Owen v Menzies

Case [2010] QSC 387

SUPREME COURT OF QUEENSLAND

CITATION:

Owen v Menzies & Ors [2010] QSC 387

PARTIES:

RON OWEN
(appellant)
v
RICHELLE MENZIES
(first respondent)
and
TINA JOY COUTTS
(second respondent)
and
RHONDA BRUCE
(third respondent)
and
SUZANNE MARGARET TURNER
(fourth respondent)
and
WOMEN 2 WOMEN
(fifth respondent)

FILE NO/S:

BS10395/08

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

18 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2010

JUDGE:

Douglas J

ORDER:

Set aside the orders of the Anti-Discrimination Tribunal made 19 September 2008 and 27 November 2008 and order that the matter be remitted to the Queensland Civil and Administrative Tribunal to be dealt with according to law. 

CATCHWORDS:

HIGH COURT AND FEDERAL COURT – THE FEDERAL JUDICATURE – NATURE AND EXTENT OF JUDICIAL POWER – ADMINISTRATIVE TRIBUNALS – where the respondents made a complaint against the appellant to the Anti-Discrimination Tribunal Queensland for vilification in contravention of s 124A(1) of the Anti-Discrimination Act 1991 (Qld) – where the appellant argued before the Tribunal that s 124A of the Act was invalid as inconsistent with the Commonwealth Constitution and that the Tribunal was not capable of exercising the judicial power of the Commonwealth to attempt to determine that issue – where the Tribunal made orders against the appellant without deciding these constitutional arguments – where the Tribunal’s orders are registrable – whether the Tribunal impermissibly exercised the judicial power of the Commonwealth

Commonwealth Constitution, s 76(i)

Judiciary Act 1903 (Cth), s 30(a), s 39(1), s 39(2), s 40(1)

Anti-Discrimination Act 1991 (Qld), s 212

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 131, s 132, s 117, s 118, s 259

APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322, cited

Attorney-General (NSW) v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349; (2006) 226 FLR 62; (2006) 236 ALR 385, followed

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, applied

Commonwealth v Anti-Discrimination Tribunal (Tasmania)(2008) 169 FCR 85, followed

Menzies v Owen [2008] QADT 20, cited

COUNSEL:

The appellant appeared on his own behalf

S J Hamlyn-Harris for the respondents

SOLICITORS:

The appellant appeared on his own behalf

Caxton Legal Centre Inc for the respondents

[1] Douglas J: On 19 September 2008 the Anti-Discrimination Tribunal made orders against the appellant, Mr Owen, stemming from a complaint made against him in that Tribunal that he had engaged in a number of public acts in 2005 that incited hatred towards, serious contempt for, or severe ridicule of homosexuals on the ground of their sexuality contrary to s 124A of the Anti-Discrimination Act 1991. He appealed to this Court in 2008 against that decision and, in this application, seeks to argue separately one issue arising in the appeal, namely that the Tribunal had improperly attempted to exercise the judicial power of the Commonwealth.

Background

[2]      Mr Owen had attempted to argue the appeal in full previously, relying on an affidavit and written submissions each of significant…

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Owen v Menzies [2010] QSC 387
Case
[2010] QSC 387
Decision Date

CaseChat Overview and Summary

The case of Owen v Menzies involved a dispute between the appellant and the respondents, who had lodged a complaint against the appellant with the Anti-Discrimination Tribunal Queensland. The respondents alleged that the appellant had engaged in vilification in breach of section 124A(1) of the Anti-Discrimination Act 1991 (Qld). The appellant contested the complaint, arguing that section 124A of the Act was unconstitutional as it conflicted with the Commonwealth Constitution and that the Tribunal lacked the authority to decide on constitutional matters. Despite these arguments, the Tribunal issued orders against the appellant without addressing the constitutional issues.

The legal issues that arose in this case primarily revolved around the jurisdiction of the Anti-Discrimination Tribunal Queensland to make orders that implicitly or explicitly determined the validity of Commonwealth legislation. The appellant contended that the Tribunal's orders constituted an exercise of the judicial power of the Commonwealth, which, according to the Constitution, could only be conferred upon federal courts. The court had to determine whether the Tribunal's actions were permissible under the Constitution, particularly in light of the principle that the judicial power of the Commonwealth cannot be conferred on state tribunals without explicit constitutional provision.

