Menzies & Bruce v Owen
[2013] QCAT 527
| CITATION: | Menzies & Bruce v Owen [2013] QCAT 527 |
| PARTIES: | Ms Richelle Menzies and Ms Rhonda Bruce (Applicants) |
| v | |
| Mr Ronald Owen (Respondent) |
| APPLICATION NUMBER: | ADC009-06; ADC011-06 |
| MATTER TYPE: | Anti-Discrimination matters |
| HEARING DATE: | 30 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Clare Endicott, Senior Member Hon John Jerrard QC, Member |
| DELIVERED ON: | 26 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for a stay in this matter and the alternate applications made by the Respondent are dismissed.1. The orders described already herein for filing of affidavits and a directions hearing are made.2. |
| CATCHWORDS: | PROCEDURE – JURISDICTION – STAY OF PROCEEDINGS – where proceedings remitted to the Queensland Civil and Administrative Tribunal by an order of the Supreme Court of Queensland – where the respondent submits that QCAT is not a ‘court of a State’ within the meaning of the Commonwealth Constitution – where the respondent submits that ss 131 and 132 of the Queensland Civil and Administrative Tribunal Act 2009 deprive the Supreme Court of its decisional independence – whether the stay should be granted PROCEDURE – GENERAL – PRECEDENTS – STATE AND TERRITORY SUPREME COURTS – where the applicants and respondent sought to amend the case stated to include two further questions – where the Supreme Court did not grant leave to amend the questions referred to that Court – where the Supreme Court then answered the questions sought to be included – where the respondent submits that the Supreme Court did not consider those questions in a binding sense – whether the ratio of the Supreme Court is limited to, or defined by, the applications brought to that Court PROCEDURE – JURISDICTION – FORMER TRIBUNALS – where the applicants’ original application commenced in the Anti-Discrimination Tribunal – where the Anti-Discrimination Tribunal was replaced by the Queensland Civil and Administrative Tribunal with the passing of the Queensland Civil and Administrative Tribunal Act 2009 – where the applicants seek the matter to be treated as an ‘existing tribunal proceeding’ – where s 244 of the QueenslandCivil and Administrative Tribunal Act 2009 provides that an existing tribunal proceeding means a proceeding that was started before a former tribunal under a former Act before the commencement; and at the commencement, has not been withdrawn, dismissed, struck out or otherwise disposed of under the former Act – where s 257 of the QueenslandCivil and Administrative Tribunal Act 2009 provides that an existing tribunal proceeding must be constituted by the persons who constituted the former tribunal immediately before the commencement of that Act – where the respondent submits the member who constituted the Anti-Discrimination Tribunal did not do so immediately before the commencement of the Act – whether the application should be treated as an existing tribunal proceeding Anti-Discrimination Act 1991 (Qld) s 124A Carruthers v Connolly [1998] 1 Qd R 339, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | S J Hamlyn-Harris of Counsel, with S Robb of Counsel, instructed by Caxton Legal Centre |
| RESPONDENT: | R W Haddrick of Counsel instructed by SK Lawyers |
REASONS FOR DECISION
This matter is an application for a stay order, presumably relying on s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), asking for a stay of proceedings in this Tribunal being conducted under the Anti-Discrimination Act 1991 (Qld). Those proceedings were remitted to this Tribunal by an order of the Supreme Court of Queensland.
The grounds of the stay were specified in a written submission by counsel for the Respondent,[1] in which counsel submitted that:
a) the Queensland Civil and Administrative Tribunal is not a ‘court of a State’ for the purposes of s 77(iii) of the Constitution[2]; and
therefore,
b) sections 131 and 132 of the QCAT Act are beyond the legislative competence of the Parliament of Queensland as they deprive the Supreme Court of Queensland of its decisional independence in deciding what is, or is not, an order of the Supreme Court of Queensland.
[1]Ronald Owen, ‘Respondent’s Outline of Submissions’ Submissions in Menzies & Anor v Owen, ADC009-06, 29 April 2013, [2].
[2]The Commonwealth Constitution established by the Commonwealth of Australia Constitution Act 1990 (UK).
If the Respondent’s contentions are correct they apply to all decisions of QCAT, not simply those involving an asserted constitutional issue. The Kable[3] point contended for by the Respondent in the second leg of the basis of the application applies to all Chapter III State courts in which QCAT decisions may be filed and enforced. The Respondent’s second contention is strengthened if QCAT is not a court of a State, but does not depend upon the first contention being correct. For that reason, a three member tribunal was constituted to hear the application for a stay.
[3]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable (No 1)).
This matter has a somewhat lengthy history in QCAT. That history is usefully described in the judgment of McMurdo P at paragraphs [22] – [36] in Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen[4] and it is helpful to summarise it.
[4][2012] QCA 170 (Owen v Menzies & Ors).
The Applicants in this matter, Ms Bruce and Ms Menzies (and some others), had complained to the Anti-Discrimination Tribunal of a breach of s 124A of the Anti-Discrimination Act 1991 (Qld) by the Respondent, Mr Owen.
In that Tribunal Mr Owen argued that s 124A of the Anti-Discrimination Act 1991 was unconstitutional and the Member constituting the Anti-Discrimination Tribunal held that that Tribunal was not permitted to decide that issue. That Member found that Mr Owen had vilified the complainant Ms Menzies, in contravention of s 124A, and on 19 September 2008 ordered Mr Owen to pay Ms Menzies $5,000 and to publish an apology, and dismissed the complaint of the complainant Ms Bruce. The Member did that after holding that the complainant Ms Bruce, as a bisexual person, had no standing to bring a complaint, complaining about vilification as a homosexual. On 27 November 2008 the Member constituting that Tribunal ordered that Mr Owen pay half the costs of the complainant Ms Menzies.
Mr Owen appealed that decision and costs order (as the Anti-Discrimination Act 1991 permitted) to the Trial Division of the Supreme Court, i.e. the orders of 19 September 2008 and the costs order of 27 November 2008. Ms Bruce also appealed against the dismissal of her complaint to the Trial Division of the Supreme Court.
