R v Moutiaa Elzahed (No 2) - [2018] NSWLC 13

Local Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Moutiaa Elzahed (No 2) [2018] NSWLC 13
Hearing dates: 19 - 21 February 2018
Decision date: 04 May 2018
Jurisdiction: Criminal
Before: Magistrate Huntsman
Decision:
The legislation (section 200A of the District Court Act 1973 (NSW)) is valid and the offences are proved beyond reasonable doubt.

Catchwords: CRIMINAL LAW – Particular offences – Miscellaneous offences and matters – Disrespectful behaviour in court - meaning of disrespectful behaviour in court - whether failure to stand for Judge in District Court proceedings is disrespectful behaviour in court according to established court practice and convention - freedom of political communication implied by Commonwealth Constitution - whether effectively burdened - if the freedom is burdened, whether law valid - whether law invalid pursuant to Chapter III of the Commonwealth Constitution - whether law inconsistent and invalid pursuant to section 109 of the Commonwealth Constitution
Legislation Cited: Commonwealth of Australia Constitution Act ss 75(iii), 109
District Court Act 1973 (NSW) s 200A
Judiciary Act 1903 (Cth) ss 39(1), 39(2), 75B, 79(1)
Cases Cited: APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322
Brown v Tasmania [2017] HCA 43; (2017) 91 ALJR 1089
Burns v Corbett & Ors [2018] HCA 15
Coleman v Power [2004] HCA 39
Dickson v R (2010) 241 CLR 491
Fardon v Attorney-General (Qld) [2004] HCA 46
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Hogan v Hinch [2011] HCA 4
Kable v DPP (NSW) (1996) 189 CLR 51
Lange v Australian Broadcasting Corporation [1997] HCA 25
Levy v the State of Victoria and Ors (1997) 189 CLR 579
McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178
Monis v R [2011] NSWCCA 231
Monis v R (2013) 249 CLR 92
O’Hair v Wright [1971] SAS R 436
Rizeq v Western Australia [2017] HCA 23
Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104
Wotton v State of Queensland [2012] HCA 2
Category: Principal judgment
Parties: NSW Director of Public Prosecutions (prosecutor)
Moutiaa Elzahed (defendant)
Representation:
Counsel:
D Kell SC with A Mitchelmore (for the prosecution)
D Hulme (for the defendant)
Solicitors:
Crown Solicitor's Office (for the prosecution)
Z Burrows (for the defendant)

File Number(s): 2017/00140056
Publication restriction: Nil

Judgment

Ms Moutiaa Elzahed, the defendant, is charged by court attendance notices with nine offences of disrespectful behaviour in court, contrary to section 200A(1) of the District Court Act 1973. The conduct alleged is that the defendant failed to stand when Judge Balla entered or departed from the court room, during civil proceedings in November and December 2016, in the District Court of New South Wales, to which the defendant was a party. The District Court proceedings were Moutia Elzahed & Ors v Commonwealth of Australia & Anor (Matter No. 2014/305851). The defendant was one of four plaintiffs in those proceedings by which damages were sought from the Commonwealth of Australia and the State of New South Wales. The plaintiffs (the defendant, her husband and their two sons) sought damages on the basis that they had been subjected to assault and false imprisonment during the execution of a search warrant at the plaintiffs’ residence in Sydney in October 2014.
The prosecution case is that a person present in the District Court proceedings, who was dressed throughout the proceedings in a niqab, being clothing which obscured identifying features except the person’s eyes, failed to stand for the District Court Judge in the proceedings. The prosecution allege that the person in the niqab is the defendant, Ms Elzahed, who was a plaintiff in the District Court proceedings.
The offence of disrespectful behaviour in court, under section 200A of the District Court Act 1973 (NSW), is a summary offence to be prosecuted in the Local Court of New South Wales. The applicable penalty is a fine (10 penalty units or $1100) or 14 days imprisonment.
The parties indicated, this being the first prosecution for this offence, that there were important issues of construction to be decided by the court. Prior to the hearing, the defence indicated that there were also substantial constitutional arguments to be determined. Notices were served pursuant to section 75B of the Judiciary Act 1903 (Cth), however there was no application for the constitutional issues to be removed to the High Court for determination.
The hearing was listed for three days. The evidence relied upon by the prosecution included the transcript and CCTV footage of the District Court proceedings and witness evidence. The witnesses included solicitors who had represented a party in the District Court proceedings.
On the first day of hearing defence Counsel indicated a challenge to jurisdiction, this was additional and separate to the constitutional issues to be determined. The jurisdictional arguments went to whether the proceedings had been validly commenced and in particular whether the Solicitor-General of New South Wales authorised the particular proceedings/court attendance notices before the court; whether the Solicitor General’s discretion to authorise the proceedings miscarried on the basis he did not have regard to the public interest; and whether the delegation by the Attorney General to the Solicitor General was invalid - with the consequence that the Solicitor General did not have the power to authorise the proceedings. The parties provided detailed written submissions and a number of authorities were referred to. I provided a determination, at the beginning of the second hearing day, that the proceedings were validly commenced. Detailed ex-tempore reasons were given, and those reasons will not be repeated in this written judgement.

Disrespectful behaviour in court

The offence of disrespectful behaviour in court, when asserted to have occurred in the District Court, is found in section 200A of the District Court Act 1973:

200A Disrespectful behaviour in court

(1) Offence

A person is guilty of an offence against this section if:

(a) the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and

(b) the person intentionally engages in behaviour in the Court during the proceedings, and

(c) that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention).

Maximum penalty: 14 days imprisonment or 10 penalty units, or both.

(2) In this section, “behaviour” means any act or failure to act.

(3) This section does not apply to an Australian legal practitioner appearing in that capacity.

(4) Proceedings for offences

Proceedings against a person for an offence against this section are to be dealt with summarily before:

(a) if the person is a child—the Children’s Court, or

(b) if the person is not a child—the Local Court.

(5) Proceedings for an offence against this section may be brought at any time within 12 months after the date of the alleged offence.

(6) Proceedings for an offence against this section may be brought only by a person or a member of a class of persons authorised, in writing, by the Secretary of the Department of Justice for that purpose.

(7) A Judge may refer any disrespectful behaviour in proceedings over which the Judge is presiding to the Attorney General.

(8) Proceedings for an offence against this section may be commenced only with the authorisation of the Attorney General. Authorisation may be given by the Attorney General whether or not the disrespectful behaviour is referred to the Attorney General by a Judge under this section.

(9) Evidence

An official transcript or official audio or video recording of the proceedings in the Court is admissible in evidence in proceedings for an offence against this section and is evidence of the matter included in the transcript or audio or video recording.

(10) The Judge presiding over the proceedings in which the alleged disrespectful behaviour occurred cannot be required to give evidence in proceedings before any court for an offence against this section.

(11) Contempt and double jeopardy

This section does not affect any power with respect to contempt or the exercise of any such power.

(12) A person cannot be prosecuted for an offence against this section and proceeded against for contempt in respect of essentially the same behaviour. However, nothing in this section prevents proceedings for contempt in respect of behaviour that constitutes an offence against this section.

The issues

The issues in the case are:

What is the meaning of disrespectful behaviour in court as defined in the offence;

Has the prosecution proved the elements of the offence against Ms Elzahed, the defendant;

Is the law providing the offence (section 200A) invalid law in terms of the Commonwealth Constitution; and

Should the law be construed so as to be valid according to the Constitution.

Structure of these reasons

These reasons will be structured as follows. I will detail the evidence in the proceedings and my findings of fact on that evidence. I will then consider each of the constitutional arguments and make determinations about the impact of any constitutional issues on the construction of the legislation and/or validity of the law. In light of the findings made on the constitutional issues, and the findings of fact on the evidence, I will provide a determination of whether the prosecution have proved the offences beyond a reasonable doubt.

The evidence

The prosecution sought to rely on the transcript and CCTV recordings of the District Court proceedings, and witness testimony. The defence indicated to the prosecutor that strict proof of all matters constituting the alleged offences, and strict proof of all evidentiary material, was required. The defence did not consent to the tender of the transcript of the District Court proceedings, requiring proof by the prosecution that the transcript was the transcript of those District Court proceedings. The defendant also required the prosecution to prove identity, that is, that the person in attendance at the District Court proceedings, who is alleged to have committed the offences, was the defendant.

The issue of identity and explanation of descriptive terms used

The defendant’s identity was in issue until well into day two of the defended hearing – which necessitated the prosecution calling evidence from witnesses to attempt to establish the identity of the person who was dressed in a niqab in the District Court proceedings. The evidence of those witnesses will be discussed below. After substantial evidence had been presented, in particular by the witness Ms Maamary as detailed below, defence Counsel then made a concession in relation to identity as follows:

I have instructions not to contest the issue of identification, and I hope that will shorten the evidence.… Just for your Honour, when I say I won’t contest that, I will not be asking any questions directed to that issue in cross-examination, and I don’t intend to make any submission in closing that your Honour would not find beyond reasonable doubt that the person present in court was Ms Elzahed.

The concession by defence Counsel as to identity did not constitute an admission of identity, but was an indication that identity was no longer to be actively contested. The court asked defence Counsel whether his client could now be referred to in the hearing as the defendant, rather than as “the person in the niqab” or “the woman in the niqab” because, if identity was no longer to be actively contested, one would ordinarily refer to the defendant by name or as ‘the defendant’. Defence Counsel stated:

“The witnesses can only give evidence of what they saw, that’s the issue”.

Given this issue, and because identity was not admitted, then witnesses in the proceedings continued to refer to the person in the District Court proceedings alleged to have committed the offence (being a person dressed in a niqab) as the “person in black” “person in the niqab” “woman in the niqab”. The use of these descriptions/terminology for the defendant is not the choice of this Court, and so I find it appropriate to indicate the circumstances of the case which have led to the use of those descriptors in these reasons.

Summary of evidence

Because identity was in issue, and also because the transcript was in issue, detailed evidence was required.
Ms Charlotte Moa gave evidence to establish that the transcript of the proceedings was the transcript of the particular District Court proceedings in issue. Ms Moa described the processes by which the transcript is generated by the Reporting Services Branch (RSB). Defence objections to the transcripts were withdrawn after the detailed evidence provided by Ms Moa – the evidence essentially established proof of the method of transcription, and the chain of possession of the sound recordings through to the transmission to the court and parties of the typed record. It is noted that it was open to the defence to satisfy themselves that the transcript was the transcript of the particular District Court proceedings, given that the defendant’s instructing solicitor in the current proceedings was also the instructing solicitor in the District Court proceedings, and on the evidence of witnesses in the current matter, was present in court during much of the District Court proceedings.
In relation to identity a number of witnesses gave evidence. Some of those witnesses also provided evidence about their observations of a person failing to stand for the District Court Judge.
Ms Christina Maamary, senior solicitor at the New South Wales Crown Solicitor’s office, was the supervising solicitor in the civil proceedings in the District Court. She describes the proceedings as:

“Claims for damages brought by four plaintiffs against the Commonwealth of Australia as the first defendant and the State of New South Wales as the second defendant, seeking damages for false imprisonment, assault and initially defamation, arising from the execution of a search warrant by the Australian Federal Police and the New South Wales Police Force at the premises of the plaintiffs”.

