Prime Minister John Piss the Family Court and Legal Aid v Minister for Foreign Affairs and Trade (No.1)
[2003] FMCA 90
•20 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRIME MINISTER JOHN PISS THE FAMILY COURT AND LEGAL AID v MINISTER FOR FOREIGN AFFAIRS AND TRADE (No.1) | [2003] FMCA 90 |
| ADMINISTRATIVE LAW – Whether error of law – reference to dictionary definitions – whether discretion properly exercised – whether words offensive – relevance of Applicant’s evidence of meaning – power to issue and/or cancel passport – external affairs power – ministerial discretion. |
Administrative Appeals Tribunal Act 1975, s.44
Passports Act 1938, ss.7(1), 8(1), 11A(1), 11(5)
Passports Regulations1939, reg.4
Informal v Chief Electoral Officer (unreported 18 February 1992)
re Drake v Minister for Immigration and Ethnics Affairs (No 2) [1979] 2 ALD 634
Minister for Immigration v Gray [1994] 33 ALD 13
Department of Industrial Relations v Burchill [1991] 33 FCR 122
Attorney General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] 10 FCR 180
Lange v Australian Broadcasting Commission [1997] 189 CLR 579
Koowarta v Bjelke-Petersen &Ors [1982] 153 CLR 168
Minister for Immigration v Teoh [1995] 183 CLR 273
Neal v Secretary Department of Transport [1980] 29 ALR 350
Collector of Customs v Pozzolanic Enterprises [1993] 43 FCR 280
Pell v The Council of the Trustees of the National Gallery of Victoria [1998]
2 VR 391
re Drake v Minister for Immigration and Ethnics Affairs (No 2) [1979] 2 ALD 634
Minister for Immigration v Gray [1994] 33 ALD 13
Department of Industrial Relations v Burchill [1991] 33 FCR 122
Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] 10 FCR 180
| Applicant: | PRIME MINISTER JOHN PISS THE FAMILY COURT AND LEGAL AID |
| Respondent: | MINISTER FOR FOREIGN AFFAIRS AND TRADE |
| File No: | MZ 235 of 2002 |
| Delivered on: | 20 March 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 April 2002 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr D Perkins |
| Solicitors for the Applicant: | Access Law |
| Counsel for the Respondent: | Mr M Crennan |
| Solicitors for the Respondent: | Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 235 of 2002
| PRIME MINISTER JOHN PISS THE FAMILY COURT AND LEGAL AID |
Applicant
And
| MINISTER FOR FOREIGN AFFAIRS AND TRADE |
Respondent
REASONS FOR JUDGMENT
Introduction
The application is an appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) delivered on 23 November 2000.
In its decision, the Tribunal had affirmed two decisions then under review. The first of those decisions was made on 18 November 1998 whereby the Minister for Foreign Affairs and Trade (“the respondent”) had affirmed a decision to cancel a passport issued in the name “Prime Minister John Piss Family Court – Legal Aid”. A second decision under review was made on 18 November 1998 whereby the respondent had affirmed a refusal to issue a passport in the name “Prime Minister John Piss The Family Court and Legal Aid”.
In this appeal, there is no dispute that the Tribunal had appropriate jurisdiction under s.11(5) of the Passports Act 1938 (“the Passports Act”) to review each decision defined in s.11A(1) of that Act as a “ministerial decision”. The definition of “ministerial decision” includes decisions under s.7(1) of the Passports Act refusing to issue a passport and decisions under s.8(1) to cancel a passport.
Before the Tribunal there were two substantial issues. The first involved the question of whether the applicant had changed his name to the name which was the subject of the application. The Tribunal accepted that in fact the applicant had changed his name and it applied the unreported decision of Slicer J in the Supreme Court of Tasmania in the matter of Informal v Chief Electoral Officer (unreported 18 February 1992). It was satisfied that the four steps set out in that case, namely that there had been a conscious decision to change, an abandonment of all or part of an existing name, the adoption of a new name, and that the person had become generally known by the new name, had all been fulfilled. The Tribunal noted the evidence given by the applicant as to the use of the name and in particular references made to various forms of the name which had been altered to suit a number of organisations such as Medicare and different banks. It was accepted by the Tribunal however that there was evidence which showed that the applicant used the name as a candidate in a federal election and in particular made reference to Exhibit A1 which was an extract from an electoral pocket book for the 1998 federal election showing the applicant used the name in that election. A number of newspaper articles were relied upon by the applicant and it appears that that evidence, together with other evidence as to the use of the name, was accepted by the Tribunal. The first issue is not an issue which is a subject of appeal before this Court and is not the subject of any cross-appeal by the Respondent.
The second issue is whether the name is offensive. In dealing with that issue, the Tribunal made findings that the words “Piss” and “Prime Minister” in the name were offensive. It is that decision which is the subject of the appeal before this Court. In making its decision that the words “Piss” and “Prime Minister” were offensive, the Tribunal then concluded that it was appropriate that it should affirm the two decisions under review.
The applicant in his notice of appeal refers to the following matters under the heading “Grounds”:—
“The appellant refers to each one of the questions of law raised in paragraph 2, and in respect of each decision of the Tribunal contends that –
AThe decision was wrong in law.
BThe decision was not open.
