Myatt v President of the Australian Human Rights Commission

[2020] HCATrans 173

[2020] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B30 of 2020

B e t w e e n -

CRAIG NOEL MYATT

Plaintiff

and

PRESIDENT OF THE AUSTRALIAN HUMAN RIGHTS COMMISSION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON WEDNESDAY, 21 OCTOBER 2020, AT 10.51 AM

Copyright in the High Court of Australia

HIS HONOUR:   Mr Myatt, can you hear me all right?

MR MYATT:   Yes, your Honour.

HIS HONOUR:   Ms O’Gorman?

MS O’GORMAN:   Yes, I can.  Thank you, your Honour.

MR C.N. MYATT appeared in person.

MS K.A. O’GORMAN:   May it please the Court, I appear on behalf for the Attorney‑General of the Commonwealth intervening as amicus curiae.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Myatt, I have had the opportunity now of re‑reading your initial written submissions in‑chief and also reading the Attorney’s submissions and your written reply, and your letter to the Registry subsequent to the reply.  I gather from the latter that there are further matters which you wish to submit in support of your case, and that is the point of this morning’s hearing.

MR MYATT:   All right, then, your Honour.  I did ask the Registry, just generally speaking, what that form would take, but I suppose the answer to that is that I would make oral submissions now.  Can I just clarify that ‑ ‑ ‑

HIS HONOUR:   Yes, Mr Myatt.  That is exactly what is intended, that you should have the opportunity to make oral submissions.

MR MYATT:   May I just ask also what sort of length would be expected – if I went for sort of 5 or 10 minutes, would that be acceptable?

HIS HONOUR:   Yes, of course.

MR MYATT:   All right.  Perhaps I will just retouch on the main issues in the main proceeding.  So just to recap the history of this matter.  It was originally really just something that I wrote to the United Nations about as a question of, I thought, injustice generally with respect to some of the things that happened in the Queensland justice system.  So, as it happened, I was – I ultimately made that – filed that communication with the United Nations in 2017.

As you can see from the back – the back history obviously related to first the preparation of that document and then filing of that document.  Subsequently, I was harassed repeatedly by people in the Queensland justice system.  So that is the basis for the proceeding.

From the perspective of what I sent to the United Nations it does have the strong connections with what I was saying in my letter and also in reply with respect to – whether or not “recusal” is the right word – perhaps it is not the right word, but I will use that word “recusal” because it relates to general fairness with respect to the oath and the justice system generally.

So, the question for me to the United Nations was, with respect, to the discretion about having a justice or a system where there was – basically adjudicators who were, importantly, impartial but were at the same time swearing allegiance to, effectively, a party, something of course which I think many people would dispute – that is actually the situation, but that is the literal sort of interpretation of the rule.  So that is the basis of – the same basis for this submission, I suppose, your Honour.

So, perhaps I could just – it is quite a contentious issue, I think, and when I say that I mean in a sense that – well, obviously someone took extreme offence to me doing this and made a threat, I presume, from an organisation such as a QPS organisation – I do not know who it was, but – you know, I am just a rational person so when people do this kind of thing I mean I just register it as a fact.  I was not sort of seeing it as something that did not happen, but I mean other people did think that it was just something that I had imagined.  That sort of - those two parts of it are very strong axes of sort of administrative activity. 

So there is this kind of thing where there is a complaint on my part and then there is this kind of troubling “Well, sorry, we just can’t accept that sort of thing”, and that pretty much – I think if you look at the history of it in the United Nations complaint that is essentially what we are talking about here.  We are talking about a person who has just been told, “Look, I’m sorry, I just can’t accept that you’re going to be victimised because of that”. 

So, coming back to that question – this question about, I suppose, recusal and why I am asking about it, it was put to the United Nations to some degree that that was a human rights violation.  Sorry – I will try and clarify what I was saying then.  So, specifically, the question was not, from my perspective, was the Queen doing the wrong thing or are justices doing the wrong thing or have they broken the law.  The question was really just a question of public policy.

But do we have the public policy right when we put the Queen’s name on it?  Is it a kind of a cheat for the Executive, which allows them to kind of turn up in court and, you know, have their way, which is the way it - really what happened to me – I mean I was just run through the system because I was a disabled male who made a very implausible complaint about a woman.  That was what happened and that is why I wrote to the United Nations.

