proceed unless and until I am satisfied that notices have been given to the Attorneys-General of the Commonwealth, States and Territories.

1. I will hear submissions from the parties as to the form the notices should take.