She stated there were four plaintiffs including Ms Moutiaa Elzahed. The other three plaintiffs were Ms Elzahed’s husband, Mr Hamdi Alqudsi, and her two sons, one of whom was Abdullah George, the third plaintiff. Ms Maamary confirms that Mr Alqudsi gave evidence by audio visual link (AVL) and was not otherwise physically present in the court room during the proceedings. The witness states that all four plaintiffs had the same legal representation, being the solicitor Zali Burroughs, and Counsel were Clive Evatt and Geoffrey Foster. Ms Maamary described the court room as a small court room with a bar table and two rows of public seating, and detailed the seating arrangements of the various legal representatives in the court room.
Ms Maamary observed a woman dressed in a niqab, and that only the woman’s eyes were visible. She states the woman was generally seated near the doorway of the court room in the second row of the public seating, and she was usually seated next to Abdullah George, the son of Ms Elzahed. Ms Maamary was in attendance in the court room on 29 November 2016 which was a day where she recalls there were several adjournments throughout the day, and she observed the woman in the niqab, with Mr Abdullah George, and the solicitor and counsel for the plaintiffs, go together to a conference room during those adjournment periods. The witness stated that she observed the person in the niqab to have dark eyes, she was wearing make-up, and her eyes appeared feminine. She heard the woman in the niqab speaking with Abdullah George a number of times both in English and also in Arabic. She would occasionally hear Mr George refer to the woman in the niqab as “Mum” and she would hear the woman in the niqab refer to Mr George as “Habibi” which Ms Maamary said was an Arabic word the meaning of which was well known to her. Ms Maamary stated that she has Lebanese ancestry and understands Arabic. She described the word “Habibi” as being a term of endearment meaning “my dear”, or “my love” and that it is a term used between people in a close personal relationship. She stated that the person in the niqab spoke with a woman’s voice.
Ms Maamary stated that on 29 November she observed that the woman in the black niqab did not stand when her Honour came on and off the bench, and that this happened more than once, and on at least two occasions. She was cross-examined by defence Counsel as to whether Mr Evatt, Counsel for the plaintiffs, remained seated when the Judge entered the court room. She responded “I think I would see him occasionally attempt to rise, rather than be seated”. When asked whether Mr Evatt stood, she was not sure, although she believed there were occasions when he did and occasions when he did not, she could not be certain. Under re-examination she was asked what she meant by her evidence that Mr Evatt attempted to stand and she said:

"Mr Evatt was – is elderly and quite frail and I believe at one point during the proceedings he had an injury of some sort, so found it difficult to stand, or he appeared to find it difficult to stand. I believe that he – I saw him making an effort to rise when her Honour came on and off the bench, but he was slow and it was difficult for him to stand up".

Ms Maamary was asked “you described him as elderly” and she responded:

“A. yes, and I believe he had – actually, now I can recall – at one point he came into the court and he had an injury to his hand which was bleeding. I believe that was on the 29th”.

Ms Maamary gave evidence of hearing the court officer say to all the persons present in court, when the Judge came onto and left the bench, “all stand”. She was specifically questioned by defence Counsel as to whether Mr George had a tutor in the proceedings, she agreed she knew that there was a woman who was a tutor. When it was put to her that the tutor was Mr George’s aunt she said that sounded familiar. It was put to Ms Maamary that Mr George’s tutor was Ms Elzahed’s sister, and she did not recall that. She agreed that it is her experience that tutors are sometimes present in court.
Defence Counsel questioned Ms Maamary as to whether the presiding Judge had said anything to the person about not standing, and she responded that she did not hear that occur. Nor did she hear any direction given to the person to stand, or any warning be given to them about the failure to stand. She was asked whether the failure of the person to stand obstructed the proceedings, or threatened anyone, or delayed the proceedings, or interfered with the efficient conduct of the proceedings and she indicated that it did not.
Ms Maamary was challenged about her evidence that the person in niqab wore make up. She responded that she could see the person’s eyes as the person was looking at her, and she could clearly recall some type of make-up on the eyes. The question was asked “are you aware that for a strict Muslim it is forbidden to wear make-up? and she responded “No, I’m not aware of that, and that has not been my experience”.
Mr Stephen Richardson, court officer, stated as follows. He was court officer during the District Court proceedings in court 13A of the John Madison Tower from Monday, 28 November 2016 to Friday, 2 December 2016, and on Wednesday, 7 December 2016. He was present for all those dates except 7 December 2016. Court 13A has a bar table and two rows of public seating. He has a good recollection of the trial because it was the first time since his appointment as a court officer that he had been allocated to a trial. Every time the Judge entered the court room he said loudly “Silence! All stand!” He also said these words whenever the Judge left the bench for an adjournment or at the end of the hearing day. He stated that when the Judge entered the court room after he had announced her, he had a good view of the bar table, as well as the public areas in the court room, from his location near the door where the Judge enters. When the Judge departed from the bench, he also had a good view of the bar table and public areas from the raised platform in the court room where he was located. One of the people present in the court room was a person with black clothing covering the whole of their body, including their head. The eyes of the person were visible. Mr Richardson stated:

“Having regard to the body shape and eyes of the person in black, it seemed to me that the person was a woman. This person was usually sitting in the second row of the public seating behind the barristers for the plaintiffs in the proceedings, Mr Clive Evatt and Mr Geoffrey Foster and their instructing solicitor, Ms Zali Burrows”.

Mr Richardson states that the person dressed in black attended the hearing when he was present on 28, 29 and 30 November 2016, and it seemed to him from his observations of the person’ height, body shape and eyes, that this was the same person each day. He states:

“I observed that on 28, 29 and 30 November 2016, the person dressed in black did not stand on each occasion when the Judge entered and left the bench. Also present in court during the trial was a young man, Hamza [Abdullah] George, who I am aware was also a plaintiff in the proceedings, and who gave evidence at the trial. Hamza [Abdullah] George gave sworn evidence during the trial. I also understood that Mr George was the son of the plaintiff, Moutiaa Elzahed. I observed Mr George and the woman in black were often talking to each other throughout the trial...I observed that during the period 28, 29 and 30 November 2016, Mr George usually sat near the woman dressed in black. From time to time I observed Mr George, the woman dressed in black and solicitor, Zali Burrows, in conversation. I did not hear the content of the conversation. I understood based on her attendance and positioning in the court room on 28, 29 and 30 November 2016, that the woman dressed in black was a plaintiff in the proceedings”.

In a subsequent statement of 2 February 2018 he corrected his evidence that the young man who gave evidence at the trial was Hamza George, by stating that having referred to the transcript of the trial in the District Court proceedings, he could now clearly state the person he had previously referred to as Hamza was actually Abdullah George who was also a plaintiff in the proceedings. He provides a description of that person in his supplementary statement. Nothing turned on this issue of correction of the name of the plaintiff referred to by the witness.
Mr Richardson was cross-examined by the defence Counsel and was asked whether he had observed the person he described as being in black clothing not standing when the Judge entered and exited the court room and he confirmed that he had observed this. He was asked whether he had told this person to stop failing to stand for the Judge and he indicated he had not done so. He also confirmed he had not heard the Judge giving any direction about the person’s failure to stand. He was asked whether the failure of the person to stand interrupted or obstructed the proceedings, or obstructed witnesses, harassed or intimidated anyone or appeared to cause anyone to fear harm and he said it did not. He also indicated in response to a question that he believed that Ms Elzahed was punctual in arrival at the proceedings. He said that whilst he heard the person in black sometimes speaking in the back of the court she did not do so in a loud voice. Defence Counsel questioned Mr Richardson about the plaintiff’s Counsel, Mr Evatt. Mr Richardson indicated that the main thing he recalled was that Mr Evatt struggled to move around and Mr Richardson recalled Mr Evatt asking the Judge if he could stay in the court room one lunchtime because he was unable to move around easily. Mr Richardson was asked by defence Counsel whether Mr Richardson recalled Mr Evatt not standing for the Judge and he answered that he did not recall this, although Mr Evatt may have taken a while to stand because he had two walking sticks and difficulty moving.
Ms Lynley Tretheway, senior solicitor in the employ of the New South Wales Crown Solicitors Office from 2003, gave evidence. She was the solicitor with carriage of the District Court civil proceedings. There were occasions during the District Court proceedings when Ms Trethaway was not present in the court room. She states that court 13A of the John Maddison Tower is a small court room, and behind the Bar Table are two rows of public seating. She described the usual seating arrangement of the legal representatives for the parties at the Bar Table. She states:

“Persons present in the public seating varied from day to day. However, they included a person dressed in black (who I recall left the court at some time before the last day of the hearing) and Abdullah George, the fourth plaintiff, who gave evidence in the proceedings. The person in black and Mr George generally sat in the public seating next to each other on the plaintiff’s side of the court room, behind the lawyers for the plaintiff”.

Ms Trethaway said she heard Judge Balla ask about the presence of a tutor in court, and that the Judge was advised that the tutor was not in court, so Ms Trethaway then assumed the person in black was the plaintiff in the proceedings, Ms Elzahed. She states:

“The person in black had a layer of black material that covered her face, excluding her eyes, which were not covered. This could have been a niqab”.

The witness gave evidence of Mr George attending court, sitting behind the plaintiffs’ lawyers, talking with the plaintiffs’ legal team and also being seated beside the person dressed in black. When another plaintiff gave evidence in the District Court proceedings by audio visual link (AVL) the person in black and Mr George sat next to each other, and the witness on AVL appeared to acknowledge the person in black and Mr George. Ms Trethaway was referred to the CCTV footage and stated her view that it showed Mr George and the person in black, respectively, waving in the direction of the AVL screen in the court room, and she states this would have been when the witness was giving evidence by AVL. She states that to the best of her recollection the person in black sat in the second row of seats at the end closest to the plaintiffs’ lawyers for the majority of the time she was in court and this was closest to the door of the court room. She recalls one day when the Judge was leaving the bench, the Judge stopped and looked in the direction of the person in black, and the witness noticed the person in black was not standing. She recalls that the Judge may have said something when she came back on the bench but does not recall what the Judge said nor what day this occurred. Annexed to her written statement, at “A” and “B” , are stills of the CCTV footage from the court room which appear to show the male person identified as Mr George, and the person in black clothing, each waving from their seats in the back of court.
Under cross-examination by defence counsel Ms Trethaway was asked whether she observed Mr Evatt to stand when the Judge entered the court room and she could not recall. She was referred to the occasion when she saw the person in black not standing, and it was put to her that this did not disrupt the proceedings. She responded:

“I referred to one occasion when the Judge was walking off the bench, she stopped and looked at the person and I then saw the person was not standing”.

She agreed that it didn’t disrupt the proceedings, but noted “Her Honour was going off the bench at that time” so it could not therefore disrupt the proceedings. She was asked by Defence Counsel whether she recalled the Judge saying anything to the person in black about not standing, and she replied she cannot now recall. She was asked whether she recalled the Judge directing the person to stand, and the witness responded that she could not now recall.
Ms Aleesha Nathan, solicitor employed by the New South Wales Crown Solicitors Office was assisting Ms Trethaway in the District Court proceedings. Ms Nathan noted the claim was heard by the District Court on 28, 29 and 30 November and 1, 2 and 7 December 2016, and that judgement was delivered on 15 December 2016. Ms Nathan described court room 13A, where the District Court proceedings were taking place, as consisting of a raised bench where the Judge presided, with the associate in front of the Judge and the court officer to the right of the Judge. There was also a court monitor. In front of the bench were the Bar table and behind the Bar table were two rows of public seating for solicitors, litigants, members of the public and media. She described the legal representatives present and where they were seated. She stated:

“Also present in the court was a short person dressed in a dark coloured Niqab. This person’s face was covered, but her eyes were uncovered and visible. I don’t recall seeing the person’s hands. The person had gloves on, which I saw when the person in the niqab adjusted her clothing. The person in the niqab generally sat at the left end of the second row of public seating. On one occasion, I heard the person dressed in the niqab speak. I heard this person speak while video of the execution of the search warrant was being played to one of the plaintiffs who was giving evidence. The person in the niqab said seemingly to herself words in English to the effect: “why are we wasting time watching videos?” or “we’re not here to watch videos”. I perceived that the tone of the person’s comments sounded annoyed and frustrated, the voice was low and raspy, but it was obviously a female voice”.