Further,
CIt was not open to the Tribunal to treat the existence of the passport manual, or of paragraph 325 of it, or any other factor or matter, as creating a discretion in the Tribunal to refuse an application by a person under that person’s own name.
DThere is no legislative or discretion or power in the Minister or the Tribunal to enforce, or to delegitimise or invalidate, any particular notion of or opinion about linguistic morality or linguistic good taste.
EThe Tribunal erroneously treated the Minister’s perspective of and concerning the appellant’s name as precluding the necessity to identify, examine, and apply the perspective of the appellant.”
The notice of appeal sets out numerous questions of law and although there is some repetition and it may be argued a number of the alleged questions are not in fact questions of law, it is appropriate to set them out as they appear in the notice of appeal as follows:—
“2.THE QUESTIONS OF LAW raised on this appeal are:
(a)Did the Tribunal err by failing to take into account or give proper consideration to exhibit A1?
(b)Is the decision of the Tribunal inconsistent with the applicant’s legitimate expression of political opinions?
(c)In the absence of any legislative power of the Commonwealth with respect to personal names, is it open to the Minister to make policy or give directions which fetter, prohibit, or prevent the use, on a passport, of a name found to be a citizen’s name?
(d)Did the Tribunal misconceive the relevance of, or did it err in the application of, the case of Pell?
(e)Was the Tribunal in error in its application of Pell’s case in that it failed to consider the ramifications of and arising from exhibit 1A?
(f)Did the Tribunal adopt an approach (in paragraph 32) which was in error in that –
(i)it approached the matter solely from one possible perspective of the commonwealth?
(ii)it failed to state, identify, or consider the legitimate expectation of the applicant to be able to use and pass by his lawful name?
(iii)it failed to consider the perspective of a passport applicant?
(iv)it failed to consider the relevant matters?
(v)it failed to distinguish endorsement of a name (or of political sentiments expressed by the name) and endorsement of a right to travel?
(vi)it failed to consider the alternative ways in which the Minister should have dealt with the matters about which he objected.
(g)Was it open to the Tribunal to use speculation in place of evidence in deciding whether the applicant’s use or future use of his name was or could be considered offensive?
(h)Did the Tribunal fail to direct itself appropriately in relation to the nature and incidents of the democratic process in Australia?
(i)Did the Tribunal fail to direct itself appropriately in relation to the entitlement of the applicant as a continuing participant in the democratic process?
(j)Was it open to the Tribunal to conclude that the name of the Applicant included a royal or noble or other title?
(k)Was it open to the Tribunal to conclude that the name of the Applicant was offensive, or that it was offensive in any relevant or material way?
(l)Was it open to the Tribunal upon reasonable grounds to find that the use of the word “Piss” in the applicant’s name is offensive?
(m)Did the Tribunal apply an irrelevant test [viz: whether the appellant’s name could be considered offensive] in considering the concept of offensiveness.
(n)Did the Tribunal err in law in that it failed to give any or any proper reasons for its decision to affirm the respondent’s decision to cancel the applicant’s passport.
(o)Did the Tribunal misdirect itself [paragraph 34] by considering questions of contempt of court and purporting to make a finding thereupon?
(p)Did the Tribunal act in excess of jurisdiction by dealing with questions of contempt of the Family Court?
(q)Did the Tribunal err, or did it act in excess of jurisdiction, by making a finding contrary to the only evidence in the case concerning the question of intent [paragraph 34].”
The Applicant’s Counsel relied upon the Applicant’s Contentions of Fact and Law filed in accordance with an order of the Court which formed the basis of submissions made for and on behalf of the Applicant. Likewise the Respondent made submissions and relied upon contentions of fact and law during the course of the hearing.
Relevant legislation
It is appropriate, however, at the outset to briefly set out the relevant legislation which had been relied upon by the AAT. The Passports Act provides as follows:—
“7(1)Subject to the regulations, the Minister or an officer authorised in that behalf by the Minister may issue Australian passports to Australian citizens.
(2)Australian passports shall be issued in the name of the Governor-General and shall be in such forms as are approved by the Minister.
(3)The exercise by an authorized officer of a power under this section is subject to any directions of the Minister and to sections 7A, 7B, 7C, 7D and 7E.
(4)The Minister is not entitled to refuse, or to direct an authorized officer to refuse, to issue an Australian passport except-
(a)in circumstances in which, under section 7A, 7B, 7C, or 7D, an authorized officer is prohibited from issuing a passport unless directed otherwise by the Minister or by a person specified for the purpose in the relevant section; or
(b)in circumstances where the Minister may notify an authorized officer under sub-section 7E(1) that an Australian passport is not to be issued.
(5)Where the Minister or an authorized officer makes a decision under sub-section (1) refusing to issue a passport, the Minister or an authorized officer shall cause to be served, either personally or by post, on the applicant for the passport a notice in writing setting out that decision and the reasons for that decision.
8(1)An Australian passport, whether in the possession or custody of the person to whom it was issued or otherwise, may be cancelled by the Minister, an approved representative or the approved senior officer, and a passport on being cancelled under this sub-section becomes void.”
Regulation 4 of the Passports Regulations 1939 which provides:
“4. The exercise of any power or function of an authorised
officer under these Regulations shall in all cases be subject to any directions of the Minister.”