On 1 December 2009 the QCAT Act came into force, but s 259 of that Act had the result that the Supreme Court was required to hear and decide the appeal under the Anti-Discrimination Act 1991 as if that latter Act was still in force, despite the abolition of the Anti-Discrimination Tribunal by reason of ss 244 and 247, and Schedule 1 to the QCAT Act. Chapter 7, Part 2, Division 1 of the QCAT Act substituted the new Tribunal, QCAT, for a number of abolished formerly existing Tribunals.
The following summary of the proceedings in the Supreme Court is, again, taken from the reasons of McMurdo P in Owen v Menzies & Ors:
[26] Mr Owen’s appeals (BS No 10395 of 2008 and BS No 100 of 2009) were heard by Douglas J on 16 September 2010. Mr Owen had issued notices under s 78B Judiciary Act 1903 (Cth) to the Commonwealth and State Attorneys-General, but none wished to appear. His Honour summarised Mr Owen’s constitutional arguments in this way. He contended that s 124A was invalid. The former tribunal was not capable of exercising the judicial power of the Commonwealth in determining that issue. The former tribunal’s orders had been made without a determination of the constitutional arguments. The filing of those orders in the Supreme Court under s 212 Anti-Discrimination Act was unconstitutional. Accordingly, Mr Owen argued, the former tribunal‘s order should be set aside.
[27] His Honour noted that the respondents to Mr Owen’s appeals did not submit that his constitutional arguments were incapable of triggering an exercise of the judicial power of the Commonwealth. The respondents also accepted that the former tribunal was not a court of a State as that term is used in s 77(iii) of the Constitution.
[28] Douglas J reached the following conclusions. The decision of the New South Wales Court of Appeal in Attorney-General (NSW) v 2UE Sydney Pty Ltd was factually similar. The former tribunal’s orders were registered in the Supreme Court of Queensland under s 212 Anti-Discrimination Act. This made the otherwise permissible action of the former tribunal‘s consideration and interpretation of constitutional arguments an impermissible exercise of federal jurisdiction. As the former tribunal had determined the case without reference to the constitutional issues raised by Mr Owen, its binding orders effectively determined those issues against him, without considering the arguments and without a court with appropriate jurisdiction considering them. The former tribunal should have referred the issues arising under the Constitution to the Supreme Court for determination under s 216 Anti-Discrimination Act.
[29] Accordingly, in Mr Owen’s appeals Douglas J set aside the decision and orders of the former tribunal and sent the matter to QCAT for referral back to the Court of Appeal Division of the Supreme Court under s 118 QCAT Act for determination of the constitutional arguments. Once the Court of Appeal determined those issues, QCAT would apply that determination to the case. There would then be an issue estoppel binding the parties arising from the adjudication of a Chapter III (Ch III) court under the Constitution.
The case stated
[30] As Douglas J anticipated, on 4 March 2011 a Senior Member of QCAT stated the following case to the Supreme Court of Queensland under s 216 Anti-Discrimination Act 1991:
“1. Were the proceedings in the Anti-Discrimination Tribunal an impermissible exercise by the tribunal of the judicial power of the Commonwealth under Chapter III of the Commonwealth Constitution?
2. Is section 212 of the Anti-Discrimination Act 1991, providing for the registration and enforcement of orders of the Anti-Discrimination Tribunal, inconsistent with Chapter III of the Commonwealth Constitution, and therefore invalid, so far as it purports to apply in these proceedings?
3. Is section 124A of the Anti-Discrimination Act 1991 inconsistent with the implied protection of freedom of political communication provided by the Commonwealth Constitution and therefore invalid?
4. Alternatively, to what extent is section 124A of the Anti-Discrimination Act 1991 to be read down in order to comply with the implied protection of freedom of political communication provided by the Commonwealth Constitution?
5. Does a bisexual person have standing under section 134(1)(a) of the Anti-Discrimination Act 1991 to complain about vilification on the ground of homosexuality?” (footnotes omitted)
The judgment of McMurdo P records how notices pursuant to s 78B of the Judiciary Act 1903 (Cth) were served on the Commonwealth and State Attorneys-General but only the Queensland Attorney-General chose to intervene under s 78A Judiciary Act 1903, and how, during the hearing, counsel for that Attorney-General submitted that questions 1 and 2 of the case stated did not address the correct issues.
Counsel submitted (and the Court of Appeal Judges all, by implication or express reasoning, accepted the submission) that if the Supreme Court decided to remit a decision of a former Tribunal to QCAT, while QCAT only had the functions of the former Tribunal (such as the Anti-Discrimination Tribunal) and could only make decisions which the former Tribunal could have made (by reason of s 260(4) of the QCAT Act), QCAT, when doing so would be exercising QCAT’s jurisdiction under the QCAT Act.
Accordingly, the issue was not whether the Anti-Discrimination Tribunal would have impermissibly exercised federal jurisdiction by hearing and determining the complaints of vilification against Mr Owen, but whether QCAT would impermissibly exercise federal jurisdiction by hearing and determining those complaints, made under the Anti-Discrimination Act 1991, and heard in and by QCAT.
That judgment records how counsel for Mr Owen, and counsel for Ms Menzies and Ms Bruce, sought to amend the case stated to rephrase questions 1 and 2 and ask for rulings on the same questions, but naming QCAT and the QCAT Act, in a redrafted question 1 and question 2.
McMurdo P described how counsel for the Queensland Attorney-General did not support the proposed amendments of the case stated, arguing that it was sufficient for the Court of Appeal to consider three issues.[5] The first was whether Chapter III of the Constitution prohibited QCAT from hearing and determining the complaint against Mr Owen under s 124A of the Anti-Discrimination Act 1991. The second was whether that section infringed the implied constitutional freedom of political communication. The third was whether a bisexual person could have standing under s 134(1)(a) of the Anti-Discrimination Act 1991 to complain about vilification on the grounds of homosexuality. The learned President determined that it was sufficient to address those questions, identified by the Attorney-General, because those three issues adequately encompassed all of the issues intended to be raised in the case stated.