Ms Nathan described one of the plaintiffs, who was Ms Elzahed’s son, being in attendance in the court room throughout the hearing, and also that he gave evidence on 28 and 29 November 2016. This was the son of Ms Elzahed who physically attended court (Mr Abdullah George). When in court and not giving evidence, he usually sat next to the person in the niqab and occasionally in the front row of the public seating. He would usually enter court with the person in the niqab. Ms Nathan also gave evidence of seeing Mr George and the woman in the niqab walking together along Elizabeth Street towards the entrance to the John Maddison Tower. She observed the son and the person in the niqab talking to each other in court. She states:

“At all times I was of the view that the person in the niqab was the first plaintiff, Moutia Elzahed. I believed the person in the niqab to be a woman because the person was wearing a woman’s garment and because the person had a female voice; and I observed her to speak with Ms Burrows on several occasions, which led me to believe that she was Ms Burrow’s client. I believed the person in the niqab was the same person on each occasion due to the fact that the person was wearing the same solid garment and it appeared to be of the same size. The person in the niqab was also usually with Ms Elzahed’s son on each occasion”.

Ms Nathan also gives evidence of everyone in the court room standing when Judge Balla entered the court room, and recalled observing on one occasion when the Judge entered on the left the court room, that the son (Mr George) stood up, but the person in the niqab did not stand up. On this occasion, the son was in the front row of the public seating and the person in the niqab was behind him.

“I made this observation after it was brought to my attention that the person in the niqab was not standing when Judge Balla entered or left the court room. I cannot recall who brought this to my attention”.

Under cross-examination by defence Counsel Ms Nathan was asked whether she recalled occasions when the person in the niqab did not stand and she confirmed she observed this on at least one occasion but couldn’t recall if she observed other occasions.
Ms Catherine Mulhall, Sheriff’s Officer, identified the CCTV footage which was played to the court. It clearly shows the person in black clothing (clothing which appeared to be consistent with a niqab) not standing for the Judge. The CCTV footage shows a small, rather cramped, court room with all people in the body of the court - including the legal representatives at the bar table and those people in the public seating rows - being situated very close together. All (with the exception of the defendant when she is visible in the footage) visibly rise in unison on the entry or departure of the Judge. On several occasions there is one person who is seen to make no move at all to stand, and who remains seated, and this is the person dressed in black. I accept on the evidence overall in this matter that the person in black shown in the CCTV footage, is the same person as the person in black or person/woman in the niqab, described by the witnesses in these proceedings.
The prosecution called an expert witness as to court room practice and convention, namely Mr Blanch AM QC. The written statement of Mr Blanch indicates he was asked specific questions as to whether there is an established court practice and convention in the District Court when a Judge enters and/or leaves a court room. Mr Blanch’s statement also details his considerable experience as a lawyer and judicial officer. Mr Blanch’s experience includes as a solicitor, barrister, Queens Counsel, Crown Advocate, Public Defender and Deputy Senior Public Defender, Director of Public Prosecutions, and as a judicial officer for some 20 years including as Chief Judge of the District Court of New South Wales, Justice of the Supreme Court of New South Wales (including Court of Appeal and Court of Criminal Appeal). Indeed in this matter his considerable experience and expertise was not in question.
Mr Blanch AM QC states that the practice and convention in New South Wales throughout his 50 years’ experience as a lawyer and judicial officer, has been that persons present in a court room stand when a judicial officer enters or leaves the court room. He states the only exception to this practice is when a person is physically incapacitated in a way which prevents them from standing. This practice and convention applies to legal practitioners, parties and members of the public. He further states:

“In my opinion, the practice and convention of standing when a judicial officer enters or leaves a court room is a mark of respect to the court. A failure of a person to stand is disrespectful to the court”.

Mr Blanch AM QC was subjected to lengthy cross-examination by defence Counsel, most of which consisted of putting general propositions to Mr Blanch about court room behaviour. A number of hypothetical examples were put to Mr Blanch and he was asked whether each example would constitute disrespectful behaviour. Examples given included - nodding to the court on entry or exit, swearing at the Judge, threatening the Judge, physically assaulting the Judge’s associate, disobeying a direction. Other issues hypothetically discussed were whether there were varying degrees of disrespectful behaviour, whether it was more serious for someone legally trained to disrespect the court than one who is not legally represented, whether it is a mark of respect to have eye contact with the Judge when addressing the Judge, and whether it is disrespectful to remain seated when addressing the Judge or making a submission to the Judge.
It was put to Mr Blanch AM QC:

“Q. Simply not standing in court is of a lesser degree of disrespect than swearing at the Judge, threatening the Judge, physically assaulting the Judge’s associate and disobeying a direction?”
[And Mr Blanch answered:]
”A. They’re all sorts of variation of contempt of court. Some of them are less serious, some of them are more serious”
“Q. But merely not standing in court is less serious than those kinds of behaviour?
A. If it happened on one occasion. If it happened on two occasions or more, if it became known to the person that they should be standing, then, of course, the seriousness grows. But the first time perhaps is obviously a less serious form of contempt”
[Defence counsel also asked:]
“Q. Are you aware that there are certain religious groups whose sincere religious beliefs dictate that they should not stand when a Judge enters and exits?
A. No, I’m not aware of it at all”.

Generally Mr Blanch’s evidence was also to the effect that disrespectful behaviour in court would most likely be more serious if it disrupted the proceedings, or if it was done in disregard of a direction of the Judge, and another factor would include whether the Judge warned the person not to do it. He also stated that behaviour can be disrespectful even if it does not interrupt the proceedings, and behaviour could be disrespectful even if the Judge was not aware of the behaviour. He was also of the opinion that relevant to the seriousness of disrespectful behaviour was the intention of the person doing the behaviour. He indicated that criminal offences require a guilty mind. He acknowledged that people make political points in court, and that the court room is a place where people are entitled to make submissions. Mr Blanch stated that where odd or unusual submissions are made, this does not make the submission disrespectful. He also described the court practice of judicial tolerance for rude behaviour arising from the circumstances of the person or case before the court, for example abuse of the Judge by a person being sentenced to a term of imprisonment. He detailed that the usual practice is that no action is taken in relation to the abusive behaviour.
Part of the transcript of the District Court proceedings was relied upon by the prosecution, being the record of a discussion between Judge Balla and Mr Evatt who was counsel for Ms Elzahed in the District Court proceedings. Page 365 of the transcript states:

HER HONOUR: Mr Evatt, I see the first plaintiff is here again today. I noticed on Wednesday, and I see again today, that the first plaintiff doesn’t stand when I come onto the bench or when I leave the bench. Is there a reason?
EVATT: I’m afraid so, your honour.
HER HONOUR: are you going to tell me what it is?
EVATT: I’d just better check. I know the reason. I just want to check. Your Honour, is due to religious belief, your Honour, but I’m not satisfied with that. Would your Honour just excuse me again. She is a Muslim, your Honour. A strict Muslim and according to my instructions, she won’t stand for anyone except Allah, which I’m not particularly happy with, your Honour.
HER HONOUR: The reason I bring it up is that no doubt you have made your client aware of the recent offence which has been created which may relate to such conduct. Obviously the decision as to whether any action will be taken against her after the case is over, won’t be made by me, but will be made by others. I just wanted to check she’s received advice, bearing in mind, it may well be that each occasion on which she doesn’t do it may be a separate offence. I just wanted to make sure that she’s received advice, Mr Evatt. Thank you. Can we continue?
EVATT: I’m just a little bit embarrassed, your Honour, because I haven’t been able to stand myself, your Honour, but I have another reason for that, your Honour.
HER HONOUR: Yes. Of course. I understand that, Mr Evatt.

Defence evidence

The defendant did not give evidence in the proceedings and no witnesses were called in the defence case. Two documents were tendered by the defendant being information/web pages from the Internet. One was an excerpt from the Law Access website entitled “What to do, say and wear in court” and the other was the Local Court website document entitled “First day in court”.

Findings of fact on the evidence

I am satisfied on the basis of the transcripts of the District Court proceedings that the named defendant in this matter was a plaintiff in the specified District Court proceedings. I am also satisfied on the evidence overall in this matter that the defendant in the current proceedings, Ms Elzahed, was the person in black clothing who attended the District Court proceedings, as described by the witnesses in this matter. I am satisfied on the evidence overall that the defendant was the plaintiff named in the District Court proceedings and that the other three plaintiffs were members of her immediate family. I am satisfied that during the District Court proceedings the legal representatives who were witnesses in these proceedings, observed Ms Elzahed, defendant in the current proceedings, as being closely connected to the solicitor and Counsel representing the plaintiffs in the District Court proceedings, as well as being closely associated with one of the plaintiffs who was present in court and gave evidence as a witness to the District Court, being Abdullah George, the son of Ms Elzahed. I am satisfied that witnesses heard the person in black clothing in the District Court proceedings, speaking in English as well in Arabic, and I am satisfied that the person sounded to those witnesses as having a female voice.