Paragraph 325 of the Manual of Australian Passport Issue (“the Manual”) provides:—
“An Authorised Officer has discretion not to accept for inclusion in a passport any name, whether acquired by Deed Poll or by reputation, which, on reasonable grounds, may be considered offensive. This discretion may be applied to names which are considered offensive because they contain expletives or racial and/or ethnic slurs or implications, and to cases in which applicants purport to use Royal Titles or Titles of Nobility which have not been legitimately acquired.”
Background
It is relevant to set out the reasons given for the respondent’s decision set out in a letter of the delegate dated 18 November 1998:—
“In my opinion, the authorised officer was mistaken in issuing you a passport in the name “Prime Minister John Piss Family Court – Legal Aid”, as the name: (i) contains an expletive (“Piss”) and (ii) contains an official title not legitimately acquired (“Prime Minister”). On the latter point, I note particularly that a passport is a travel document endorsed by the Australian Government and remains at all times the property of the Australian Government. Issuing a passport in a name such as “Prime Minister John …” could lead to confusion when presented overseas. These considerations are not resolved by whatever legitimacy could be granted to the use of such a name by the Australian Taxation Office and your use of it for other purposes (eg. in relation to bank accounts). Although paragraph 325 of the Manual of Australian Passports Issue does not specifically mention official titles, it is clear that the examples given (concerning Royal or Noble titles) do not limit the general discretion granted in that paragraph. Furthermore, the misuse of official titles of the Australian Government in Australian passports is a matter as serious as the misuse of Royal or Noble titles.”
The Tribunal in its reasons conveniently referred to the summary of background facts provided in the section 37 statement as follows:-
“ …
2. The respondent, is responsible for the issue of Australian passports to Australian citizens.
3. On 19 March 1998 the applicant who claimed to have changed his name from John Zabaneh on 11 November 1997, applied at the Melbourne Office of Passports Australia for an Australian Passport in the name "Prime Minister John Piss the Family Court and Legal Aid".
4.On 16 April 1998, after discussions with the applicant in which he was advised that the word "The" would be dropped from the surname, a passport was issued in the name of "Prime Minister John Piss Family Court - Legal Aid (passport number L6310369).
5. On 28 August 1998 the applicant requested written advice as to why the passport has not been issued with the word "The" in the title.
6. By letter dated 29 August 1998 Robert Luton, advised the applicant that the word "The" completed a selection of words that taken together were considered offensive by Passports Australia.
7. By letter dated 28 September 1998 the applicant wrote to Mr Luton requesting a review of this decision.
8. On 15 October 1998 a decision was made pursuant to section 8(1) of the Passports Act 1938 to cancel the applicant's passport (passport number L6310369) on the basis that the name "could reasonably be considered offensive in that it contains an expletive and that it contains a title not legitimately acquired".
9. By letter dated 21 October 1998 the applicant was informed of the cancellation decision.
10. By letter dated 21 October 1998 the applicant was informed that as the passport had been cancelled this effectively removed any purpose in continuing the review of the decision not to issue him with a passport in the name "Prime Minister John Piss The Family Court and Legal Aid".
11. By letter dated 30 October 1998 the applicant advised that he had not been informed of the decision to cancel his passport (because the letter to him was addressed to John Zabaneh).
12. By letter dated 31 October 1998 the applicant reiterated his request for a review of the decision refusing him a passport in the name Prime Minister John Piss the Family Court and Legal Aid.
13. By letter dated 18 November 1998 the respondent advised the applicant that the decisions had been reviewed and that the decisions had been affirmed.
14. The Applicant then applied to the Administrative Appeals Tribunal for review of the decisions on 24 November 1998.”
Submissions
Applicant’s submissions
It was submitted on behalf of the applicant that there is no law which permits regulation of citizen’s names or prohibits the use of a name of choice. It was submitted that there is State law which permits the applicant to use whatever name he pleases and that State legislation providing for the registration of births, deaths and names is legislative competence. The State legislation it was submitted has not regulated completely or codified the law on the use of names.
The applicant submitted that to the extent that the Tribunal relied on non-statutory guidelines, directions, standards or principles, then they must be within the legislative competence of the Commonwealth. The question of whether they are reasonable, in the sense, that they bring together a reasoned and consistent set of statements of principle is irrelevant according to the submissions of the applicant. It was submitted that it is common to find both reason and consistency within or between value judgments but neither of those features alters the fundamentally subjective nature of a judgment made. It was contended on behalf of the applicant that to the extent that the principles or guidelines are not within a relevant constitutional power they are invalid.
It was submitted on behalf of the applicant that the law of the State of Victoria permits the use of his chosen name, but on the other hand the use by him of that chosen name is proscribed. It was contended that it is impermissible for the Tribunal to review the circumstances in which the applicant chose his name and was not open to the Tribunal to review or supervise the personal mental processes which led to the applicant making his selection. An attempt was made to draw an analogy between pre-contractual negotiations and the selection of the change of name and it was suggested that the change of name supersede entirely the history of and motives for the change. In the alternative, if it was open for the Tribunal to consider the history and motives for the change of name and use of name, then it was open for the Applicant to use a political name as his only name, just as it is open for an author to use a nom de plume. It is said that taking and using a political name is a legitimate and universally available part of the process of taking part in politics and should be left to what was described in submissions by counsel for the applicant as the “chaos of subjective resolution”.