[5]Owen v Menzies & Ors at [36].
All three members of the Court of Appeal (de Jersey CJ, McMurdo P and Muir JA) concurred in the orders of the Court, answering the case stated. Those answers were that it was unnecessary to decide questions 1 and 2;[6] ‘No’ in answer to question 3; and ‘It is unnecessary to read down s 124A in order to comply with the implied protections of freedom of political communication provided by the Commonwealth Constitution’, in answer to question 4. In answer to question 5, the Court concurred in holding that:
Depending on the circumstances, a bisexual person may have standing under s 134(1)(a) of the Anti-Discrimination Act to complain about vilification on the ground of homosexuality.
[6]Ibid [6] per de Jersey CJ; [91], [92] per McMurdo P; [159] per Muir JA.
Relevantly, in his reasons, the Chief Justice wrote:
[7]In these reasons, I address the question whether QCAT is a court of a State within the purview of Chapter III of the Commonwealth Constitution. In a sense this is a non-issue. If QCAT is such a court, it may exercise federal jurisdiction, including determining the constitutional validity of s 124A of the Anti-Discrimination Act. But as explained by Muir JA, if not, it may as a tribunal exercise State jurisdiction. In doing so, it would not be necessary for QCAT to determine the constitutional issue. That is because this court is determining that issue, and the result of that determination is that there is no constitutional impediment to QCAT’s determining the applications before it, applying s 124A to its full effect, as QCAT would proceed to do.
[8] Nevertheless, since the question whether QCAT is a court featured so prominently and extensively in the submissions made to this court, the issue warrants comprehensive exposition in this judgment.
The learned Chief Justice then considered the arguments as to whether QCAT was a court of a State within the meaning of Chapter III of the Constitution.[7] In paragraph [15] of those reasons, his Honour listed by number 10 arguments advanced by counsel for the applicant (the present Respondent), described by the Chief Justice in these terms:
… Counsel for the applicant submitted that a number of features combined to “sap” QCAT of the independence necessary for it to be characterised as a Court.
[7]Ibid [9]-[20].
Point 5 listed by the Chief Justice in his reasons included that:
QCAT can not enforce its orders. Sections 131 and 132 provide for enforcement by filing the Tribunal’s order in the Registry of ‘a Court of competent jurisdiction’, where upon the Tribunal’s decision is taken to be an order of the Court in which it is filed and may be enforced accordingly.
The Chief Justice recorded in his reasons that:
Counsel separately submitted that this provision for registration in the Supreme Court was apt to impair the institutional integrity of that court, contrary to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The submission is answered by a recognition that QCAT is obliged to act independently and impartially, that is, judicially. The registration in the Supreme Court of a decision made in consequence of such a process could not imperil the perception or the reality that the Supreme Court exhibits institutional integrity.
The Chief Justice also recorded, as to point 6 of the submissions by the (then) Applicant’s counsel, that:
The President, the Deputy President, senior members and ordinary members of the Tribunal ‘serve relatively short terms in office meaning that they do not enjoy security of tenure in office’, raising a perception they may need to persuade the executive government that they should be reappointed at the conclusion of their terms.
His Honour went on:
The appointment of judicial officers for fixed terms does not deny their court that character. In Forge, above, at [13] Gleeson CJ referred to the reference by Le Dain J in Valente v The Queen [1985] 2 SCR 673, 698 to ‘tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner’. Other matters aside, the availability of judicial review in relation to the process of removal under the QCAT legislation ensures that protection, should it become necessary.
The Chief Justice concluded, at [20], that:
Ultimately there is the assurance that this Tribunal is to apply the law, and to do so in the manner in which courts traditionally operate, that is, independently and impartially. That is enough to justify calling this Tribunal a “court of the State” within the meaning of the Constitution: none of the additional features tabulated for the applicant, nor their combination, excludes that conclusion.
McMurdo P considered the issue whether QCAT was a court of a State from paragraphs [43] to [52] of her judgment, and commenced that consideration with the explanation that because the Anti-Discrimination Tribunal’s functions ‘have been subsumed by QCAT, it is only QCAT’s authority to exercise federal jurisdiction which is now relevant’.
McMurdo P concluded that, for the reasons given by her Honour, ‘as well as those of the Chief Justice, I consider QCAT is a court of a State for the purposes of s 77(iii), albeit one of summary jurisdiction’.[8]
[8]Ibid [52].
The learned President then dealt with an alternative contention advanced by Mr Owen to the Court of Appeal, namely that even if ‘QCAT is a court of a State, it offends the Kable principle and cannot exercise federal jurisdiction’.[9] As to that, the President wrote:
[54]It is true that QCAT does not enforce its own decisions but files them with supporting affidavit material in other State courts for enforcement. There are sound economic reasons for a State legislature to decide not to duplicate existing judicial enforcement procedures when establishing a summary court like QCAT. The enforcement provisions in Pt 7 Div 4 (ss 129–132) QCAT Act do not amount to a mere executive requirement on the Queensland Supreme, District or Magistrates Courts to enforce QCAT decisions. The use of the word “may” throughout those provisions shows that the Supreme, District and Magistrates Courts could refuse to enforce a decision of QCAT in appropriate circumstances, for example, where the decision was obtained by fraud. QCAT is independent and impartial. In terms of the International Covenant on Civil and Political Rights Art 14(1), a litigant like Mr Owen against whom a complaint under s 124A is brought, is entitled under the QCAT Act to “a fair and public hearing by a competent, independent and impartial tribunal established by law”. QCAT’s independence and impartiality is safeguarded by the appellate and supervisory jurisdiction of the Supreme Court. As a court of a State under s 77(iii), QCAT is subject to the Kable principle. But the fact that QCAT does not enforce its own decisions, which have been made independently, impartially and fairly and are subject to the appellate and supervisory jurisdiction of the Supreme Court, but instead files them with supporting material in other courts for their consideration for enforcement (QCATAct ss 129 – 132) does not interfere with its institutional independence so as to infringe the Kable principle.