I am satisfied that the witness, Ms Maamary, being the solicitor from the Crown Solicitor’s office, who can speak Arabic as well as English, heard the defendant, Ms Elzahed, and Mr George, talking to each other in English as well as Arabic, and I am satisfied that the same witness heard them refer to each other as “Mum” and “Habibi”. The only inference that arises from all of this evidence is that the person in black clothing observed in the District Court proceedings as detailed in the evidence in this case, was the plaintiff in those proceedings, being Ms Elzahed, the defendant in this case. I note that defence Counsel indicated he would not be submitting that I would not be satisfied beyond reasonable doubt that the defendant before the Local Court, Ms Elzahed, was the person in the District Court proceedings. I am so satisfied as the identity of the person in the District Court proceedings being the defendant, Ms Elzahed, for the reasons detailed.
The CCTV footage clearly depicts that the defendant, Ms Elzahed, declines to stand for the Judge on several occasions, and the CCTV footage (which is date and time stamped) shows the defendant not standing when Judge Balla enters or leaves the court room on the occasions specified in the court attendance notices. I therefore find as a fact that the prosecution have proved that on the nine occasions the subject of the court attendance notices the defendant, Ms Elzahed, failed to stand for the Judge as specified. Indeed no submissions were made by defence Counsel that the evidence did not support this conclusion.
These findings of fact are established beyond reasonable doubt.
On the evidence of Mr Blanch AM QC, I am satisfied that to stand when a judicial officer enters and leaves the court room, in response to the court officer’s verbal command “all stand”, is an established court practice and convention. On the evidence in the current matter I am satisfied that it would have been well understood that this was the practice and/or convention by all who were present in the small court room, Court 13 A of the John Maddison Tower, at the time of the District Court proceedings. I so find because the CCTV footage clearly shows that everyone (not including the defendant) stands in unison in the small cramped space each time the Judge enters and leaves the court room. I also note the evidence that Mr George, Ms Elzahed’s son, stood for the Judge on an occasion when Ms Elzahed was seated directly behind him. In my view the evidence supports the conclusion that Ms Elzahed knew from the repeated conduct of everyone around her, including her son, the expected behaviour was that she stand for the Judge, as the Judge entered and left the court room. I am satisfied that the only inference to be drawn from all of the evidence is that Ms Elzahed was so aware, and that she chose to not stand. As such I find the prosecution have established that the failure to stand was an intentional act of the defendant, and that this is proved beyond reasonable doubt. This finding is also supported by the words of her legal Counsel to the Judge, set out above.
Defence Counsel’s questions to various witnesses, as detailed above in these Reasons for Decision, appeared to be suggesting that his client, the defendant, would have been observing Mr Evatt not standing on occasions when the Judge entered and left the court room. It appeared that Counsel was raising a possibility that Ms Elzahed would not be aware of the requirement to stand given that her own legal counsel was not standing on occasion. On the evidence of the witnesses in this case, of Mr Evatt being frail and elderly and having difficulty in his movements, and noting the evidence of Mr Richardson, court officer, that Mr Evatt was using two walking sticks and had difficulty moving, then I consider that this possibility does not arise on the evidence. This is particularly so given the evidence that her own son, Mr George, stood for the Judge and that on at least one occasion Mr George did so when he was seated directly in front of his mother, the defendant. The CCTV footage shows all persons present in the court standing for the Judge and the possibility that the defendant was misled because her legal counsel did not stand does not on all of the evidence arise. The evidence is that Mr Evatt was frail and had difficulty standing and moving about, and this was clearly evident to all, and would also have been clearly evident to the defendant.
It appeared for a time from the questions of defence Counsel that he was seeking to raise the possibility that the person in the niqab may have been a tutor in the proceedings (there was a tutor who was Ms Elzahed’s sister). This inference did not arise on the evidence, given the testimony of the witness, Ms Trethaway, that it was indicated to Judge Balla that the tutor was not physically present in court. I also note that defence Counsel did not submit that such an inference arose.
Defence counsel indicated at various points in the proceedings, both in written submissions and also in questions put to witnesses, that it was a genuine religious belief of his client to not stand for a Judge. There was no evidence presented that this was a genuine religious belief held by the defendant – she gave no evidence in the proceedings, of any genuinely held beliefs. The words of her legal Counsel in the District Court proceedings, that she stands for no one but Allah, do not provide evidence that the defendant possesses a genuine religious belief that she should not stand for a Judge in legal proceedings. Nor did the defendant provide any evidence of her genuine religious belief that she cannot for religious reasons stand for anyone but Allah. Rather the evidence is that she was present as a party in the court, seeking the adjudication of the Judge/court on her claim. The statement of her Counsel to the District Court, set out above, indicates that he was instructed that it is due to her religious belief and “according to my instructions she won’t stand for anyone except Allah”. However, there is no evidence before the court that she genuinely held any particular belief, religious or otherwise.
No evidence was presented that the teachings of Islam compel this conduct, nor was any evidence presented by the defendant of her own genuinely held religious beliefs. In detailing my findings of fact on the evidence, I must note that while defence Counsel makes submissions as to a genuine religious belief held by his client, there is no evidence from the defendant about any genuinely held religious belief. There is no evidence before the court upon which any finding of fact can be made about the defendant’s beliefs.
I am satisfied on the evidence given by Mr Blanch AO QC that a failure to stand for a Judge is behaviour which is disrespectful to the court, and to the Judge presiding over the proceedings, according to established court practice and convention. I find also on the evidence in this matter that the act of intentionally not standing for the Judge, when all around are so standing, is behaviour which communicates lack of respect for the Court and the Judge, and is behaviour that is disrespectful to the Court and the Judge presiding over the proceedings, according to established court practice and convention.

Constitutional issues

The defendant raised three constitutional arguments by which it was submitted that the law was invalid.

The first constitutional argument - Given the implied freedom of political communication, is the law (s 200A) invalid and how should the law be construed?

Detailed oral and written submissions were made on this point and a number of authorities were referred to. I will not summarise all of the submissions or authorities in these Reasons for Decision, but have carefully considered same in reaching determinations in this matter.
When it is in issue that a law burdens the implied freedom of political communication, which is a freedom implied by the provisions in the Commonwealth Constitution for representative and responsible government, a court will decide whether the law is valid or invalid, and the construction of the law, according to tests established by decisions of the High Court of Australia. It is settled that the test developed by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25 (Lange), as modified by Coleman v Power [2004] HCA 39 (Coleman) applies. The application of the test to any given law can be complex as is indicated by the review of the authorities below. The first step to be undertaken in resolving the validity of a particular law is the construction given by the court to the law or statutory provision in issue. Firstly, however, the freedom implied by the Constitution needs to be understood.

What is the implied freedom?

The High Court in Brown v Tasmania [2017] HCA 43; (2017) 91 ALJR 1089 (Brown) described the implied freedom as follows (per Gageler at [162]):

“For reasons I have attempted to explain in the past , the entirety of the analytical framework set out in Lange and refined in Coleman needs to be understood as a reflection of the underlying reason for the implication of freedom of political communication. The reason for the implication lies in the protection of political communication on which depends the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally prescribed national system of representative and responsible government to which there is added a mechanism for constitutional change in which electors through referenda participate directly in the legislative process [my italics]”.

And in the joint judgement of Keifel CJ, Bell and Keane JJ in Brown (at [88], [90]):

“88 It is necessary to keep firmly in mind that the implied freedom is essential to the maintenance of the system of representative and responsible government for which the Constitution provides. The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression [my italics].
…
90 This Court has said more than once that the freedom spoken of is not a personal right or freedom”.

It is also stated per Gordon J in Brown at [312] (a dissenting judgement but not on this issue):

“… The freedom is implied because ss 7, 24 and 128 of the Constitution (with Ch II, including ss 62 and 64) create a system of representative and responsible government. It is an indispensable incident of that system because that system requires that electors be able to exercise a free and informed choice when choosing their representatives, and, for them to be able to do so, there must be a free flow of political communication within the federation [my italics]”.

See also French CJ in Monis v R (2013) 249 CLR 92 (Monis) at [2]-[3].
It is therefore established that there is an implied freedom of political communication guaranteed by the Commonwealth Constitution, and that laws which effectively burden the freedom may be invalid.

What is a political communication?

Again, the decisions of the High Court provide guidance:

“Since Levy v Victoria was decided contemporaneously with Lange, there can have been no doubt that political communications include non-verbal political communications and that non-verbal political communications include assembly and movement for the purpose of political protest . A law which has the direct and substantial effect of prohibiting or limiting assembly and movement for the purpose of political protest is accordingly a law which effectively burdens freedom of political communication” (per Gageler J in Brown at [182]).

The authorities also recognise that political communications can involve offensive or disrespectful communications. It is recognised that political communications can be at times made with lack of courtesy or even offensively. For example, Hayne J stated in Monis at [220]:

“The elimination of communications giving offence, even serious offence, without more is not a legitimate object or end. Political debate and discourse is not, and cannot be, free from passion. It is not, and cannot be, free from appeals to the emotions as well as to reason. It is not, and cannot be, free from insult and invective. Giving and taking offence are inevitable consequences of political debate and discourse. Neither the giving nor the consequent taking of offence can be eliminated without radically altering the way in which political debate and discourse is and must be continued if "the people" referred to in ss 7 and 24 of the Constitution are to play their proper part in the constitutionally prescribed system of government”.

As was noted by Bathurst CJ in (Sunol v Collier (No. 2) [2012] NSWCA 44 (Sunol) at [42] and [43]:

Although it is correct, as the Attorney General submitted, that the implied freedom is an implication drawn from s 24, s 64 and s 128 and related sections of the Constitution, the potential scope of such communication is wide. In Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 124, Mason CJ, Toohey and Gaudron JJ stated that the implied freedom covers "all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about". In Hogan v Hinch supra at [49], French CJ stated that the "range of matters that may be characterised as 'governmental and political matters' for the purpose of the implied freedom is broad" and "arguably include social and economic features of Australian society"”.

See also Wotton v State of Queensland [2012] HCA 2 at [25]-[26].

What is the meaning of effectively burden?

The expression "effectively burden" refers to both the legal and practical effect of the law, and that the law prohibits, or puts some limitation on, the making or the content of political communications (per Hayne J in Monis at [108]). I must focus on what the impugned law does, not how an individual might want to communicate (per Bathurst CJ in Sunol at [24], citing a number decisions of the High Court).

The test to apply

The High Court has developed, in a body of case law, the test to apply. In Monis the joint judgement of Crennan, Kiefel and Bell JJ sets out the test at [276]-[282]. The Court stated that the test to be applied in determining whether a statute infringes the freedom (‘The Lange test’), as subsequently modified , is in these terms (at [276]-[277]):

“First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
Some observations are necessary respecting the Lange test as stated. It will be observed that there are two objects spoken of. …. the first object or the "legitimate end" is the maintenance of the constitutionally prescribed system of government… it is said to be necessary that a law be reasonably appropriate and adapted to serve "a legitimate purpose" or "a legitimate end". Here reference is made to the second object, the impugned law's own object. That end, and the means by which it is sought to be achieved, must be compatible with the aforementioned constitutional imperative of the maintenance of the prescribed system of representative government” (refer also to further detail on the test at [278] – [282]).

Other useful judicial statements of the test can be found in the judgement of Hayne J in Monis at [102] – [103], and [105]-[106].
The test was confirmed by the High Court in Brown, where the Court indicated that the three stage proportionality test set out in the decision of McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (McCloy) was not a test required to be applied (per joint judgement in Brown of Keifel CJ, Bell and Keane JJ (Nettle J agreeing at [277], Gageler J agreeing at [155-158], Gordon J states that McCloy did not alter the Lange test at [471], [473], and Edelman J not deciding). In their joint judgement Keifel CJ, Bell and Keane JJ state:

The commencing words of Questions 2 and 3 stated in McCloy should read:
2. If "yes" to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

Gageler J in Brown, in agreement with the conclusions of Keifel CJ, Bell and Keane JJ, provided useful observations as to the analytical framework (at [155]) and agreed that McCloy needed to be restated to conform with Lange and Coleman (at [156]).
It is therefore clear that it is the Lange test, as modified in Coleman, and confirmed in Brown, which applies, rather than there being a requirement to engage in the three stage proportionality testing provided in McCloy. Because defence Counsel in written submissions based some constructional arguments on the three stage proportionality testing in McCloy, it is important to state in these Reasons for Decision that it is not a requirement to apply that part of the decision in McCloy.

Legitimate object or end

The test requires that to be a "legitimate" object or end, that object or end must be compatible with the constitutional system of representative and responsible government. Because freedom of political communication is an indispensable incident of the constitutionally prescribed system of government, an object or end can be compatible with the system only if it is compatible with the freedom (refer Hayne J in Monis at [127], and [136]-[138]).

Reasonably appropriate and adapted

If a law which effectively burdens political communication pursues a legitimate end, the second Lange question asks whether the means chosen to achieve that end are reasonably appropriate and adapted to achieving it in a manner compatible with the system of representative and responsible government (so stated by Hayne J in Monis at [144]). It is necessary to consider the legal and practical effect of the impugned law.