So, in a sense, it is the same question – is it possible now to have a conversation about this without thinking me just incapable of rational thought, I suppose, is the question.  So that is the basis of the – I will be more specific in a minute, but perhaps I just ask you, your Honour, whether that is something that you can – do you want me to expand on a particular aspect of that?  Is that explicable, or ‑ ‑ ‑

HIS HONOUR:   Mr Myatt, as I understand the position at the moment, by reason of combining your letter to the Registry with what you have just said, you are applying that I should recuse myself by reason that because of my oath of allegiance to Her Majesty there is a conflict of interest between that oath of allegiance and deciding this matter impartially.  Am I correct?

MR MYATT:   Yes, that is right.  Let me just be a little bit more specific in specifically what that means because it is important.  So when it comes to – can I just have a moment; I am just quickly – I suppose there are two aspects to this from your Honour’s perspective, or the Court’s perspective.  One is an administrative law question which is now is it possible to hear this matter, and the other question is, if it is possible to hear this matter, is it going to be fair? 

I did raise those two points with respect to this in the letter, which – perhaps the second one is more difficult – so the first point is, is it difficult to reconcile the allegiance to the Queen and the duty of fairness to a litigant, or me, in particular, on one hand, so that is the first part of it.  The second part of it is just this question which now is just resounding really…..which is, you know, all of this health material is before the Court.  It is pretty prejudicial.  I do not think I have really had an opportunity to address it.  That was the second part of it.

Those two things go hand in hand, though.  In the sense that I do think it has been a question for me, raising such a political issue as that, people just essentially assume that I am some kind of abnormal actor.  So, that is probably my primary sort of concern, that it is not going to result in a fair hearing.  So that is probably at the bottom of it.  That is where I am at.  I am just concerned the Court cannot see me as just an average person who just wants this resolved, sort of thing. 

So, yes, shall I explain the oath issue – do you want me to – is that enough information for you, your Honour?

HIS HONOUR:   I think it is.  The essence of your complaint or submission is that because a Justice of the Court, upon appointment, takes an oath of allegiance to Her Majesty the Queen, the Justice is in a position where he or she cannot impartially resolve an administrative dispute between a citizen and the Executive Government.

MR MYATT:   Yes, your Honour.  I think that is the essence of what I am saying.  There are some other constructional sort of particular aspects to that which I can go into, but I am ‑ ‑ ‑

HIS HONOUR:   Mr Myatt, it is up to you whether you wish to put further submissions in support or not.

MR MYATT:   I will – yes, your Honour, I will do that.  I think it is probably worth doing it if this is the last opportunity.  It will only take a minute or two.

HIS HONOUR:   Certainly.

MR MYATT:   So let me just very briefly cover what I wanted to cover. The question of competence is a question which goes to essentially section 71 powers. So the oath and the competence or the powers, I suppose, lead to the competence. So once a justice makes the oath, they pick up the section 71 powers, which is really quite a significant power. It is one whole third of, I guess, the sovereign powers. That is a whole branch of government. That is the basis of competence. So competence to hear questions of law with respect to section 75(v)…..of the Constitution.

So where that is then I suppose applied – we have got a situation where if there is a problem with the oath in terms of a justice who cannot fully comply for – obviously this – in this where it is a systemic question, it is not necessarily a personal question it then goes to a question of competence in the sense that well, once there is no oath – or once the oath is no longer a question, then the powers are not in existence, therefore, theoretically, I suppose, is my case, there does have to be a question of competence and that – sorry, let me just develop that slightly.

It goes a little bit further than that here, though. When we talk about this particular matter with this particular defendant, who is effectively the administrator of the ICCPR rules, or the human rights rules in Australia, we are talking about an incorporated human rights treaty that is validly incorporated by section 51 of the Constitution.  We are talking about – that is more – they are weak powers, they are not particularly strong powers over government but they certainly have some effect over, for example, the Queensland Government.

So when we are talking about her decision – or the President’s decision‑making, we are talking about – well, two decisions which - under the ICCPR.  So these become basically integrated into the international law jurisdiction.  The point I am making here is that Article 2 carries with it a presumption that – I will just quickly read that section of Article 2 – so this is Article 2.3 which is in the Australian Human Rights Commission Act under Schedule 2 - Australia undertakes:

(a)      To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy . . . by persons acting in an official capacity;

(b)      To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial . . . authorities . . .  and to develop the possibilities of judicial remedy -

So that is the link here between my arguments which is regarding – this is the argument about competence and why it relates to specifically the President and also with respect to this matter, Article 2.