[9]Ibid [53].
The President concluded:
[61]It follows that in my view QCAT is a court of a State under s 77(iii) and, by way of s 39(2) Judiciary Act, has the power both to hear and determine whether s 124A offended the Constitution and the complaint against Mr Owen remitted to it under the transitional provisions of the QCAT Act.
Muir JA began his reasons for decision by describing 5 issues to be determined by the Court of Appeal. The first was whether QCAT was a ‘court’ within the meaning of Chapter III of the Constitution, and the second was if QCAT was not a ‘court’ within the meaning of Chapter III, whether it had jurisdiction to hear and determine matters within its State invested jurisdiction notwithstanding that a party contended that QCAT lacked jurisdiction because of a matter or matters arising under the Constitution or involving its interpretation. The third was whether the stating of a case for the opinion of the Court of Appeal would involve QCAT in an impermissible exercise of federal jurisdiction, and the fourth and fifth questions concerned whether or not s 124A of the Anti-Discrimination Act 1991 infringed the implied freedom of political communication (in the Constitution) and was thereby rendered invalid, and whether a bisexual person might have standing under s 134(a) of the Anti-Discrimination Act 1991 to complain about vilification on the grounds of homosexuality.
Muir JA relevantly wrote as follows:
[103]The second issue, of undoubted interest though it is, does not arise for consideration if QCAT is a Ch III court. In my opinion, for the reasons given by the Chief Justice, it is. But even if QCAT had been found not to be a Ch III court, the question of QCAT’s jurisdiction to deal with the issue under consideration would still not arise for the reasons stated below.
The learned Judge then quoted two submissions made by the counsel for the Attorney-General. The first was that:
If QCAT was not a Ch III Court and unable to determine constitutional questions in the exercise of its state jurisdiction, the stating of the case to the Supreme Court had the effect that the Supreme Court and not QCAT would be exercising the judicial power of the Commonwealth;
and the second:
Even if QCAT is a tribunal and not a court, it, like the Anti-Discrimination Tribunal, has not only the right but the obligation to consider and reach an opinion on the constitutional question.
Regarding the first submission of the Attorney-General, Muir JA wrote:
[133] At the time the case was stated by QCAT, jurisdiction to determine the constitutional questions was already vested in the Supreme Court by the Judiciary Act. The stating of the case was merely the mechanism which enlivened the power of the Supreme Court to determine issues within its jurisdiction. Nor did the stating of the case by QCAT involve a purported exercise of jurisdiction in respect of the constitutional issue. QCAT attempted no adjudication or determination of the constitutional question and there was no grant to the Tribunal of an authority to adjudicate in respect of the constitutional questions.
[134] This Court’s determination of the constitutional questions will not, or need not, become a finding or determination of QCAT. It will be required to act on it, just as it would have acted on its own appreciation of the merits of the questions had it not stated a case to this Court.
His Honour continued:
[137] In determining whether QCAT was purporting to exercise the judicial power of the Commonwealth in stating a case, or whether it would be purporting to do so by arriving at its decision conformably with this Court’s findings, regard should be had to matters of substance rather than form. In substance, and indeed in fact, any adjudication or determination of the constitutional question will not have been undertaken by QCAT.
Muir JA then turned to the question whether the provisions of s 131 of the QCAT Act, deeming a final decision of QCAT to be an order of the Court in which it was registered, resulted in QCAT’s purporting to exercise federal judicial power when the order was registered. His Honour concluded that:
[139]… If this Court determines that the constitutional point lacks substance, there will not be any exercise of federal jurisdiction by QCAT. It will merely be determining the state issue before it on the basis of this Court’s ruling on the constitutional issue. As has been explained, the ruling on the constitutional issue will be binding on the parties, not because of any determination or order of QCAT, but because of this Court’s decision.
Muir JA also referred to the point made by the Chief Justice that QCAT is bound by the rules of natural justice, and reasons must be given for its decisions. He added that:
[146]There is nothing in s 131 and s 132 of the QCAT Act which is “at odds with the fundamentals of the judicial process” and, as the Chief Justice’s reasons show, the registration in the Supreme Court of an order under those sections “could not imperil the perception or the reality that the Supreme Court exhibits institutional integrity”. Nor does a consideration of s 131 and s 132 of the QCAT Act lead “to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law”.
A careful reading of the reasons for decision in Owen v Menzies & Ors reveals that the Judges constituting that Court did consider, with care, whether QCAT is a court of a State for the purposes of s 77 of the Constitution, and whether ss 131 and 132 of the QCAT Act are beyond the legislative competence of the Parliament of Queensland in that they deprive the Supreme Court of its decisional independence in deciding what is, or is not, an order of the Supreme Court.
Nevertheless, counsel for Mr Owen made a written submission to this Tribunal arguing that those two issues, while described in that submission as being dealt with in ‘some detail’ in that judgment, had not been decided by that Court. Counsel asked for directions from the Tribunal for the filing and serving of written submissions on the two contentions so that ‘this issue can be disposed of by this Tribunal’, said by the written submissions to be a necessary precondition of hearing the complaints against Mr Owen. That written submission contended that if the two described submissions (said not to have been decided by the Court of Appeal) were correct, then the Tribunal should permanently stay the hearing of the complaint.
Counsel for Mr Owen had made submissions in February 2013 to the Judges constituting the High Court (on an unsuccessful application for special leave to appeal from the decision in Owen v Menzies & Ors) about the effect of ss 131 and 132 of the QCAT Act, with the argument being made that ‘the QCAT functions have been outsourced to the Supreme Court to enforce QCAT’s decisions’.[10]
[10]See Owen v Menzies & Ors [2013] HCATrans 18 (15 February 2013).
Special leave was refused, with French CJ stating:
The facts of this case, in our opinion, do not engage the constitutional principle which is asserted in such a way as to offer any prospects of ultimate success arising from its application. Other issues which the applicant seeks to agitate do not arise in matter. Special leave will be refused with costs.[11]
[11]Ibid.