Some examples in the cases

The decided cases show that the protection of reputation, the prevention of physical injury, the prevention of violence in public places, the maintenance of a system for the continuing supervision of some sexual offenders who have served their sentences, "community safety and crime prevention through humane containment, supervision and rehabilitation of offenders", and "the imposition of conditions [a parole board] considers reasonably necessary to ensure good conduct and to stop [a] parolee committing an offence" are legitimate objects or ends compatible with the maintenance of the constitutionally prescribed system of government. These are no more than examples of legitimate objects or ends that have so far been identified in the cases. The list is not closed (Hayne J in Monis at [129]).
In Levy v The State of Victoria and Ors (1997) 189 CLR 579 (Levy) the High Court considered the validity of a law regulating duck shooting, the regulation in issue prevented persons other than those with valid game licences from entering a prohibited hunting area between certain hours on two specified dates. The plaintiff was charged with breaching the regulation after so entering, the reason he did so was to protest the Victorian hunting laws (he was opposed to the hunting of ducks and exposure of other wild species to harm that the hunting allowed). The majority judgements held that the implied freedom of communication protects non-verbal conduct as well as verbal communications, and Gaudron J included freedom of movement. The case decided that the regulation was not invalid by reason of any implied freedom as it was reasonably and appropriately adapted to the protection of individual or public safety.

McCloy involved a challenge to legislation which imposed caps on political donations and which made it an offence for a person to make a political donation on behalf of a prohibited donor which was defined to include a property developer. The majority of the High Court held that the law did not impermissibly burden the implied freedom.
In Coleman the parties had agreed that the law burdened the freedom, and so the issue for determination in the High Court on appeal was the narrow issue of whether the law was reasonably adapted to serve the legitimate end of public order in a manner that was compatible with the system of representative and responsible government prescribed by the Constitution (per McHugh J at [35]). The case dealt with a public order offence under section 7 of the Vagrants Act (Qld). The court found that the law burdened the freedom and construed the law so as to limit its operation so that the law was then reasonably adapted to serve its legitimate object of public order in a manner that was compatible with the system of representative and responsible government prescribed by the Constitution.

Discussion of the first Constitutional argument – is the law invalid by reason of the implied freedom?

The authorities indicate the following matters must be decided in this case:

What is the construction to be given to section 200A?

Does the law effectively burden the implied freedom?

Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

Is the law reasonably appropriate and adapted to advance that purpose/legitimate object in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

I apply the guidance provided by the authorities set out above to assess the validity of the statute in the present case. I have considered the written submissions/submissions in reply provided by defence Counsel and Counsel for the prosecution.

The parties’ contentions

Defence Counsel submits I should find that the law (the offence of disrespectful behaviour in court provided in section 200A(1)) impermissibly burdens the implied freedom and is therefore invalid. Alternatively, defence Counsel submits that the word “disrespectful” should be read down so as to only criminalise seriously disrespectful behaviour. Defence Counsel submits that this is consistent with the approach of the High Court in Coleman and Monis.
The prosecutor initially submitted that the law did not burden the implied freedom, however in oral submissions conceded that the law burdens the implied freedom although invited this court to disagree with that concession if so minded. However the prosecution further submitted that the law, whilst burdening the implied freedom, was otherwise valid as the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and also the procedure of submitting a proposed amendment to the Constitution to the informed decision of the people. It is submitted that there is no basis for construing the legislation other than on its clear terms, that is, there is no basis to read down the meaning of the word “disrespectful”, because the law is reasonably appropriate and adapted to achieving the legitimate object or end.
The legitimate object or end of the impugned law must be achieved in a manner which is compatible with the maintenance of the system of representative and responsible government for which the Constitution provides.

How should s 200A be construed?

The first question I must address is whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation or effect. This requires that I construe the law.
As was stated by Bathurst CJ in Monis v R [2011] NSWCCA 231 at [25] (Monis (CCA Decision):

“The first step in assessing the validity of any given law is one of statutory construction. Further, so far as different constructions appear to be available, a construction is to be selected which would avoid, rather than lead to, a conclusion of constitutional invalidity: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [11]”.

Subsections 200 A(1) – (3) of the District Court Act provide:

200A Disrespectful behaviour in court

(1) Offence

A person is guilty of an offence against this section if:

(a) the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and

(b) the person intentionally engages in behaviour in the Court during the proceedings, and

(c) that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention).

Maximum penalty: 14 days imprisonment or 10 penalty units, or both.

(2) In this section, “behaviour” means any act or failure to act.

(3) This section does not apply to an Australian legal practitioner appearing in that capacity.

The words of the section limit its operation – it does not apply to an Australian legal practitioner who appears in that capacity in court; it requires the person to intentionally engage in the behaviour; and it limits disrespectful behaviour to behaviour that is disrespectful according to established court practice and convention.
In construing the meaning of section 200A(1) I must consider section 200A in its entirety. The commencement of any prosecution for any alleged breach of the law is further limited by the provisions of subsections (6) and (8) which provide:

Subsections (6) and (8) arguably provide a requirement for careful consideration of whether to prosecute - the second reading speech notes the intention that the Crown Solicitor’s Office will have regard to prosecution guidelines and will consider discretionary factors in balancing whether prosecuting the matter is in the public interest.

The meaning of “disrespectful behaviour”

The starting point is that words used in a statute should be given their ordinary meaning.
The Macquarie dictionary defines ‘disrespectful’ as “adjective characterised by disrespect; having or showing disrespect”.
The Oxford English Dictionary defines ‘disrespectful’ as “the opposite of respectful; full of or manifesting disrespect”.
The Macquarie dictionary defines ‘disrespect’ as:

“noun 1. lack of respect; disesteem; rudeness.
verb (t) 2. to regard or treat without respect; regard or treat with contempt or rudeness”.

The Oxford English Dictionary defines ‘disrespect’ as:

“noun. Want of respect, courteous regard, or reverence.
verb trans. The reverse of to respect; to have or show no respect, regard, or reverence for; to treat with irreverence”.

“Disrespectful” , as used in section 200A, is an adjective describing a defendant’s behaviour, the meaning of “disrespectful” imports “disrespect” in both dictionary definitions: “showing disrespect”/ “manifesting disrespect”.
Having regard to the meaning of the word “disrespect” which is common to the Macquarie Dictionary and the Oxford English Dictionary, being “lack of respect”/ “want of respect”, one wonders how “disrespectful behaviour” could be judged without provision of a context as to what is respectful. It is noted that the legislature has provided a mechanism for ascertaining what is disrespectful, or by which the absence of respect can be discerned, namely “according to established court practice and convention”.
I also note that the definition of “disrespect” in the Macquarie Dictionary is wider – it includes the concept of rudeness and lack of esteem, as follows: “disesteem; rudeness (noun)” and “to regard or treat with contempt or rudeness (verb, t2).”
The Macquarie Dictionary imports ideas of contempt/ rudeness and disregard; the Oxford English Dictionary refers to the absence of respect/ courteous regard/ reverence; however in the verb definition refers to “treat with irreverence”.
The meaning of disrespect is absence of respect. The Macquarie Dictionary defines ‘respect’ as:

“noun. the condition of being esteemed or honoured.
verb (t) 7. to hold in esteem or honour: to respect one's elders”.

Having regard to the definitions set out above, I determine that “disrespectful behaviour” is behaviour which demonstrates a lack of respect, being a lack of holding in esteem or honour. This is the primary meaning. Given the further meanings attributed by the Macquarie Dictionary set out above, disrespectful behaviour also includes behaviour which conveys rudeness or contempt.
Defence Counsel submitted that the decision of the Supreme Court of South Australia in O’Hair v Wright [1971] SAS R 436 was relevant. This was a case on appeal from a magistrate and involved consideration of whether a defendant’s refusal to recognise the authority of the court was conduct disrespectful to the court pursuant to section 46 of the Justices Act 1921 – 1969. The court held that the statement “I refuse to recognise the authority of this court” did not, in itself, amount to conduct disrespectful to the court. Section 46 of the Justices Act provided that any person who “conducts himself disrespectfully to the justice or justices during the sitting” of a court shall be guilty of an offence. The court noted that the power given to the court under section 46 should be sparingly used, and not used to punish people who may not have acceptable views, however extraordinary such views may be:

“I would not wish to think that an anarchist could not safely appear before the court and receive a hearing, even though he chose to say that he had no belief whatsoever in law or order”.

It is submitted that the word “disrespectful” is a word of wide general application, similar to the word “offensive” which was subject of consideration in Monis, and the word “insulting” which was subject of consideration in Coleman. In Monis it was observed that the word “offensive” was of wide meaning and subject to an objective assessment of what a reasonable person would consider “offensive”. Section 200A provides a different system for determining whether behaviour is ‘disrespectful’ and that is “according to established court practice and convention”. The law also provides for significant control of how prosecutions may be commenced and conducted, and indeed requires the consent of the Attorney General to prosecution. In construing the law I must consider the entire provision which includes a decision making process as to whether proceedings should be commenced.
The law is also restricted in its operation, as it only applies to proceedings in court, it does not restrict reporting of those proceedings outside of court, nor does it criminalise discussions about what occurs in court. It does not restrict public discourse. The law operates to criminalise disrespectful behaviour in court according to established court practice and convention, when it occurs during court proceedings and when it is the behaviour of parties or witnesses before the court. It does not apply to others present in the court room, including members of the public gallery. It is noted that the court can eject those who act disrespectfully in the public gallery from the court room however the court may not eject a party or witness in proceedings before the court for disrespectful behaviour that may fall short of contempt of court.

Does the law, as construed, effectively burden the implied freedom?

The first question to be determined is whether the law, as construed, effectively burdens the implied freedom of communication about government or political matters in its terms, operation or effect. I must carefully consider, given that the freedom can be burdened by a law which affects behaviour and freedom of movement, whether a law which criminalises disrespectful behaviour in a court room burdens political communication.
I agree with the submissions of the parties in the current matter, which are supported by the authorities set out above, that political communications can sometimes be made in a manner which is considered offensive to others. Political beliefs are often strongly felt. A law can burden communications on political matters even if the law does not specifically target communications, so much is clear from the authorities referred to above. The impugned law in the present case addresses behaviour in court, and in particular disrespectful behaviour to the court or judge presiding over the proceedings according to established court practice and convention. There is no evidence in the present matter that established court practice and convention considers passionate arguments, political opinions, agitation of political causes in court by the parties, to be disrespectful behaviour in court. Indeed the evidence given by the expert witness Mr Blanch AM QC, clearly revealed the practice of courts to tolerate high levels of rudeness, including abuse of the judicial officer, where it was evident that the abuse arose from the position of the party before the court (such as just having been sentenced to gaol). The courts not infrequently deal with parties who agitate their cause in court and in doing so dispute the authority of the Parliament as well as the courts.
The offence (section 200A(1)) does not cause a halt to legal proceedings when it is alleged to have been committed; the parties’ ability to continue to address the court is not interfered with, the proceedings do not cease. At the time of the alleged disrespectful behaviour in court no action would be taken – the law will only lead to a prosecution well after any court proceedings have been finalised and upon authority/consent of the Attorney General. Nor does the law prevent a party accessing the court, commencing proceedings in a court, representing themselves in court, addressing the court, and finalising their court proceedings. The law does not provide for the presiding Judge to unilaterally take any action in relation to disrespectful behaviour in court.
No communications which are occurring in the court proceedings are ceased by the legislative provision, nor is the media prevented from continuing the discussion in the community. Court proceedings are generally open to the public, and all that is communicated inside a court can be reported and further communicated to the public. The only way that communication in the court proceedings could be seen to be restricted by the law is through a deterrent effect – this would occur where a party was worried about getting into trouble for disrespectful behaviour in court and therefore did not make a submission in support of their case, or provide evidence in support of their case, as strongly as they otherwise might. In my view the only possible way that the law could be considered to infringe the implied freedom is this deterrent effect. In other ways it is difficult to see that the law effectively burdens the freedom – all litigants still have access to the court, all litigants can run their cases as they please subject to the usual rules, and all litigants can make vigorous submissions, and everything occurring in the court proceedings can continue to be reported and can continue to fuel public debate.
It is possible that a party before a court agitating a political cause might stray beyond advocacy to engage in disrespectful behaviour in court. Because it is possible that the law may operate as a disincentive to those who aspire to strongly agitate political causes through the legal system, by criminalising disrespectful behaviour in court, it must follow that the law does effectively burden the implied freedom.
This finding would be consistent with the reasoning of the authorities previously detailed.
I do note that the findings of the plurality in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 (APLA) may suggest otherwise. That case involved a contest to the validity of a regulation which prohibited advertising by a barrister or solicitor where the advertising contained certain references to personal injury. It was held by the plurality that the type of communication prohibited was not a communication about government or political matters. In the course of his judgement McHugh J stated at [63]:

“Lange refers to "political or government matters". But those words must be read in the context of the decision. That context leaves no doubt that the term "government" is used to describe acts and omissions of the kind that fall within Chs I, II and VIII of the Constitution. It refers to representative and responsible government. In a broad sense, "government" includes the actions of the judiciary as the third branch of government established by the Constitution. But the freedom of communication recognised by Lange does not include the exercise of the judicial power of the Commonwealth by courts invested with federal jurisdiction or, for that matter, the judicial power of the States”.

In APLA McHugh J went on to observe that some communications concerning the administration of justice are political communications which would attract the Lange freedom, but some would not (refer [64] to [68]). He observed that the distinction:

“Arises from the origins of the constitutional implication concerning freedom of communication on political and government matters. The Lange freedom arises from the necessity to promote and protect representative and responsible government. Because it arises by necessity, the freedom is limited to "the extent of the need." Courts and judges and the exercise of judicial power are not themselves subjects that are involved in representative or responsible government in the constitutional sense (at [66]).
…
The provisions that the Court identified as giving rise to an implied freedom of communication necessitate some level of communicative freedom in Australian society about matters relevant to executive responsibility and an informed electoral choice. The ends required the means. The requirement of necessity indicates that the communication must bear a close relationship to the Ch I, II and VIII sections from which the protection flows.”(at [68]).

I note the comments of the court in APLA. I also observe that it seems, when one steps back from the detailed Constitutional arguments ventilated in this matter, somewhat surprising that a law directed to uphold respect for the rule of law should be seen to burden the implied freedom of communication on government and political matters guaranteed by the Constitution. It must be remembered that the implied freedom arises from the provision in the Constitution for a system of representative and responsible government.
The Constitution also provides for an independent judiciary and it seems somewhat counterintuitive that a law which is directed at ensuring respect for the court, and thereby directed at upholding the independence of the courts, and the authority of the courts to perform their Constitutional function, can be seen to infringe the implied freedom arising from the Constitutional guarantee of representative and responsible government.
For reasons stated above, and noting the concession of the prosecution that the implied freedom is burdened, I do find, as set out above, that the law effectively burdens the implied freedom. I so find on the basis that the law may act as a disincentive to those who aspire to strongly agitate political causes through the legal system, by criminalising disrespectful behaviour.

However, as set out in the decision of Lange, as modified by Coleman, the test for the validity of an impugned law requires further questions to be determined. Whilst I am satisfied that the effect of the law may be to inhibit the making or content of political communications, I must consider whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The first consideration is whether the purpose of the law is legitimate in the sense that it is compatible with the maintenance of representative and responsible government; the second consideration is whether the law is reasonably appropriate and adapted to advance the legitimate object in a manner compatible with the maintenance of representative and responsible government.

Does the law have a legitimate object or end?

I must determine whether the purpose of the law is legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
Our representative and responsible government operates as a Constitutional democracy. An essential part of our Constitutional democracy is an independent judiciary and the rule of law. It is the rule of law which supports the freedom of our citizens from arbitrary and unaccountable decision-making, and which allows for review of laws which may restrict our freedoms. Equality before the law is maintained by the rule of law. A functioning democracy is supported and maintained by the rule of law.
The impugned law arose from community concerns about reports of behaviour by litigants before the court, of showing rejection of the role of the courts by engaging in behaviour which by expression of disrespect, demonstrated rejection of the authority of those courts within our democratic system, and disrespect for the rule of law. A particular community concern which the law was said to be addressing, according to the second reading speech, was the behaviour of litigants of not standing for the Judge in court, when such behaviour was seen to be intentionally disrespectful.
The law seeks to address a perceived gap in the current law of contempt, to attach liability to disrespectful behaviour in court not otherwise caught by the contempt provisions. This is clear from the words of section 200A and is confirmed also by the second reading speech.
I find the purpose of the law, as described above, is compatible with the constitutional imperative of the maintenance of representative and responsible government. As such the law has a legitimate end. The law, which seeks to prevent disrespectful behaviour in court, is a legitimate end of government. Our Constitution provides for a representative and responsible government, and the Constitution also provides for the rule of law, through guarantee of an independent judiciary. The Constitution provides for federal courts which are independent of government and which review the constitutionality of laws. Such independent judicial review provides protection against an erosion of freedoms through legislation enacted by Parliaments. Upholding and protecting the authority of the courts to perform their function, and the respect for the rule of law, is arguably an indispensable part of our democratic system of government. A law which has as its purpose the protection of courts from behaviour - which because of its disrespectful nature asserts that the courts are not invested with decision-making authority or legitimacy, and thereby is behaviour which undermines rule of law - has as its object or purpose maintenance of the rule of law. For reasons already stated this is compatible with the constitutional imperative of the maintenance of representative and responsible government. That this is the object of the law is seen from the terms of the law itself, it is also reflected in the words of the second reading speech:

“Our civil society is based on the rule of law and community respect for our institutions and their practices.… Courts are a fundamental part of our democracy in applying our laws of the land”.

Is the law reasonably adapted and appropriate?

The next question is whether the law is reasonably adapted and appropriate to serve the legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. If this condition is not satisfied, then the burden imposed by the law will not be justified. In addressing this question, the nature and the extent of the burden are relevant.
The burden on the freedom is slight – as previously stated the law does not restrict access to the court, nor does it restrict the arguments that can be made in court or the type of cases litigated. It does not restrict the ability of a litigant to make submissions or to strongly agitate a point of view. The requirement that the behaviour be considered according to established court practice and convention makes this clear – the courts are practiced in receiving political communications in cases before the courts, and such communications are often passionately made. It is the current practice of courts to receive diverse arguments from diverse parties, both self-represented and legally represented, and to tolerate high levels of agitation expressed by parties and witnesses arising from the circumstances of the particular case before the court.
There is some authority in the decisions of Monis and Coleman which might suggest that where a word has a wide meaning which may catch a range of conduct, then, for a finding to be made that the law is reasonably adapted and appropriate for its purpose, that word should be read down so as to limit the burden on the freedom. In Monis, the NSW Court of Appeal and the High Court both read down the meaning of the word “offensive” so as to limit the conduct which might be caught by the provision which was under consideration (the Criminal Code provision). It is submitted that in the current case the court should read down the meaning of the word “disrespectful” as it is said that this word would catch too wide a category of behaviour. It is noted that the law only applies to behaviour in court proceedings, not in the wider community. The law does not burden out of court communications about what happened in court, nor does it prohibit out of court criticism of courts and/or the legal system – those political communications are not burdened. The law is directed only to behaviour in court proceedings which is disrespectful to the court according to established court practice and convention.
The word “disrespectful” is read down by the terms of the law itself, which requires that behaviour can only be considered disrespectful when viewed against established court convention and practice. Given this limitation on the operation and effect of the law which is contained within section 220A, I am of the view that the law is reasonably appropriate and adapted to serve the legitimate end of upholding the rule of law in a manner that is compatible with representative and responsible government. As such the law, as construed, is valid.
If I am wrong in my view that the law is reasonably appropriate and adapted then I would find that construing the word “disrespectful” to be limited to “seriously disrespectful” behaviour as considered against established court practice and convention would be a permissible burden on the implied freedom given the legitimate purpose of the law. I note that ‘seriously disrespectful behaviour’ may well ordinarily constitute contempt of court, however consider that the adoption of this construction would not be inconsistent with the terms of section 200A which provides at subsection (12) for the possibility that disrespectful behaviour in court may be behaviour that also constitutes contempt of court. However, as previously stated, it is my determination that there is not a need to read down and limit the ordinary meaning of the word “disrespectful” and construe it as limited to behaviour which is seriously disrespectful. The word “disrespectful” is to be given its ordinary meaning as construed and set out above.

Second constitutional contention raised by defence – that the law (s 200A) is rendered inoperable by s 109 of the Constitution

Defence Counsel submits that the second constitutional issue arises from section 109 of the Constitution. It is submitted that because of section 109, section 200A does not operate on the defendant’s alleged conduct. The alleged conduct was as a party to proceedings (the District Court proceedings) such proceedings involving the Commonwealth as a party. Although the District Court proceedings took place in a State Court, it is submitted that the source of the District Court’s authority to decide the proceedings was Commonwealth law and that the District Court was exercising Commonwealth judicial power. It is submitted that the proceedings were in federal jurisdiction by reason of section 39(2) of the Judiciary Act 1903 (Cth) read with section 75 (iii) of the Constitution.
The defendant submits that State laws cannot directly and of their own force operate in the exercise of federal jurisdiction and APLA at [230] is cited as authority for that proposition. This is said to be by reason of the absence of State legislative power, and by reason of section 109. A State law which non-trivially alters, impairs or detracts from the operation of a Commonwealth scheme is invalid by reason of section 109 of the Constitution – Dickson v R (2010) 241 CLR 491 (Dickson) at [22] is cited as authority for this proposition. It is submitted that a State law can alter a Commonwealth scheme if it purports to operate on the same subject matter as federal law, but to prescribe conduct which is otherwise left untouched by federal law. It is said that the source of the District Court’s jurisdiction to determine the District Court proceedings was section 39(2) of the Judiciary Act; and that the investiture of federal jurisdiction by section 39(2) carried with it “such powers as were incidental and necessary to the exercise of that jurisdiction and those powers”. The implied powers so given included the power to deal with contempt in the face of the court, that power being necessary to effectuate the jurisdiction otherwise invested. In addition the District Court Act in determining the District Court proceedings gave the District Court statutory contempt jurisdiction in section 119 which was available to the District Court and binding on it, by reason of section 79(1) of the Judiciary Act.
It is submitted by the defendant that the purpose of the jurisdiction given to the District Court by section 39(2) and section 79(1) of the Judiciary Act, to punish contempt in the face of the court, is to vindicate the Court’s authority. It is said that section 200A purports to operate in federal jurisdiction by purporting to proscribe conduct by a party to federal proceedings in the course of the court’s exercise of federal jurisdiction. It is further submitted that section 79 of the Judiciary Act does not operate to pick up and apply section 200A to enable it to regulate the conduct of the participants in the District Court proceedings. It is said that section 79 ordinarily operates to ensure that State laws are capable of operating in federal jurisdiction, but it does not operate to pick up a State law which would be inconsistent with the Commonwealth law or would purport to add to a Commonwealth legislative scheme which is complete on its face. For section 200A to apply to regulate the conduct of the District Court proceedings would be inconsistent with and would attempt to add to the Commonwealth scheme for maintaining the authority of the District Court otherwise established by section 39(1) of the Judiciary Act.
The prosecutor submits that Rizeq v Western Australia [2017] HCA 23 (Rizeq) is of assistance in determining the constitutional argument. The plurality in Rizeq observed:

“Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws” (at [103]).