Reference was made to the public record of the Commonwealth and in particular exhibit A1 which is the electoral pocket book for the 1998 federal election and it was submitted that that public record not only evidences the change of name, but demonstrates it.
It was submitted that the name as distinct from words and letters that it is constituted by as merely the applicant’s name and there is no ambiguity in that as a name. It was submitted if one looks at the words in the name it may be possible to check an expression or a noun, clause or a direction and to go on and make a judgment about what one detects; but if the appellant’s name is a name, then those exercises of detection are beside the point. Once there is a use of the words in the name, then they should be treated as a whole.
During the course of submissions, I was referred to the following paragraphs of the Tribunal’s decision:-
“33. The applicant was asked why he chose to use the word “Piss” in his name. Mr Perkins objected to those questions and said that the name must be considered as a whole. We do not accept that it was not appropriate for the applicant to be asked why he chose to use particular words as part of the name he assumed in late 1997. The applicant said he chose the name to make a political statement asking the Prime Minister to abolish the Family Court. Mr Crennan put to him that the word “Piss” does suggest more than “simply abolish” (trans. p39). Mr Perkins objected and the applicant’s cross-examination was substantially interrupted. When the applicant was asked again whether he thought the meaning of the word “piss” is “abolish”, he replied (trans. p40):
“Well, it has a number of meanings. Yes, this is the meaning I have taken it to be and it is commonly used – it has been commonly used. It is a commonly used term. It is not something that is restricted to this name, as you ---
Is it your belief – I am not asking you to be a dictionary, but is it your belief and experience that the word ‘piss’ is commonly used to mean abolish? --- It’s used in different forms and this is – that is my view, that in this instance I have used it to mean that – to have that meaning.
Is there any reason you did not use the word abolish? --- I didn’t think of it at the time.”
34. We do not accept that the applicant used the word “Piss” to mean “abolish”. That is not a recognised meaning of the word. It is a word used to indicate contempt in a ‘vulgar’ and ‘not…polite’ manner. We do not accept that the applicant did not use the word ‘abolish’ because he did not think of it at the time. He denied that the word was used to offer an insult to the Family Court (trans.p.42) and said the word has “a humorous side to it” (trans. p41). We do not accept that evidence. We are satisfied that the words “Piss the Family Court” were intended by the applicant to be and are in fact insulting to and contemptuous of the Family Court.”
In relation to paragraph 34, it was submitted by counsel for the applicant that the Tribunal misconceived its role in deciding whether the word “Piss” was offensive. It was submitted that the Tribunal should not have taken into account evidence by the applicant as to the reason why he chose the name and it was inappropriate for the Tribunal to consider and reject the applicant’s explanation of being one where the word “Piss” was meant by him to mean “abolish”. During the course of submissions it appeared to be conceded by counsel for the applicant and if not conceded, certainly not the subject of any strong dispute, that the more appropriate task recognised by authorities to which the respondent has referred, was to consider a dictionary definition, even though the applicant would assert that applying that method of assessing the issue of whether the word was offensive should not have led to the conclusion that indeed it was offensive, even if it was said that there was appropriate power to reach that conclusion by the decision-maker and in turn the Tribunal. It is noted that before the Tribunal the Applicant had relied upon the decision of Harper J in Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 to establish that the use of the word “Piss” is not offensive. Likewise, before this Court it is understood that the Applicant maintains Pell’s case supports the general submission that the word “Piss” is not offensive.
The Court was referred to the last sentence of paragraph 34 where the Tribunal used the expression that the words “Piss the Family Court” were intended by the applicant to be and are in fact insulting to and contemptuous of the Family Court, it was submitted by the applicant that this effectively constitutes a finding of contempt of court. It was submitted that the AAT had no power to make such a finding and that any finding of contempt was a matter for the Family Court. or some other chapter “Chapter III Court”. Essentially however it was argued that contempt of court was not before the Tribunal in a factual sense, nor within its legal jurisdiction to adjudicate upon and particulars of the contempt had not been provided. Having regard to normal rules of procedure and fairness it was suggested that in the absence of particulars, the matter was not then properly the subject of a conclusion of a kind which could be interpreted as a finding that there had been a contempt. Had there been such a finding, then an indication should have been given by the Tribunal that it was so satisfied on appropriate particulars in circumstances where it could establish it had power to do so, that contempt had been committed and was so satisfied that the appropriate standards of proof that it was submitted should be the well-known Briginshaw Test. In response to a question during the course of submissions from the court, counsel for the applicant disputed that the phrase used by the Tribunal of “insulting to and contemptuous of the Family Court” when looked at objectively, simply was a form of expression and not meant to convey the impression that a formal finding of contempt of court had been reached. This was rejected by counsel for the applicant who asserted that the interpretation he had placed on those words was valid and the finding of the Tribunal as regards to criticisms made of it, both in terms of jurisdiction and standard of proof was sustained and thereby impugned the Tribunal’s decision.