On 25 March 2013, as a result of the one-page written submission by counsel for Mr Owen contending that the 2 issues identified in paragraph [2] herein had not been decided by the Court of Appeal, QCAT made orders about the filing of arguments. Mr Owen was directed to file submissions on whether or not QCAT was a court of a State for the purposes of s 77 of the Constitution, and as to whether ss 131 and 132 of the QCAT Act were beyond the legislative competence of the Parliament of Queensland, by 29 April 2013. Ms Menzies was ordered to file submissions on the procedure that the Tribunal should follow in hearing her complaint, including whether evidence given before the former Anti-Discrimination Tribunal was to be taken to be the evidence given in the proceeding at QCAT, those submissions also to be delivered by 29 April 2013. Those parties were given leave to file responses by 13 May 2013, to the submissions ordered by the other party. Both parties have filed those ordered submissions.
On Mr Owen’s behalf the written submission contended that QCAT was not a court of a State for the purpose of s 77(iii) of the Constitution, and ‘therefore, s 131 and 132 of the QCAT Act are, in the current form, beyond the legislative competence of the Parliament of Queensland.’[12]
[12]Ronald Owen, ‘Respondent’s Outline of Submissions’ Submissions in Menzies & Anor v Owen, ADC009-06, 29 April 2013, [2].
Those written submissions ‘accepted that this Tribunal is entitled to both have regard to the reasons of each of the justices who constituted the Court of Appeal, and also place weight upon the conclusions reached by the justices’.[13] The Respondent’s written submission contended that the decision of the Court of Appeal did not bind this Tribunal because:
[13]Ibid [5].
(a) the Court of Appeal did not consider the substance and form of the Respondent’s constitutional submission identified in this outline of submissions in paragraph [2];
(b) in answering the six [sic] questions in the case stated, the Court of Appeal did not give leave to amend the case stated and answer [sic] the additional questions that the Applicants and the Respondent sought to have the Court of Appeal answer which would have expressly dealt with the current argument advanced by the Respondent in this outline; and
(c) two justices of the Court (the Chief Justice and Muir JA) opined that the issue as to whether the Tribunal is a “court of a State” for the purposes of section 77(iii) of the Constitution was a “non-issue”.[14] (footnotes omitted)
[14]Ibid [6].
The contention that the Court of Appeal had not considered the Respondent’s constitutional submission identified in the outline, refers to paragraph [2] of that written submission, which reads as follows:
[T]he Respondent submits that this Tribunal… is not a ‘court of a State’, for the purposes of s 77(iii) of the Constitution, and therefore, ss 131 and 132 of the QCAT Act are, in their current form, beyond the legislative competence of the Parliament of Queensland.
As to that, the citations from those reasons in this matter demonstrate that the Court of Appeal did consider the substance and form of those submissions, and disagreed with them. Extensive reasons were given.
Further, in answering the 5 questions in the case stated, the Court of Appeal, particularly in the judgment of McMurdo P, identified all critical issues, and found it unnecessary to amend the case stated as sought by the Applicants and Respondent. The reasons given by the learned Judges did expressly deal with the arguments advanced now by the Respondent.
Further, while two of the Judges did remark that whether or not this Tribunal is a court of a State was a ‘non-issue’, that was only because those Judges considered the question whether or not a Tribunal which was not a court of a State (which is what the Respondent contended to the Court of Appeal about this Tribunal) could, as a Tribunal, exercise State jurisdiction, and held there is no constitutional impediment to this Tribunal (if not a court of this State) determining the application before it, applying s 124A to its full effect, as it is obliged to do.
Accordingly, to argue that the Chief Justice and Muir JA regarded it as a non-issue as to whether this Tribunal was a court of a State, and that the Respondent is entitled to have this Tribunal rule to the contrary, ignores both the context in which both Judges referred to this non-issue and the extensive reasons given by the Judges of the Court of Appeal as to why this Tribunal is a court of a State as that term is used in s 77(iii) of the Constitution.
In any event, the Respondent is, with respect, arguing in the wrong Tribunal. The Court of Appeal has held that, irrespective of whether this Tribunal is a court of a State within the meaning of Chapter III of the Constitution, it has all the necessary jurisdiction to hear the complaint against Mr Owen for breach of the Anti-Discrimination Act 1991, because the Court of Appeal has already held that s 124A of that Act is not inconsistent with the implied protection of freedom of political communication provided by the Constitution, and that it is unnecessary to read down that section to comply with the implied protections of freedom of political communication provided by the Constitution.
Mr Owen has been refused special leave to appeal from that decision of the Court of Appeal, on an issue described by Hayne J of the High Court, as having been ‘determined by the Supreme Court’ and not by QCAT. It follows that if QCAT was not a court of a State, it is nevertheless obliged to hear the application brought against Mr Owen.
Further, regard should be had to the observations in the joint judgment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ (with whom Gageler J agreed, in a separate judgment) in State of NSW v Kable[15]:
[A]ll courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction… a decision that a court does, or does not, have authority to decide a particular claim will be subject to review and correction.[16]
[15][2013] HCA 26.
[16]Ibid [31].
That portion of the joint judgment supports the second contention of the Attorney-General, quoted by Muir JA in his reasons in Owen v Menzies & Ors, and repeated in [28] herein.
The Respondent’s written submission concludes as follows, on this point:
At the end of this outline, the Respondent indicates that he wishes to have the matter listed for oral hearing on these points, and it is at that oral hearing that counsel for the Respondent will identify with greater particularity those aspects of the reasoning and the decision of, particularly, the de Jersey CJ in Owen v Menzies that demonstrates that His Honour has not, considered the totality of the matter that the Respondent submitted to the Court of Appeal, why His Honour the Chief Justice’s reasoning is, with respect to his Honour, deficient.[17]
[17]Ronald Owen, ‘Respondent’s Outline of Submissions’ Submissions in Menzies & Anor v Owen, ADC009-06, 29 April 2013, [45].