It is submitted that what is beyond the limits of State legislative capacity, and where section 79 of the Judiciary Act comes into play, is any attempt to govern the exercise by a court of federal jurisdiction.
At [103] of Rizeq the High Court states that:

“A State law can determine neither the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised. A State law cannot in that sense "bind" a court in the exercise of federal jurisdiction, and that is the sense in which that word is used in s 79 of the Judiciary Act. The operation of s 79 is limited to making the text of the State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction”.

The prosecutor submits that the plurality in Rizeq state that section 79 of the Judiciary Act:

“Takes the text of State laws conferring or governing powers that State courts have when exercising State jurisdiction and applies that text as Commonwealth law, to confer or govern powers that State courts and federal courts have when exercising federal jurisdiction” (at [87])…
Fills a gap in the law governing the actual exercise of federal jurisdiction which exists by reason of the absence of State legislative power” (at [63]) (see also [15]-[16]) per Keifel CJ).

The prosecutor submits that the plurality in Rizeq observed that section 79 is limited to making the text of State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction (at [103]). Subject to any inconsistency within the meaning of section 109 of the Constitution, there is no reason why a State statute creating an offence should not continue to apply where a State court is invested with federal jurisdiction. Section 200A of the District Court Act is such a law. It creates an offence with respect to behaviour that a person engages in, in State courts, which bears a particular character. While the behaviour must occur in a court room in order to fall within the terms of the provision, the commission of the offence is independent of the jurisdiction that the court may be exercising. The court plays no role in the bringing of a charge.
The prosecutor submits that contrary to the defendant’s submissions, section 200A does not regulate the conduct of proceedings in the District Court. It creates an offence which is squarely within State legislative competence and in respect of which there is no need for section 79 of the Judiciary Act to operate (the prosecutor refers to Rizeq at [105]).
I agree with the prosecutor’s submission on this point – section 200A is within State legislative competence. I find the prosecutor’s submissions are consistent with the statements of the High Court in Rizeq. In so finding I have considered further the guidance provided by the decision of the High Court in Rizeq.
Rizeq involved “federal diversity jurisdiction” – the appellant was a resident of another State who was prosecuted in Western Australia under the Misuse of Drugs Act1981 (WA) (see Kiefel CJ at [3]). I have also considered the recent decision of the High Court which focused on federal diversity jurisdiction – Burns v Corbett & Ors [2018] HCA 15 and I am of the view that the guidance provided by the decisions in Rizeq and also Dickson remains unaltered by the recent decision. I also note the very clear and useful explanation of considerations relating to Chapter III of the Constitution and State Courts (see joint judgement of Kiefel CJ, Bell and Keane in Burns at [1] - [5] and [43] - [55]).
As was stated by Kiefel CJ in Rizeq at [7]-[8], [25]:

“It is well accepted that in federal jurisdiction State and federal courts can apply both Commonwealth and State laws, as the matter in question requires. Commonwealth and State laws, together with the common law of Australia, comprise a "single though composite body of law" to be applied. A matter determined in federal diversity jurisdiction, to which s 75(iv) of the Constitution refers, may involve little, if any, Commonwealth law. The point presently to be made is that the investment of "federal jurisdiction" is not a direction as to the law to be applied. It is the investment of authority for a State court to adjudicate.
…
[25] A State court is invested with federal jurisdiction to hear and determine particular matters in accordance with "independently existing substantive law" This includes any applicable statute law, including that of a State. State laws are preserved by the Constitution. Subject to any question of inconsistency, there is no reason why a State statute creating an offence should not continue to apply where a State court is invested with federal jurisdiction”.

In their joint judgement in Rizeq Bell, Gaegle, Keane, Nettle, and Gordon JJ noted it was an opportunity to resolve some doubts which had regrettably arisen about the sources of law in federal jurisdiction and about the operation of section 79 of the Judiciary Act – their conclusions at [103] are set out above in the summary of the prosecutor’s submissions.
Consistent with the conclusions of the plurality in Rizeq (at [105]) I consider that section 200A(1) of the District Court Act is a State law having application independently of anything done by a court. It is squarely within State legislative competence. The District Court proceedings were conducted by a State court which was adjudicating a civil case between private citizen plaintiffs, including Ms Elzahed, and defendants, being the State of New South Wales and the Commonwealth of Australia. In those proceedings the District Court applied the processes and procedures of the District Court in its civil jurisdiction, being the procedures of the State court. If an offence was committed during those proceedings of contempt of court then section 199 of the District Court Act would apply and this is similarly so in relation to section 200A(1) of the same Act. I reject the defendant’s contention to the contrary for the reasons given. I also reject the defendant’s submission that there is invalidity due to section 109 of the Constitution for the following reasons.
The prosecutor submits that section 109 of the Constitution is engaged “when a law of the State is inconsistent with a law of the Commonwealth”. The prosecutor submits that, as the High Court observed in Dickson v R (2010) 241 CLR 491 (Dickson), the first proposition is often associated with “direct inconsistency” and the second with the expressions “covering the field” and “indirect inconsistency”. Both tests are applied with a view to discerning whether a “real conflict” exists between a Commonwealth law and a State law. In event of such conflict the State law yields to the Commonwealth law to the extent of the inconsistency, for such period as the Commonwealth law remains in force.
The prosecutor submits that central to the existence of inconsistency under section 109, and the extent of any inconsistency, is the intended legal and practical operation of the particular Commonwealth law. Inconsistency can also result from the inconsistent operation of Commonwealth and State legislation which confer overlapping powers on both federal and State authorities. The operational inconsistency arises only when the federal power has been exercised. Thus, a State law that permits a State court to make orders which alter, impair or detract from the operation of the Commonwealth law may be to that extent invalid. The prosecutor notes the defendant contends that section 200A is inconsistent with the Commonwealth scheme for maintaining the authority of the District Court otherwise established by section 39(1) of the Judiciary Act (Cth). The prosecutor states the Commonwealth scheme to which reference is made is not identified, but that it may be a reference to the implied powers with respect to contempt, and the express power in section 199 of the District Court Act to punish for contempt, which the defendant contends is picked up by section 79 of the Judiciary Act. The prosecutor notes the defendant implicitly accepts that there is no direct inconsistency between those powers and section 200A of the District Court Act, noting that the conduct that section 200A prescribes may not constitute a contempt of court.

It is submitted by the prosecutor that the defendant must rely on an argument that the absence of any prescription of such conduct as a matter of Commonwealth law is deliberate, with the result that section 200A is trenching upon an area that the Commonwealth did not intend to be regulated. The prosecutor submits that the present case is not, however, like Dickson upon which the defendant relies. In Dickson, the High Court concluded that there was a direct inconsistency between section 321 of the Crimes Act 1958 (Vic) which created an offence of conspiracy to dishonestly appropriate property belonging to another, and section 131.1(1) of the Criminal Code (Cth) which created an offence of theft of property belonging to a Commonwealth entity. In so concluding it was relevant that in the drafting of the Criminal Code, the Commonwealth had made a deliberate choice not to extend liability to the conduct that attracted liability under the Victorian law. By contrast, the regime for contempt on which the defendant apparently relies is in part inherent and in part statutory, the latter forming part of the same Act of which section 200A forms a part. No intention of the nature that the court discerned in Dickson is similarly discernible, from that regime, with respect of the conduct proscribed by section 200A. I agree with the prosecutor’s submissions on this point, and the interpretation of the authority, Dickson, for reasons which follow.
In agreeing with the prosecutor’s submissions I refer to the following statements from Dickson (at [22], [25] and [33]):

“[22] …The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law.
…
[25] What is immediately important is the exclusion by the federal law of significant aspects of conduct to which the State offence attaches.
…
[33] …a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation”.

The prosecutor’s submissions are supported by the passages of Dickson which I have referred to above. I also note the significant discussion of the operation of section 109 of the Constitution in the recent decision of Burns. That case involved consideration of federal diversity jurisdiction and its exercise by State tribunals. In Burns the majority (Kiefel CJ, Bell and Keane JJ in a joint judgement (Gageler J agreeing on this point)) found the Constitutional implication, that a State law could not confer on a non- court tribunal, jurisdiction with respect to any matters listed in section 75 and 76 of the Constitution because this would be invalid as inconsistent with Chapter III, given that the tribunal was not a court of the State. Gordon and Nettle JJ dissented on the implication point, but found the State law invalid pursuant to section 109 of the Constitution, on the basis that the conferral of jurisdiction (on a body other than a State Court) was inconsistent with section 39 of the Judiciary Act. Edelman J found the conferral of diversity jurisdiction on a body other than a State Court was invalidated by sections 38 and 39 of the Judiciary Act [at 252]. Edelman J also decided against the constitutional implication decided by the majority. The joint judgement of Kiefel CJ, Bell and Keane JJ found it unnecessary to decide the section 109 issue. I mention the recent decision of Burns because of the considerable discussion of section 109 of the Constitution in the judgments of Gageler, Gordon and Nettle JJ.
However, Burns is consistent with previous authorities as to what to consider in deciding whether there is a section 109 inconsistency. Matters to be considered include - whether the Commonwealth law covers the field; whether a State law impairs or detracts from the operation of a law of the Commonwealth; whether from the terms of a Federal enactment it appears that it was intended as a complete statement of the law governing a particular matter or set of rights and duties; whether a State law can impair or detract from a Commonwealth law’s conferral of jurisdiction by rendering ineffectual an actual exercise of that jurisdiction – per Gageler J at [85]-[86]. It is noted that Gageler J did not find the section 109 inconsistency issue made out in Burns for reasons set out at [92]. Gordon J notes (at [173]) that section 109 of the Constitution provides that when a law of a State otherwise within its competency, is inconsistent with a law of the Commonwealth on the same subject, such subject being also within the legislative competency of the Commonwealth, the latter shall prevail. In the situation being considered in Burns, Gordon J stated that section 109 directs attention to whether the conferral of jurisdiction alters, impairs or detracts from the operation of section 39 of the Judiciary Act, and found that by vesting jurisdiction in a State tribunal that is not a court of the State, the efficacy of section 39 insofar as it operates on State courts is correspondingly reduced (at [193]). For those reasons Gordon J found in Burns the section 109 inconsistency argument was made out.
I have considered the section 109 argument raised by the defendant in the context of the submissions of the defendant and prosecutor set out above, and the guidance of the authorities, including the recent decision of Burns. I am not satisfied that section 200A is inconsistent with Commonwealth law – I am not satisfied that the Commonwealth law has made any exhaustive or exclusive provision in relation to regulation of behaviour in court so as to render section 200A invalid by operation of section 109; nor am I of the view that there is any inconsistency between contempt law and section 200A. Nor am I of the view that section 200A impairs or detracts from the exercise of federal jurisdiction. I also consider that there is no inconsistency between section 200A and section 39 of the Judiciary Act: the present legislation is unlike the conferral of jurisdiction to a body other than a State Court which was the issue considered in Burns. For the reasons detailed I do not accept the defendant’s contentions that section 200A is invalid by operation of section 109 of the Constitution.