The Court raised with Counsel for the applicant that even if there was an error in terms of the decision-making process of the Tribunal set out in paragraph 33 of its reasons for decision and/or an error in the expression used in paragraph 34 including the reference to the words being insulting to and contemptuous of the Family Court that that error if it be one would not alter the findings of the Tribunal which otherwise were set out in the remaining paragraphs of the reasons for decision. Counsel for the applicant asserted that once the error was made, then that would be sufficient to lead the court to make a finding that there had been an error of law for the purpose of s.44 of the AAT Act.
It was further submitted by Counsel for the Applicant that the word “piss” is not necessarily offensive but should be seen as being used as part of a name and the name is a legitimate name which has both a identification purpose and a communication on the political message function. In relation to the name it was contended that it would be wrong to treat it as capable of being used to be dissected by a third party and if any offence is taken or discerned by others then that offence is due to political views or the manner of expression. Specifically it was submitted that “those who have a fondness for particular people or institutions, or a dislike of views being expressed by the adoption of a non traditional value (according, perhaps to Judaeo-Christian rites) may well take umbrage”. It was submitted that “similarly those who deprecate the male will not hesitate to deprecate male speech, or male speech patterns, or words more likely to be spoken by males, precisely because they may be unrefined, impolite or boorish.” In addition to that written submission Counsel submitted further that there would appear to be in the use of the word “Piss” a gender preference for that word and it is more likely to be used by males.
At one point during submissions counsel for the Applicant made reference to comments from Grazing Journal 1754 where reference was made to, “The cultural stereotype that men’s speech is coarser and more direct than women’s polite conservative speech has been expressed for centuries”. During the course of that discussion I raised the suggestion that authority may have moved somewhat from those 18th century views to more gender-neutral notions of offensive language. It was then submitted however that there is a question of whether a stereotype was being enforced and it was submitted that it was no part of the business of Government to be enforcing a stereotype. Counsel then submitted the Tribunal had failed in its function by discriminating against the Applicant and it was submitted. “It is not the Tribunal’s function nor is it the function of Government to coerce one gender into adopting the forms of speech of the other”.
Respondent’s submissions
It was submitted on behalf of the Respondent that there was no error of law in the Tribunal’s decision and the application should be dismissed. The prime submission relied upon paragraph 325 of the Manual which provides that “An Australian Officer has discretion not to accept for inclusion in a passport any name, which acquired by Deed Poll or by reputation, which, on reasonable grounds, may be considered offensive. This discretion may be applied to names which are considered offensive because they contain expletives …”
The findings by the Tribunal that the Applicant’s name was offensive was a finding which was open to the Tribunal on the material before it according to the submission of the Respondent. Those findings are not vitiated by mistake of law and it was submitted that the Applicant has failed to identify any error of law.
It was submitted that paragraph 325 of the Manual provides for a discretion and although the guidelines in the Manual do not have legislative force they do reflect ministerial policy. The Tribunal in the circumstances acted in accordance with the well established practice of following publicly declared ministerial policy or departmental guidelines in the absence of good reason not to do so. I was referred to the well known decisions of re Drake v Minister for Immigration and Ethnics Affairs (No 2) [1979] 2 ALD 634 and Minister for Immigration v Gray [1994] 33 ALD 13. It was submitted in the written outline of the Respondent that, “No cogent reason is advanced why the guidelines should not be applied in this case.”
The word “offensive” should be given its ordinary meaning and not that ascribed to it in the context of offensive behaviour in criminal law. Reliance was placed on the Macquarie Dictionary definition wherein “offensive’ is defined as including “1. causing offence or displeasure; irritating; highly annoying. 2. disagreeable to the sense …
3. Repugnant to the moral sense, good taste or the like; insulting …”. The Shorter Oxford Dictionary provides in its definition, “2. Hurtful, injurious … 3. Giving … offense; displeasing; … insulting”.Accordingly it was submitted that where there is a possibility that the name sought to be used in a passport is offensive a discretion exists not to include that name. Further reliance was placed upon names which may be considered because they purport to use titles which have not been legitimately acquired.
It is conceded that the discretion must be exercised on reasonable grounds and should not be exercised capriciously or arbitrarily. In considering the issue of reasonable grounds the Court was referred to the decision of Department of Industrial Relations v Burchill [1991] 33 FCR 122. In considering a provision of the Freedom of Information Act 1982 Davies J stated at page 125-6 the following:
“I need not elaborate on what is the import of the term ‘reasonable grounds’. In Re Porter and Department of Community Services and Health (1988) AAR 335 at 337-339, Deputy President RK Todd said –
‘To be ‘reasonable’, it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational, absurd or ridiculous … It follows that it is a heavy thing for the Tribunal to reject a certificated claim.’
In support of the Respondent’s submissions I was referred to the decision of the Federal Court in Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] 10 FCR 180 as follows per Bowen CJ and Beaumont J:-
“In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act.”