That final submission identifies this application as a desire in the Respondent to reargue the matters already argued and decided by the Court of Appeal. Those arguments are, with respect, being presented to the wrong Court. The written argument demonstrates only that the 10 points summarised by the Chief Justice, at paragraph [15] of his reasons, were repeated at some length in that written argument, emboldened by the submission that the learned Chief Justice ‘did not grasp the nature of the Respondent’s submission’.[18] There was no complaint in either the Respondent’s written submission, or in his counsel’s oral argument, that the Chief Justice had either misstated, or omitted, any of the Respondent’s arguments.
[18]Ibid [23].
In his oral argument counsel for the Respondent (in the application for a stay) contended, accurately enough, that the High Court had decided only that special leave should be refused on the issue of the constitutional validity of the Anti-Discrimination Act 1991, the point decided by the Court of Appeal. Counsel referred this Tribunal to the transcript of the application for special leave, and contended that a careful study of it would reveal that the questions asked by all members of the High Court bench (French CJ, Hayne J, and Crennan J) show that their Honours were concerned with the issue of whether or not to grant special leave to appeal against the conclusion by the Court of Appeal that s 124A of the Anti-Discrimination Act 1991 was valid, and that it was unnecessary to read down the provisions of that section (to comply with the implied protections of freedom of political communication provided by the Constitution). Counsel contended that accordingly the High Court should be understood as having not considered whether QCAT was a court of the State, as described in Chapter III of the Constitution and, as already described, the Respondent argued that the Court of Appeal should not be understood as having decided or ruled upon that issue. That submission essentially rested upon the submission that, because the Court of Appeal had not granted the Respondent leave to amend the case stated to it, the judgments in that Court were merely expressions of opinion, and not binding.
In oral argument the Respondent advanced one contention which was said to be a new one, not made to either the Court of Appeal or the High Court on the special leave application, and that was that the QCAT Act provisions impose a duty to inquire upon QCAT members, and that this is not the function of a Court. The oral submissions referred to ss 3, 4, 28 and 29 of the QCAT Act, and to an extramural publication of the President of this Tribunal.[19]
[19]Counsel for the respondent had relied on other extramural statements by the President of QCAT when presenting his arguments to the Court of Appeal in Owen v Menzies & Ors [2012] QCA 170.
But ss 3, 4, 28 and 29 of the QCAT Act do not do more than require QCAT members to be active, and not passive; to pause and ask themselves whether all the obviously relevant material is at hand, and if not, whether it can fairly be obtained. The QCAT Act provisions oblige Tribunal members to ensure QCAT has all relevant material, but only – in the words of s 28 of the QCAT Act – ‘so far as it practicable’. Section 29 requires QCAT to aid parties, but only to the extent of taking ‘reasonable steps’. The QCAT Act provisions do not require QCAT to assume responsibility for, or take control of, a party’s application. There is no overarching duty to inquire. To quote Keane CJ (as his Honour then was) in Minister for Immigration and Citizenship v SZNVW[20], a Tribunal is not obliged to take upon itself the role of ensuring that all possible lines of argument which might be available to a party in any given case are pursued to the party’s best advantage.[21]
[20][2010] 183 FCR 575.
[21]Ibid 586.
Recognition of a limited duty to inquire does not remove or diminish the statutory obligation that QCAT be independent[22] and act fairly.[23] All members of QCAT are still required to be independent and impartial. After all, the Supreme Court of this State, in two decisions, has followed and applied decisions elsewhere holding that a duty to inquire does not permit partiality.
[22]QCAT Act s 3(a).
[23]QCAT Act s 28. .
In Carruthers v Connolly[24] Thomas J (as his Honour then was) wrote early in that judgment that:
[24][1998] 1 Qd R 339.
The principal question is whether either Commissioner is disqualified because of actual or apprehended bias touching matters which they are required to investigate and report.[25]
[25]Ibid 342.
His Honour quoted from Webb v R[26] as follows:
[26](1994) 181 CLR 41.
It is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice.[27]
[27]Ibid 50-52, 68.
His Honour wrote:
This objective is applicable not only in the proceedings of courts but also in various quasi judicial tribunals, administrative tribunals, and commissions of inquiry. The application of such principles to commissions of inquiry may be seen in such cases as Mahon v Air New Zealand….[28] (footnote omitted)
He went on:
[T]he expectation that the person exercising the power will bring an impartial and unprejudiced mind to the resolution of the question entrusted to that person is not to be diluted.[29]
[28][1998] 1 Qd R 339 at 371.
[29]Ibid.
In that matter the then Attorney-General for the State was a respondent and there was no appeal launched against the decision. Likewise, in Keating v Morrisand Ors; Leck v Morris & Ors[30] the then Attorney-General was a respondent, who did not appeal. Moynihan SJA wrote:
The principal issue in these applications is whether the proceedings of [the Inquiry] are tainted by apparent bias.[31]
His Honour relied on a description of the test for apparent bias derived from the decision of the High Court in Ebner v Official Trustee in Bankruptcy[32], to the effect that ‘if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to [the issues]’[33] then apprehended bias was made out.
[30][2005] QSC 243.
[31]Ibid [1].
[32](2000) 205 CLR 337.
[33]Ibid 344 per Gleeson CJ, McHugh, Gummow and Hayne JJ; Keating v Morrisand Ors; Leck v Morris & Ors [2005] QSC 243 at [38].
His Honour went on at [39]:
[I]t was accepted that these considerations applied to the Inquiry as adjusted to reflect the differences between litigation between parties, on issues they determined, conducted according to rules of procedure on the one hand, and a body with the function to inquire and report and which is freed from the constraints of procedure and evidence rules which apply to courts on the other. (emphasis in original)
It follows that recognition that QCAT has a limited duty to inquire is not inconsistent with insisting on adherence to the statutory command in s 28(2) of the QCAT Act that the Tribunal ‘must act fairly and according to the substantial merits of the case’ in all proceedings. So, to recognise a duty in QCAT to inquire does not establish any basis for a contention that QCAT might be partial, or might ignore the requirements of ss 28(2) and 29, or any other provision of the QCAT Act.