Third constitutional argument – whether Chapter III of the Constitution renders section 200A invalid in its operation on federal proceedings in the District Court

Defence Counsel argues that Chapter III of the Constitution renders section 200A(1) invalid in its operation on federal proceedings in the District Court. It is submitted that neither the Commonwealth nor State parliaments can legislate in any manner that would impair the investiture of judicial power in the courts specified in section 71 of the Constitution – APLA at [77] is relied upon and Kable v DPP (NSW) (1996) 189 CLR 51 at 115 is cited as authority for the proposition. I note that paragraph [77] of APLA , per McHugh J, refers to the separation of powers and that the legislature cannot usurp the judicial power of the Commonwealth, nor can it legislate in any manner which would impair the investiture of judicial power in the courts specified in section 71 of the Constitution. I further note that the majority on this point (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ (McHugh and Kirby JJ dissenting)) found that the prohibition on advertising by lawyers did not prevent the effective exercise of judicial power conferred by Chapter III of the Constitution.
It is further submitted by the defendant that the rule of law to which Chapter III gives effect “depends upon the existence and availability of courts and tribunals to which citizens may resort” and that the rule of law protects equality before the law. I consider that there is nothing controversial in these submissions, however their applicability to a determination of the validity of the current law is the issue.
It is stated on behalf of the defendant that further features of the Chapter III provisions are an open court principle and access to the courts. It is submitted that State and Commonwealth laws may not impermissibly impede or interfere with the exercise of Commonwealth judicial power. Generally it is submitted that any law which impedes access to the courts would invoke deep questions of a constitutional character. Any law which purports to unduly impede the rights of individuals to attend court and litigate their causes interferes impermissibly with the exercise of federal judicial power. It is submitted that the provision, section 200A(1), operates on critical participants in the judicial process - parties and witnesses - and purports to regulate those persons’ conduct in court, purporting to proscribe those people from engaging in conduct that would not constitute contempt of court. The defendant contends that the law deters the attendance of parties and witnesses at court who hold minority political or religious beliefs which are capable of being perceived to be disrespectful in the expression of those beliefs; and deters the giving of evidence which may be perceived to be disrespectful. It is also submitted that it operates differentially on represented and unrepresented litigants. I note that while legal representatives’ behaviour is not caught by the law, the behaviour of the parties themselves will be treated the same whether the person is legally represented or self-represented. Indeed the defendant in the present matter was legally represented in the District Court and it is her behaviour in not standing for the Judge which is in issue – this is a not a matter which was impacted upon by her status of legal representation.
The prosecutor contends that there is a real question as to whether the third constitutional matter raised by the defendant arises on the facts presently before the court. The prosecutor argues that the defendant asserts that she was effectively put to an election “between lawfully attending court for the vindication of her federal rights and the maintenance of her religious convictions”. The prosecutor submits that the prosecution case does not entail a consideration of the reasons why the defendant failed to stand for the Judge. The behaviour with which she is charged is failing to stand when the Judge entered and left the court room. The intention on the part of the defendant that the prosecution must prove is engaging in that behaviour. The prosecutor further notes that there is no evidence before the court as to why the defendant failed to stand. I agree that that there is no evidence - as detailed in my findings of fact set out above in these reasons - no evidence was provided by the defendant that the reason that she did not stand was her genuine religious belief.
The prosecutor submits that the argument that section 200A(1) is invalid because it impairs the rights of individuals to attend court and litigate their causes is reduced to the level of an assertion as to the section’s purported effects, and in the absence of evidence, the issue does not arise. The prosecutor submits that in any event the argument misconceives the operation of section 200A(1) of the District Court Act and the application of the court’s decision in Kable. The prosecutor submits that it is appropriate to focus on what section 200A does. It does regulate the behaviour of parties and witnesses to proceedings in the District Court, but it does so only in so far as the behaviour of a party or witness infringes on what is considered to be disrespectful, as a matter of established court practice and convention. The conduct that is prescribed is limited and does not impede a person’s access to the District Court, such as to affect the institutional integrity of the District Court as a repository of federal jurisdiction.
I have considered the parties submissions and the guidance provided by relevant authorities. It was argued in APLA, amongst other matters, that the States’ legislative powers do not enable the States to make a law impinging on the freedom of persons to receive advice or information which might lead those persons to engage the judicial power of the Commonwealth. It was submitted that the impugned regulation impermissibly infringed that freedom. The proposition was rejected by the majority:

“Neither the text nor the structure of the Constitution supports such an implication” (per Hayne J at [391]).

The High Court in a number of decisions has recognised that the High Court and other federal courts are creatures of the Commonwealth and that State courts are the creatures of the States (for example Gaudron J in Kable at [13]). The High Court has repeatedly observed that the Constitution provides for an integrated Australian judicial system (Gaudron J in Kable at [11]-[12]; Burns at [20]; Rizek at [49]). It has been observed that this also means in relation to State laws ((per Gaudron J in Kable at [12], [14])):

“Were they free to abolish their courts, the autochthonous expedient, more precisely, the provisions of Ch III which postulate an integrated judicial system would be frustrated in their entirety. To this extent, at least, the States are not free to legislate as they please. …
…Directs the conclusion that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with the exercise of judicial power of the Commonwealth”.

It has also been observed that there are limits to the judicial role where validity of laws of Parliament are in issue. In Fardon v Attorney-General (Qld) [2004] HCA 46 (Fardon) it is stated (per Gleeson CJ at [23]):

“Furthermore, nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy. If courts were to set out to defeat the intention of Parliament because of disagreement with the wisdom of a law, then the judiciary's collective reputation for impartiality would quickly disappear. This case involves no question of the interpretation of an ambiguous statute, or of the application of the common law. It concerns a specific challenge to the validity of a State law on the ground that it involves an impermissible attempt to resolve a certain kind of problem through the State's judicial process”.

Fardon also distinguished Kable on its facts, noting that New South Wales legislation in question in Kable was virtually unique, it was legislation ad hominem, and it would cause damage to the appearance of institutional impartiality of the Supreme Court because it was a statute which drew the Court into what was, in substance, a political exercise. (Per Gleeson CJ in Fardon at [15][16])
It was also observed in Fardon per McHugh J at [36] and [42]:

“It is a serious constitutional mistake to think that either Kable or the Constitution assimilates State courts or their judges and officers with federal courts and their judges and officers. The Constitution provides for an integrated court system. But that does not mean that what federal courts cannot do, State courts cannot do. Australia is governed by a federal, not a unitary, system of government…
…
[42] State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law. That conclusion is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the State court might not be an impartial tribunal that is independent of the legislative and the executive arms of government”.

I have also carefully considered the case Hogan v Hinch [2011] HCA 4 (Hinch) which considered, amongst other issues, whether the legislative provision in that case, which permitted the making of suppression orders, infringed the open justice principle in Chapter III of the Constitution. The Court found that the relevant provision did not confer upon the court functions inconsistent with its curial functions or deprive it of those characteristics (refer [46]).
Section 200A does not compromise the capacity of State courts to administer invested federal jurisdiction impartially according to federal law. Nor does section 200A attempt to alter or interfere with the working of the federal judicial system set up by Chapter III. Nor does it confer upon the court functions inconsistent with its curial functions or deprive it of those characteristics. Nor does it interfere with access of parties to the court or to adjudication by the court – all parties can continue to access the courts and have their cases adjudicated. I have carefully considered the submissions of the parties, and the authorities referred to, and for the reasons set out above I am of the view that section 200A(1) is not incompatible with any judicial function or otherwise incompatible with any implication derived from Chapter III of the Constitution. For the reasons detailed I reject the defendant’s contention that section 200A is rendered invalid by operation of Chapter III of the Constitution of the Commonwealth.

Conclusion

For the reasons detailed, I determine that section 200A(1) of the District Court Act is a valid law, and is not rendered invalid by the Constitution.
On the basis of the findings of fact set out in these Reasons for Decision, I am satisfied that the prosecution have proved beyond reasonable doubt, the nine offences in breach of section 200A(1) of the District Court Act, as set out in the court attendance notices. I am satisfied, as detailed above, that the defendant, Ms Elzahed, repeatedly and intentionally failed to stand for the Judge in the District Court proceedings, and in doing so she intended to communicate by her behaviour lack of respect, or disrespect, for the court and the Judge. I am satisfied for the reasons detailed above that the defendant’s behaviour was intentional, and the behaviour was disrespectful to the court and the Judge presiding over the proceedings, according to established court practice and convention. I am satisfied that the prosecution have proved all elements of the offences, in respect of each of the nine offences set out in the court attendance notices, beyond reasonable doubt, as detailed above. I therefore find all offences proved.

Magistrate Huntsman

4 May 2018

Downing Centre Local Court

**********

Amendments

06 December 2018 - Minor amendment to typographical error at [102]

07 December 2018 - Minor amendment to representatives on cover page

Decision last updated: 07 December 2018

Medium Neutral Citation:	R v Moutiaa Elzahed (No 2) [2018] NSWLC 13
Hearing dates:	19 - 21 February 2018
Decision date:	04 May 2018
Jurisdiction:	Criminal
Before:	Magistrate Huntsman
Decision:	The legislation (section 200A of the District Court Act 1973 (NSW)) is valid and the offences are proved beyond reasonable doubt.
Catchwords:	CRIMINAL LAW – Particular offences – Miscellaneous offences and matters – Disrespectful behaviour in court - meaning of disrespectful behaviour in court - whether failure to stand for Judge in District Court proceedings is disrespectful behaviour in court according to established court practice and convention - freedom of political communication implied by Commonwealth Constitution - whether effectively burdened - if the freedom is burdened, whether law valid - whether law invalid pursuant to Chapter III of the Commonwealth Constitution - whether law inconsistent and invalid pursuant to section 109 of the Commonwealth Constitution
Legislation Cited:	Commonwealth of Australia Constitution Act ss 75(iii), 109 District Court Act 1973 (NSW) s 200A Judiciary Act 1903 (Cth) ss 39(1), 39(2), 75B, 79(1)
Cases Cited:	APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 Brown v Tasmania [2017] HCA 43; (2017) 91 ALJR 1089 Burns v Corbett & Ors [2018] HCA 15 Coleman v Power [2004] HCA 39 Dickson v R (2010) 241 CLR 491 Fardon v Attorney-General (Qld) [2004] HCA 46 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 Hogan v Hinch [2011] HCA 4 Kable v DPP (NSW) (1996) 189 CLR 51 Lange v Australian Broadcasting Corporation [1997] HCA 25 Levy v the State of Victoria and Ors (1997) 189 CLR 579 McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 Monis v R [2011] NSWCCA 231 Monis v R (2013) 249 CLR 92 O’Hair v Wright [1971] SAS R 436 Rizeq v Western Australia [2017] HCA 23 Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 Wotton v State of Queensland [2012] HCA 2
Category:	Principal judgment
Parties:	NSW Director of Public Prosecutions (prosecutor) Moutiaa Elzahed (defendant)
Representation:	Counsel: D Kell SC with A Mitchelmore (for the prosecution) D Hulme (for the defendant) Solicitors: Crown Solicitor's Office (for the prosecution) Z Burrows (for the defendant)
File Number(s):	2017/00140056
Publication restriction:	Nil