Now, that is a little complicated but that is basically my argument which is once, as you say, that question becomes – that it becomes febrile in the sense that it is no longer settled, it is a settled sort of thing, there is a question of competence and there is a question, therefore, of Article 2 compliance in terms of having a remedy.  So that is why I would have thought it is compliant to say, “Well, hey, at this point if that can’t be done, if there’s no remedy, then that will be a trigger for that optional protocol”, which is my opportunity to take that to the international jurisdiction.

HIS HONOUR:   I see.  I understand that I think, thank you. 

MR MYATT:   Right.

HIS HONOUR:   Apart from the matters that you have put in support of your application that I recuse myself, is there anything further you wish to say orally in support of your substantive application for judicial review of the determination of the delegate?

MR MYATT:   I did not have an opportunity to talk about the remittal question in great detail.  If there is an opportunity now I would like to say a couple of things about that, if possible.

HIS HONOUR:   Yes.

MR MYATT:   Just give me a moment, your Honour.  I will have a quick look at my notes and I will try to get something that is on hand to do that.

HIS HONOUR:   May I say, Mr Myatt, that I understand as a result of reading your papers and what you have previously said, that your opposition to the matter being remitted to the Federal Court is that you perceive the Federal Court to be a participant and therefore in a position where there would be a conflict of interest if that court were called upon to decide this application.

MR MYATT:   That is correct, your Honour.  That is essentially the argument and I will just make a couple of other minor points with respect to that.  So, I think the test in Ebner then was a question of the source of the unfairness which, as you have identified, is a question of being a part of the facts of the matter and the aspect of the unfairness, I suppose, would then be a question of whether they could be impartial with respect to their involvement or the identification of the Federal Court power so as a human rights – it was a fairly small aspect of my complaint.  I did not think it was – but, nevertheless, it was a real aspect of the complaint.  So that would be the sum total of those questions, or the sum total of those arguments, I think, your Honour, so, yes.

HIS HONOUR:   There is one last matter I wanted to ask you about.  One of your complaints in your letter to the Registry was that you regarded some of the material included in the Attorney’s affidavit as highly prejudicial to the point that it would make it impossible for a fair‑minded judge to deal with your application fairly.  Could you expand on that a little for me, please?

MR MYATT:   Yes, your Honour.  So as to that question, it really is a very tricky balance obviously.  I had to file some material to the Australian Human Rights Commission to evidence what happened to me in that – for example, it was a first‑person account by various people in the health system in Queensland of what they were doing, but perhaps it was an oversight on my part that I had filed all of the material and it did present, I suppose, a picture of me as – which, I think, was the intention of certain – problems with that, I presume, that there was an issue with me and my behaviour.  So that was a prejudicial aspect of it.

The question with respect to fairness was, with respect, to I suppose what might be termed a hearing rule with respect to being able to address the – I guess in a fine‑grained way, that material, because I did not really have an opportunity necessarily to make any further submissions.  That was it, your Honour.

HIS HONOUR:   Very well, thank you.  Ms O’Gorman, I do not suggest that there need be, but is there anything further you wish to say?

MS O’GORMAN:   Can I note one matter, your Honour, which is that at paragraph 1.1 of the Attorney‑General’s response dated 2 October 2020, the Attorney‑General makes a submission in respect of the applicant’s contention concerning apprehended bias of the Federal Court of Australia.

HIS HONOUR:   Yes.

MS O’GORMAN:   The Attorney‑General considers that that submission applies equally to the plaintiff’s more recent contention concerning the necessity for your Honour’s recusal, that is that the plaintiff has not clearly shown there is any fact for grounds of apprehension of bias or any other need for your Honour’s recusal.  That is the only point we would wish to make, your Honour.

HIS HONOUR:   Thanks, Ms O’Gorman.  I take it that does not add anything so far as you are concerned, Mr Myatt?

MR MYATT:   I thought it was made out in terms of those – that two‑step part in Ebner so I could go through it again if required, but I thought that was ‑ ‑ ‑

HIS HONOUR:   No, no, I am well and truly seized of it, thank you.  I am obliged to both of you.  What I propose to do now is to go away and reserve my decision on both the application for recusal, and if I determine that I should recuse myself then I shall and we will have to come back together to work out what is to be done with the matter, or if I decide that I should not, I shall go on then and decide the substantive matter in whole.

I should not take too long, I hope, because I do not have too long, the way things are going, towards the end of this year.  So I think you can count on the fact you will have a decision in fairly short order.  I will adjourn now to a date to be fixed.

AT 11.11 AM THE MATTER WAS ADJOURNED