The Respondent’s oral submissions also included criticism of the brevity of the reasoning of the Chief Justice, in point number 5 of paragraph [15] of his Honour’s judgment, dealing with the second of the Respondent’s contentions.[34] But the Respondent’s counsel did not suggest what else the Chief Justice might have said. Those reasons, with respect, make clear the difference between the position of a litigant in QCAT and the position in Kable (No 1).
[34]Transcript of Proceedings, Menzies & Anor v Owen (QCAT, ADC009-13, Justice Alan Wilson, Senior Member Endicott, Member Jerrard QC, 30 July 2013) 9.
While Mr Kable was serving a term of imprisonment of five years and four months for manslaughter he had been charged with 17 offences arising from sending threatening letters through the mail. The High Court judgments do not reveal the contents of those letters, but the Community Protection Act 1994 (NSW) required only that the Supreme Court of New South Wales, which heard the application to imprison Mr Kable, be satisfied on ‘reasonable grounds’ that Gregory Wayne Kable (named in the legislation) was more likely than not to commit an act of serious violence, and that it was appropriate for the protection of a particular person or persons or the community generally that he be held in custody. The available orders included custody for up to 6 months. One learned Judge issued such an order, but another later declined to extend it.
An appeal was taken to the New South Wales Court of Appeal by Mr Kable in respect of the first order, and then to the High Court, where a majority of the learned Judges held that:
…the [Community Protection Act 1994 (NSW)] was invalid because it required the Supreme Court to exercise judicial power and act institutionally as a court, but to perform a task that was inconsistent with the maintenance (which Ch III of the Constitution requires) of the Supreme Court’s institutional integrity.[35]
[35]State of NSW v Kable [2013] HCA 26 at [17].
That majority in Kable (No 1) held that the Community Protection Act 1994 (NSW) had invested the Supreme Court of New South Wales with a function incompatible with the exercise of federal judicial power. That described situation can be contrasted – as the Chief Justice of Queensland did in his judgment in Owen v Menzies & Ors – with the position in QCAT.The Chief Justice repeated the Respondent’s submissions that ss 131 and 132, providing for enforcement of QCAT’s orders by filing those ‘in the Registry of a court of competent jurisdiction’, was apt to infer the institutional integrity of that Court, contrary to Kable (No 1). He then wrote as earlier described in [19] herein.
With respect to the Respondent’s submissions, that was all that the learned Chief Justice needed to say. He was entitled to assume that a reader would be familiar with, and would comprehend, the circumstances of the decision in Kable (No 1), and the reasons that the argument in that case resulted in the judgment for Mr Kable. The process described in the judgment in the High Court can be compared – although detail is unnecessary – with the statutory provisions of the QCAT Act, already referred to, requiring independence, impartiality, fairness and, inter alia, a hearing on the merits.
The oral argument also criticised the reasoning of McMurdo P, and the references (quoted herein) in paragraphs [54] and [58] of the President’s judgment in Owen v Menzies & Ors; contending that the President had misconstrued the word ‘may’ in ss 131 and 132 of the QCAT Act.[36] Those sections relevantly provide that a person may enforce a final decision of QCAT, by filing in the Registry of the appropriate court (Magistrates, District or Supreme) a copy of the decision certified to be a true copy by the Principal Registrar of QCAT, and an affidavit as to amounts unpaid or non compliance with the decision. Both sections provide that:
On filing the documents… in the Registry of the relevant Court, the final decision is taken to be an order of the Court and may be enforced accordingly.
[36]Transcript of Proceedings, Menzies & Anor v Owen (QCAT, ADC009-13, Justice Alan Wilson, Senior Member Endicott, Member Jerrard QC, 30 July 2013) 23-24.
Counsel for the Respondent argued for a different construction of those sections, but the one settled upon by McMurdo P binds QCAT and its members, and they are authority for the proposition that the enforcement provisions in Chapter 2, Part 7, Division 4 of the QCAT Act do not amount to a mere executive requirement on the Queensland Supreme, District or Magistrates Courts to enforce QCAT decisions. That construction of those sections formed an integral part of the reasoning of the learned President.
The oral submissions also referred to passages in the judgments in Forge v ASIC[37] and North Australian Aboriginal Legal Aid Service Inc v Bradley and Anor[38], both of which cases are referred to, and considered in, the judgments in the Court of Appeal in Owen v Menzies & Ors.Nothing in those judgments leads to a view that any of the learned Judges had ignored or overlooked any portion of the reasoning in those cases.
[37](2006) 228 CLR 45.
[38](2004) 218 CLR 146.
The oral submissions also referred to the contents of an extramural address given by Chief Justice French on 21 January 2013 to a conference of Supreme and Federal Court Judges, entitled ‘Essential and Defining Characteristics of Courts in an Age of Institutional Change’. That address (delivered 3 weeks before the High Court heard and refused the special leave application in Owen v Menzies & Ors) read as follows, at page 3:
The want of a complete theory of what is a court has lead to different views about whether certain tribunals created by State law are courts of the States for federal constitutional purposes. Tribunals which have been the subject of such consideration are the Anti-Discrimination Board of Tasmania, the Administrative Decisions Tribunal of New South Wales and the Queensland Civil and Administrative Tribunal. (Footnotes omitted.)
A footnoted reference to QCAT by the Chief Justice reads:
Owen v Menzies (2012) 293 ALR 571 which held that the Queensland Civil and Administrative Tribunal was a court for federal constitutional purposes.
Counsel for Mr Owen contended – of necessity – that the footnote was an error: i.e. that both the Chief Justice of the High Court, and the legal reporter for Butterworths, were in error; but, the report of the case in the ALR does state that the Queensland Court of Appeal so held. The reference to that address by the Chief Justice of the High Court does not help the Respondent.