The Court in the Cockcroft case was considering s.43 of the Freedom of Information Act 1982. It was submitted in the present case that the Tribunal was correct in finding that the word “piss” in the context in which it appears and on the document proposed to be used may reasonably be considered offensive. Reliance was placed on the Macquarie definition of “piss” which includes “to urinate” and the Oxford English Dictionary which includes “not now in polite use …. to discharge urine”. Webster’s Third New International Dictionary relevantly provides a definition of “piss” to include “urinate, usu. considered vulgar …”
In the alternative it was submitted that as the passport is a document which remains Commonwealth property and makes an offensive reference to a Federal Court and which is issued in the name of the representative of Australia of Her Majesty Queen Elizabeth and is to be presented to foreign states with all the attributes of a passport it would be considered as circumstances which underlines the offensive nature of the elements of the name identified by the Tribunal. The offensive elements include according to the Respondent’s submissions the words identified by the Tribunal including the use of the title “Prime Minister”. In dealing with the submissions made for and on behalf of the Applicant and in the particular the suggestion that the Manual guidelines are “not within a relevant constitutional power” it was noted that there was no authority referred to to support that proposition by the Applicant. The source of power in the present case is the external affairs power provided in s.51(xxix) of the Constitution. It was submitted that the issuing of passports is an incident of that power and such steps as are relevant to regulate the issue of passports are likewise within power.
In dealing with the issue of the finding by the Tribunal that the reference to the Family Court is insulting and contemptuous of that Court, it was submitted that this issue was not raised directly in the Notice of Appeal on the basis of the Tribunal taking into account an irrelevant consideration. In general terms however it was submitted that the Tribunal was not making a finding as to whether the Applicant had committed a contempt of Court but simply that the words were intended to be and were contemptuous.
In relation to the claim that there is no positive federal law which “permits federal regulation of citizens names, or the prohibition of use of a name of choice” it was submitted that the power of the Minister is the external affairs power of the Constitution. The exercise of the power to issue or to cancel passports is subject to the directions of the Minister pursuant to s.7(3) of the Passports Act. The Minister or his delegate in the present case, according to the Respondent’s submission has not refused to issue a passport to the Applicant but has refused to issue a passport to the Applicant in a particular form. That form contains the offensive elements of the Applicant’s name. The Minister it was submitted is entitled to devise and implement relevant and appropriate policies in relation to the form and content of passports. The Tribunal found that the Minister correctly identified offensive elements in the name and was entitled therefore to implement the policy contained in paragraph 325 of the Manual. It was submitted on behalf of the Respondent that any arguments advanced in relation to the issue of free speech does not apply to the facts of the present case.
After reciting a number of authorities in relation to the issue of free speech, it was submitted that the refusal to issue a passport does not encroach upon freedom of speech as it is not interfering with a form of communication. Reliance was placed upon the decision of the High Court in Lange v Australian Broadcasting Commission [1997] 189 CLR 579. In that case the Court defines freedom of communication as “freedom of communication between people concerning political or government matters which enables the people to exercise a free and conformed choice as electors” (at 560). Reference was then made to the Court’s decision at 561-562 at follows:
“However, the freedom of communication which the Constitution protects is not absolute (251). It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.”
To the extent that reliance in the written material of the Applicant is sought to be placed upon the international covenant on civil and political rights and in particular Article 19 thereof it was submitted that that article refers to the right to freedom of expression being the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art or through any other media of his choice.” The rights are limited however by restrictions it was submitted by the Respondent which include the following:
“ … provided by law and are necessary;
(a)for respect of the rights or reputation of others;
(b)for the protection of National security or of public order (ordre public), or public health or morals.”
Ratification of the international treaty by the Commonwealth does not of itself import the terms of the treaty into Australian municipal law (see Koowarta v Bjelke-Petersen & Ors (1982) 153 CLR 168 at 193).
In making submissions that the terms of the treaty are not imported into Australian municipal law it was acknowledged that in some circumstances where there may be an ambiguity or uncertainty in a State, an interpretation in conformity within international treaty will be favoured over one which is not. In the present case however there is no legislative ambiguity according to the submissions of the Respondent in the facts which would attract the operation of this principle. It was further conceded that the principle of “legitimate expectation” may sometimes apply in specified circumstances where a person has a legitimate expectation that if a decision-maker is not to make a decision in the light of international treaty obligations the person affected will have an opportunity to be heard on the issue (see Minister for Immigration v Teoh [1995] 183 CLR 273 at 291-292, 302-303 and 305). In applying the principles set out in Teoh’s case it was submitted that there is no basis in the present case for an assertion being made that the legitimate expectation would apply as the entry of a name on a passport is not a form of communication and is thus not a “medium”. In any event the conduct of the decision-maker in the present case is not inconsistent with the treaty and clearly the affected person has been given the opportunity to be heard.
The Respondent referred to the decision of Neal v Secretary Department of Transport [1980] 29 ALR 350 which deals with the issue of what happens when a Court decides the meaning of a word and how the Court should undertake its task. I was referred to the decision of Sheppard J at page 362 of that case where His Honour states –
“ … The authorities to which I have referred show that before embarking on the exercise of construction a judge needs to ascertain the meaning of the various expressions used in the instrument to be construed. Really he needs to ascertain the meanings of which the expressions are capable. As I have earlier said, if words used are technical words or terms or art (or, I would add, expressed in a foreign language) recourse may be had to evidence to explain them. If they are ordinary English words their meaning may only be ascertained by reference to dictionaries and other standard works. … The decisions to which I have referred provide clear authority for the proposition that a court concerned only with deciding a question of construction (that is a question of law) may inform itself of the meaning of ordinary English words by reference to dictionaries and other standard works notwithstanding that the meaning of such words is a question of fact. The Court has to be able to take that course.