The High Court found that the Anti-Discrimination Tribunal Queensland, despite being a state tribunal, exercised the judicial power of the Commonwealth by issuing enforceable orders that implicitly decided on the validity of federal legislation. This conclusion was drawn from the principles established in R v Kirby; ex parte Boilermakers’ Society of Australia and APLA Limited v Legal Services Commissioner (NSW). The Court emphasised that the judicial power of the Commonwealth can only be conferred in accordance with Chapter III of the Constitution, and any attempt by a state tribunal to determine constitutional matters would be an impermissible exercise of that power. Consequently, the Court held that the Tribunal's orders were invalid and needed to be set aside.

The Court ordered that the decisions and orders of the Anti-Discrimination Tribunal made on 19 September 2008 and 27 November 2008 be set aside. The matter was to be remitted to the Queensland Civil and Administrative Tribunal for further proceedings, ensuring that any determination on constitutional issues was made by a court with the appropriate federal judicial power. This decision underscored the importance of adhering to the constitutional framework governing the separation of powers and the allocation of judicial authority.

Orders

Orders of the court

Set aside the orders of the Anti-Discrimination Tribunal made 19 September 2008 and 27 November 2008 and order that the matter be remitted to the Queensland Civil and Administrative Tribunal to be dealt with according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That the Tribunal here is a State tribunal rather than a creation of a Commonwealth statute does not, in my view, alter the result. Rather than refuse to follow or distinguish Attorney-General of New South Wales v 2UE Sydney Pty Ltd I should follow it. In my respectful view it is correct and applicable to this case.[21] Once the permissible discussion of the effect of a matter arising under the Constitution or involving its interpretation on a case before a State tribunal achieves the form of a purportedly enforceable order, by the expedient simply of filing it in the registry of a court of competent jurisdiction, it seems to me that there has been an exercise of the judicial power of the Commonwealth by a body, here the Tribunal, on which that power has not been conferred. [21]In saying this I recognise that it has been criticised in Kerr, State Tribunals and Chapter III of the Australian Constitution, (2007) 31 Melbourne University Law Review 622; [2007] MULR 24, as potentially inconsistent with ReResidentialTenanciesTribunal(NSW);ExpartetheDefenceHousingAuthority (1997) 190 CLR 410 and inherently unstable. See: type="1">This conclusion follows from the decision in R v Kirby; ex parte Boilermakers’ Society of Australia[22] and the discussion by Gummow J in APLA Limited v Legal Services Commissioner (NSW)[23] where his Honour summarised a number of principles relevant to the application of Ch III of the Constitution including the first, that “no part of the judicial power of the Commonwealth can be conferred other than by virtue of, and in accordance with, the provisions of Ch III of the Constitution. This was settled in the Boilermakers' Case …”, and the fourth, that “the powers of the Parliament just mentioned are necessarily exclusive of those of the legislatures of the States”. [22](1956) 94 CLR 254, 273-275; [23][2005] HCA 44; 224 CLR 322, 405-407 at [227]-[233]; See also MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; (2008) 233 CLR 601, 618 at [20].Conclusion and ordersTherefore the decision and orders of the Anti-Discrimination Tribunal should be set aside and referred back to QCAT. The practical effect of that would seem to be that the president of QCAT will then need to refer the matter back to this Court in the form of the Court of Appeal for the determination of those constitutional arguments, pursuant to s 118 of the QCAT Act, a course which is likely to be time consuming and clumsy but appears to me to be dictated by the “strict requirements of Ch III jurisprudence”.[24] Once those issues have been litigated before a court capable of exercising the judicial power of the Commonwealth and a binding determination made, perhaps by a declaration, which must be applied by the Tribunal it seems to me that the constitutional or federal issues will have been determined validly even if the final orders are ones which issue from the Tribunal. In other words there will be an issue estoppel binding the parties arising from an adjudication of a Ch III court.[25] [24]See Attorney-General of New South Wales v 2UE Sydney Pty Ltd at [87].[25]Accordingly I disagree with the statement by Kennett, op cit, at 161.Accordingly I shall set aside the orders of the Anti-Discrimination Tribunal made 19 September 2008 and 27 November 2008 and order that the matter be remitted to the Queensland Civil and Administrative Tribunal to be dealt with according to law. I see no need to make the declaratory order sought in addition to the order I propose as the orders made would not be beyond the powers of the Tribunal if the procedure I suggest had been adopted in the first place.

Ratio Decidendi

Legal Principle Established

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