The written submissions on behalf of Ms Menzies and Ms Bruce contend that ‘the respondent’s outline of submissions essentially repeats all the matters argued on his behalf on these issues in the Court of Appeal’,[39] and that submission is accurate. What is less accurate is the submission from Ms Menzies and Ms Bruce that the submission from Mr Owen is based entirely on the first of his 2 contentions, namely that QCAT is not a court of a State, whereas those submissions did refer (in paragraph [46] – [61] of those written submissions) to what was contended to be the effect of ss 131 and 132 of the QCAT Act. The Applicants’ submissions were that this Tribunal should adopt the conclusion ‘expressed by each judge in the Court of Appeal, that QCAT is a “court of a State” for the purposes of Chapter 3 of the Constitution, and proceed to hear the complaint.’[40] Those Applicants also argued that QCAT need not provide written reasons because the Court of Appeal has considered the issues specifically in relation to this Tribunal and this very case, and has clearly stated an opinion that there is no impediment to this Tribunal proceeding to hear and determine the complaint brought against Mr Owen,[41] and that is the appropriate course.
[39]Richelle Menzies and Rhonda Bruce, ‘Submissions by Richelle Menzies and Rhonda Bruce in response to Ron Owen’s submission about jurisdiction’ Submissions in Menzies & Anor v Owen, ADC011-06, 13 May 2013, [3].
[40]Ibid [5].
[41]Ibid.
The Respondent’s essential submission was that QCAT is not a court of a State and accordingly its decisions cannot be registered in the Supreme, District or Magistrates Courts without offending the Kable principle. As these matters, so the Respondent argues, have not been determined conclusively by a superior court, it is open to this Tribunal to stay the applications as requested, or refer the matter to the Court of Appeal, under s 118 of the QCAT Act.
But the issues have been determined by the Court of Appeal, and QCAT is obliged to accept that and to apply the QCAT Act and other legislation, as interpreted by the Court of Appeal. The flaw in the Respondent’s argument is that it confuses the matter of the Court of Appeal not granting leave to the Respondent to amend the questions referred to that Court, with the issues the Court of Appeal decided. The ratio of the Court of Appeal decision in Owen v Menzies & Ors is not limited to, or defined by, the applications brought to that Court. That is to be determined from the judgment in that Court.
In the result, and for the reasons we have set out at considerable length, we are not persuaded that a stay order should be made.
Before turning, however, to the future conduct of the matter there was another issue on which the parties made written submissions: the Applicants urged this Tribunal to treat the application before QCAT as an ‘existing Tribunal proceeding that is not a pending proceeding’, within the meaning of s 257 of the QCAT Act,[42] and argued that the Tribunal should be constituted by the person who constituted the former Tribunal (the Anti-Discrimination Tribunal).[43] The Applicants also contend that the evidence taken by the former Tribunal should be the evidence received by this Tribunal in hearing and determining the matter.[44]
[42]Richelle Menzies and Rhonda Bruce, ‘Submissions by Richelle Menzies and Rhonda Bruce on procedure for hearing complaint’ Submissions in Menzies & Anor v Owen, ADC009-06 & ADC011-06, 29 April 2013, [9].
[43]Ibid [15].
[44]Ibid [16].
The Respondent made a more convincing written submission, referring to the definition of ‘existing Tribunal proceeding’ in s 244 of the QCAT Act, which defines an existing Tribunal proceeding to mean a proceeding that:
a) was started before a former tribunal under a former Act before the commencement; and
b) at the commencement, has not been withdrawn, dismissed, struck out or otherwise disposed of under the former Act.
The reference to the ‘commencement’ and the ‘former tribunal’ are respectively to the commencement date of the QCAT Act (1 December 2009), and to the Anti-Discrimination Tribunal. As counsel for the Applicants readily conceded, it is difficult to apply the provisions of s 257 to this proceeding in QCAT because the member who constituted the former Tribunal made its last orders in the matter on 27 November 2008 and, accordingly – more than a year before QCAT commenced and not, then, something readily described as ‘immediately’ (the word used in s 257(4)) before the commencement of the QCAT Act. For that reason alone s 257 is not readily applicable.
The Respondent also makes a point that that member had ‘otherwise disposed of‘ the proceeding in the Anti-Discrimination Tribunal because the Member had heard and determined the matter, made findings of fact, and made punitive orders against the Respondent. That Member was therefore functus officio in terms of the decision-making task.
In any event, s 257(6) provides that:
If, for any reason, a person who constituted the former tribunal is unable to perform functions in the proceeding, the president must reconstitute QCAT by replacing the person with another member.
The Respondent argued that there was a reason the person constituting the former Tribunal was unable to perform functions any further in the proceeding, namely: that the former Member was functus officio with respect to the complaint; and it was improper and inappropriate for that member to determine the complaint again to rehear the same question. The Member had already formed a view of the merits or otherwise of the complaint and there would, therefore, be ground for Mr Owen to have an apprehension of bias in that member. QCAT’s obligation to afford natural justice to the parties means that it is inappropriate to reconstitute this Tribunal with the same person who has previously adjudged the merits of the application, and ruled upon it.
Likewise, the submissions of the Respondent argue that the procedurally fair way to advance this proceeding now is for the complainants to call their evidence against him, and for the Respondent to challenge that evidence, or adduce such evidence as is relevant and available, in his defence. Those submissions contend that all oral evidence adduced by the complainants and Mr Owen should be adduced at the same time, and that it would be inappropriate for either party to rely upon evidence given at the earlier hearing, where there were more complainants and, therefore, the same evidence may not necessarily be adduced in cross examination.
It would be appropriate for the matter to be heard afresh, with the now reduced number of complainants, and not on the basis of merely receiving evidence previously given. This means that the Applicants and Respondent will be obliged to prepare their witnesses for a contested hearing. It is appropriate to give directions now for the filing of affidavits and reply to those and this Tribunal directs:
1. The Applicants are to file and serve their affidavit material in support of their application by 18 October 2013.
2. The Respondent is to file and serve his affidavit material in reply by 15 November 2013; and
3. The Applicants are to file any affidavits in response by 6 December 2013.
4. Thereafter, a directions hearing is to be held at a time and date to be advised by QCAT.
The orders of this Tribunal are that:
1. The application for a stay in this matter and the alternate applications made by the Respondent are dismissed.
2. The orders described already herein for filing of affidavits and a directions hearing are made.
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