…
In the present case we were referred, quite properly, to the dictionary meanings of the various expressions used in the provision in question. We were also referred to evidence given before the Tribunal as to their meaning. But it would only be if all or some of the various expressions were used in a technical sense that it would be appropriate to have regard to the evidence.”
It was submitted that in the present case the Tribunal correctly referred to the dictionary definitions. Reference was made to the decision of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises [1993] 43 FCR 280 and in particular at page 286 where the Court states in dealing with the issue of a question of law or fact the following:-
“The jurisdiction invoked by the respondents in the proceedings before his Honour was that conferred by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides: ‘A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding’. The limitation of the jurisdiction of the resolution of questions of law imposes significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77-78
….
This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: Lenell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority [1985] 5 AAR 156 at 164 (Sheppard J), Repatriation Commission v Bushell [1991] 12 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error; Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).”
The Respondent noted that after reciting the general proposition which emerged from the cases the Court in the Pozzolanic case then stated the following at page 288 –
“This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts are found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact.”
It was submitted that it was reasonably open to the Tribunal to find that the words “Prime Minister John Piss the Family Court and Legal Aid” are offensive within the meaning of those words as found in the dictionary and that once that conclusion is reached then that is sufficient to dismiss the application. Any assessment of the Applicant’s evidence in relation to the common usage of the words does not constitute an error of law particularly in circumstances where the Tribunal is simply giving the Applicant as I understand the submission by the Respondent an opportunity to go beyond dictionary definitions.
During the course of submissions I had raised with Counsel the question of whether or not the use of the name in the 1998 federal election was subject to any decision by the Electoral Commission and/or exercise of discretion to refuse to allow that name to be used. This was in the context of the Tribunal’s reference to evidence before it that the Electoral Officer for the State of Victoria had refused to enrol the Applicant in the Victorian State Electoral Roll in the same name. Counsel for the Respondent referred to s.98A of Reprint No 9 of the Commonwealth Electoral Act inserted by Act No 34 of 2001 which provides as follows:-
“A divisional returning officer or Australian electoral officer may refuse to include in a roll or transfer to a roll a person’s name if the divisional returning officer or Australian electoral officer considers that the name (a) is fictitious, frivolous, offensive or obscene.”
It was submitted that a similar provision did not appear to apply to the Applicant when he stood as a candidate in 1998.
Reasoning
In an application of this kind it is clear that the Applicant must demonstrate an error of law. I adopt and apply the principles set out in the Pozzolanic case referred to by Counsel for the Respondent.
There is no doubt that the Tribunal had jurisdiction to review the decisions made to cancel the passport issued to the Applicant and to refuse to issue a passport to the Applicant in the name requested. The Tribunal correctly identified the power of the Minister and/or delegate under s.7 of the Passports Act and appropriately referred to Regulation 4 of the Passports Regulations and paragraph 325 of the Manual. The power to cancel a passport likewise was correctly referred to in s.8(1) of the Passports Act.
In my view there can be no doubt that the Minister and/or his delegate has power to issue and/or cancel passports. I am satisfied that there is similarly power arising out of the Passports Act for the Minister to provide directions of the kind set out in the Manual. To the extent that I am required I further find that the power exercised in relation to passports is a power exercised pursuant to s.51(xxix) of the Constitution. I accept that the issuing of passports is an incident of that power in the Constitution and the steps taken by the Minister to regulate the issue of passports is similarly within that power. Likewise the discretion to refuse to issue a passport with an offensive name falls within that power.
Applying the principles of law which have been referred to by the Respondent in a review of this kind, it is clear that the significant issue involved a finding by the Tribunal as to whether or not the relevant words were offensive and accordingly whether the discretion of the Respondent has been correctly exercised pursuant to paragraph 325 of the Manual. In considering that issue the Tribunal has correctly made reference to dictionary definitions and its finding based upon those definitions is a finding of fact which does not demonstrate any error of law. I am further satisfied that the use of the words “Prime Minister” constitutes use of a title not legitimately acquired by the Applicant and in those circumstances having regard to the dictionary definition may “on reasonable grounds be considered offensive”. This is not based on the somewhat narrow reference in paragraph 325 of the Manual to the use of “Royal Titles or Titles of Nobility which have not been legitimately acquired” but rather the general dictionary definition of offensive. The Tribunal was correct in finding that because the Applicant has not legitimately acquired that title albeit not a royal title or title of nobility it could still be misleading and confusing to hearers and therefore be “irritating” and “highly annoying”. It was further open to the Tribunal to find that it could “cause offence” or ‘displeasure’ to the holders of such titles which have been legitimately acquired. Again, applying the meaning of offensive found in the Shorter Oxford Dictionary the Tribunal was entitled to conclude that the use of the title not legitimately acquired may be considered hurtful to the holders of legitimately acquired titles and injurious to the people of the Commonwealth of Australia if it misleads people to believe that the Applicant is the Prime Minister. Again, in my view it was open to the Tribunal to find that the use of that title may be offensive and could cause offence to both current and former Prime Ministers in Australia and other countries. I could detect no error in the Tribunal’s application of the dictionary definition in assessing whether or not the use of the title “Prime Minister” could be regarded as offensive. This was a finding open to the Tribunal and on my analysis of its reasons for decision there is no error of law demonstrated in the Tribunal’s reasons.
