Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170
PARTIES:
RONALD OWEN (applicant/respondent/respondent) v RICHELLE MENZIES (first respondent/not applicable/applicant) RHONDA BRUCE (second respondent/applicant/not applicable) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (intervener/not applicable/not applicable)
FILE NO/S:
Appeal No 7138 of 2011 Appeal No 10318 of 2011 Appeal No 10868 of 2011 SC No 10478 of 2008 SC No 10395 of 2008
DIVISION:
Court of Appeal
PROCEEDINGS:
Case Stated Removal or Remission Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
22 June 2012
DELIVERED AT:
Brisbane
HEARING DATES:
27 February 2012 28 February 2012
JUDGES:
Chief Justice and Margaret McMurdo P and Muir JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
In Appeal No 7138 of 2011:
The application for leave to amend the case stated is refused.
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 CommonwealthConstitution?
Unnecessary to decide.
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 CommonwealthConstitution, and therefore invalid, so far as it purports to apply in these proceedings?
Unnecessary to decide.
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?
No.
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?
It is unnecessary to read down s 124A in order to comply with the implied protections of freedom of political communication provided by the CommonwealthConstitution.
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?
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.
In Appeal No 10318 of 2011:
Application refused.
In Appeal No 10868 of 2011:
Application refused.
The Court will receive submissions as to the costs of the appeal hearing in accordance with Practice Direction No 2 of 2010, para [52].
CATCHWORDS:
CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – GENERAL MATTERS – CONSTRUCTION OF THE CONSTITUTION – GENERALLY – where Queensland Civil and Administrative Tribunal (“QCAT”) is described in the Queensland Civil and Administrative Tribunal Act 2009 as a “court of record”– where QCAT is not bound by rules of evidence or any practice or procedure applying to courts of record – where QCAT is to determine matters on a “fair and equitable basis” in minor civil disputes – where QCAT’s final decisions…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Owen v Menzies [2012] QCA 170
Case
[2012] QCA 170
Decision Date
CaseChat Overview and Summary
The case of Owen v Menzies involved a constitutional challenge to the jurisdiction of the Queensland Civil and Administrative Tribunal (QCAT). The primary dispute revolved around whether QCAT was a "court of a State" within the meaning of the Commonwealth Constitution. The matter was brought before the court as a case stated by QCAT, which sought the court's determination on specific legal questions arising from complaints of vilification against Mr. Owen. The court was required to decide several key issues, including whether QCAT was constitutionally permitted to hear and determine the complaints against Mr. Owen, whether a provision in the Anti-Discrimination Act infringed upon the implied freedom of political communication, and whether a bisexual person could have standing to complain about vilification on the ground of homosexuality under the Anti-Discrimination Act.
The court meticulously analysed the constitutional arguments presented. It found that QCAT was not a "court of a State" within the meaning of the Commonwealth Constitution, as it lacked certain characteristics of a traditional court, such as being bound by rules of evidence and procedure, having the power to punish for contempt, and being able to enforce its own orders. However, the court determined that Chapter III of the Constitution did not prohibit QCAT from hearing and determining the complaint against Mr. Owen, as QCAT was exercising its jurisdiction under the QCAT Act, not as a federal court. Regarding the implied freedom of political communication, the court concluded that section 124A of the Anti-Discrimination Act did not unjustifiably burden this freedom as it was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the constitutionally prescribed system of government. Lastly, the court held that, depending on the circumstances, a bisexual person could have standing under section 134(1)(a) of the Anti-Discrimination Act to complain about vilification on the ground of homosexuality.
The court also addressed procedural matters, declining to allow amendments to the case stated on the grounds that the issues identified by the Attorney-General adequately covered the intended questions. The court refused the application for leave to amend the case stated, opting instead to address the three issues identified by the Attorney-General. The final orders of the court included the refusal of the application for leave to amend the case stated and the determination of the legal questions posed, including the refusal of applications in other appeals related to the case.
Orders
Orders of the court
In Appeal No 7138 of 2011:
The application for leave to amend the case stated is refused.
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?
Unnecessary to decide.
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?
Unnecessary to decide.
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?
No.
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?
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.
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?
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.
In Appeal No 10318 of 2011:
Application refused.
In Appeal No 10868 of 2011:
Application refused.
The Court will receive submissions as to the costs of the appeal hearing in accordance with Practice Direction No 2 of 2010, para [52].
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
During the hearing of the present matters, counsel for the Attorney-General submitted that questions 1 and 2 of the case stated do not address the apposite issues. If the Supreme Court decides to remit a decision of the former tribunal to QCAT, QCAT must deal with the matter under the Anti-Discrimination Act as if that Act was still in force as it was prior to the enactment of the QCAT Act.[24] In doing so, although QCAT has only the functions of the Anti-Discrimination Tribunal[25] and can make only decisions which the former tribunal could have made,[26] it is exercising QCAT’s jurisdiction under the QCAT Act. It follows that to ask in question 1 whether the former tribunal would have impermissibly exercised federal jurisdiction by hearing and determining the complaints of vilification against Mr Owen is not the same as asking whether QCAT would impermissibly exercise federal jurisdiction by hearing and determining the complaints. It is the latter question which is now relevant.[24]QCAT Act, s 260(3).[25]QCAT Act, s 260(4)(a). The functions of the Anti-Discrimination Tribunal were set out in s 248 Anti-Discrimination Act 1991 (Qld) but have now been repealed by Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld) s 1354.[26]QCAT Act, s 260(4)(b). Under s 244 QCAT Act: “decision, of a former tribunal or court, includes an order made or direction given by the former tribunal or court”. Similarly in terms of question 2, s 212 Anti-Discrimination Act only applies to the registration of a decision by the former tribunal. A decision of QCAT made exercising the functions of the former tribunal remains a decision of QCAT; it is not a decision of the former tribunal. QCAT’s decisions may be enforced through Pt 7 Div 4 (ss 129–132) of the QCAT Act. It is the validity of those provisions and not s 212 Anti-Discrimination Act that are now in issue. As a result, counsel for Mr Owen and counsel for Ms Menzies and Ms Bruce, without conceding that questions 1 and 2 in the case stated are deficient, sought to amend the case stated to include the following questions: Counsel for the Queensland Attorney-General did not support the amendment of the case stated. He submitted it was sufficient for this Court to consider the following three issues in addressing the case stated. The first is whether Ch III of the Constitution prohibits QCAT from hearing and determining the complaint against Mr Owen under s 124A Anti-Discrimination Act. The second is whether s 124A infringes the implied constitutional freedom of political communication. The third is whether a bisexual person can have standing under s 134(1)(a) Anti-Discrimination Act to complain about vilification on the ground of homosexuality. It does not seem that further supplementary notices containing the proposed questions 1A and 2A were served on the Commonwealth and State Attorneys, other than the Queensland Attorney. Despite the deficiencies in questions 1 and 2, the three issues identified by counsel for the Attorney-General adequately encompass all the issues intended to be raised in the case stated. In these circumstances, I would refuse the application for leave to amend the case stated by adding questions 1A and 2A. I will instead address the three questions identified by the Attorney-General.