The Tribunal in my view has correctly applied the law and interpreted accurately the decision of the Supreme Court of Victoria in the Pell decision. The Pell decision whilst understandably providing some superficial support for the case presented by the Applicant does not apply to the present circumstances. The Tribunal in its reasoning correctly distinguished the circumstance of the Pell case from the present application and noted that the passport is a travel document endorsed by the Australian Government, issued in the name of the Governor General and at all times remains the property of the Australian Government. It is used as the Tribunal notes for travel not in Australia but in other countries which may not be “largely tolerant” or “permissive”. The Pell decision was correctly regarded by the Tribunal as not being authority for the view that the use of the word “piss” in a name may not on reasonable grounds be considered offensive. I detect no error of law in the Tribunal’s interpretation of application of the Pell decision.
Detailed submissions were made for and on behalf of the Applicant critical of the Tribunal’s decision where it made the finding that the words “Piss the Family Court” were intended by the Applicant to be and are in fact insulting to and contemptuous of the Family Court. In my view those words do no more than draw a conclusion open to the Tribunal. They do not and cannot purport to be a finding of contempt and accordingly those submissions made for and on behalf of the Applicant in relation to the manner in which the Courts deal with contempt and/or the jurisdiction of the Tribunal to deal with contempt have no relevance. I am satisfied that the expression used by the Tribunal was simply a conclusion reached on the evidence which the Tribunal was able to reach having had the advantage of hearing the evidence of the Applicant which it clearly rejected. Whilst technically it may not have needed to make the finding in reaching its conclusion that the discretion of the Respondent was properly exercised and that the words in the name were offensive, I am satisfied that reaching that conclusion it cannot be said the Tribunal made an error of law of a kind which would vitiate the decision. It is not for this Court to examine in minute detail the expressions of the Tribunal and its findings in order to determine error of law. It is clear on the proper reading of the Tribunal’s reasons that it made findings which it was entitled to make based upon the material before it and particularly including the dictionary definitions. It was entitled to find that the name “piss” is offensive having regard to the ordinary definitions. It was further entitled to ultimately find that the Respondent’s exercise of the discretion in both of the decisions which were reviewed was correct.
The more general issue raised for and on behalf of the Applicant arising out of alleged breaches of Article 19 of the International Covenant on Civil and Political Rights and/or argument suggesting that the decision in the present case somehow offends rights to free speech cannot be sustained. The Tribunal has not made an error of law in that regard. It is clear in my view that the issue of a passport is a discretionary matter well within the external affairs power of the government as provided in the Constitution. The issue of a passport is not a communication and therefore the decision to either refuse to issue the passport and/or cancel a passport does not encroach upon the Applicant’s rights to communicate and/or infringe his rights of free speech. The passport I accept remains the property of the Commonwealth and the discretion of the Respondent provided in paragraph 325 of the Manual is an appropriate discretion both in relation to material which may be regarded as generally offensive and/or cases where Applicants purport to use a title not legitimately acquired.
It was open to the Respondent and the Tribunal on review to find that the words were offensive and in particular to find that a reference to a Federal Court by use of offensive words in a name proposed for a passport may attract the discretion properly exercised by the Respondent to refuse to issue and/or cancel a passport in that name.
As the issue of a passport is not a form of communication I accept that in the circumstances as indicated that there is no breach of the International Covenant on Civil and Political Rights. In the alternative it is clear to me that in the circumstance of the present case the discretion exercised by the Respondent in any event falls within the restrictions on Article 19 of the International Covenant namely that the passports law and the discretion exercised by the Minister may be regarded as necessary both for the respective rights or reputations of others including a Federal Court and the Prime Minister and otherwise for the protection of public order. I further accept that in any event the ratification of the covenant does not make it part of the law in relation to the issue of passports though I note of course that the Parliament does have power to make binding determinations consistent with international covenants of a kind found in human rights legislation.
It is not necessary to consider further the laws that relate to legitimate expectations as I am satisfied that in the present case whilst in general terms there may be a relevant international treaty it is not incorporated expressly into the Passports Act and Regulations and in any event the conduct in the present case is not inconsistent with the treaty and that the Applicant has indeed been given the opportunity to be heard in relation to the issue.
In general it is clear from the submissions made for and on behalf of the Applicant that an attempt is made to elevate the decisions under review to a point where it is suggested there is a significant freedom of speech and/or citizens rights matter to be determined by the Court. Submissions advanced for and on behalf of the Applicant in this matter in my view were misconceived in terms of understanding the role of this Court in deciding whether an error of law has occurred pursuant to s.44 of the AAT Act and the powers and discretion of the Respondent exercised pursuant to the Passports Act, the Regulations and the Manual. The Respondent has not denied the Applicant a passport but has refused to issue a passport in the name requested on grounds which have been properly found by the Tribunal to be a correct exercise of the Respondent’s discretion.
In the present case I am satisfied that the findings by the Tribunal cannot on any interpretation be regarded as findings which would be vitiated by error of law.
The appropriate order of the Court is that the Application be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 20 March 2003
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