Republic of Turkey v Mackie Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0027

THE REPUBLIC OF TURKEY	Applicant
v
MACKIE PTY LTD (ACN 097 603 846)	Respondent
and
ATTORNEY-GENERAL OF THE COMMONWEALTH	Intervener
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Intervener

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JUDGES:	TATE, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 November 2020
DATE OF JUDGMENT:	30 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 77
JUDGMENT APPEALED FROM:	[2019] VSC 103 (Bell J)

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CONSTITUTIONAL LAW – Judicial power – Dispute involving contract for construction of official residence for Turkish Consul General – Whether Victorian Civil and Administrative Tribunal had jurisdiction to hear and determine dispute – Whether matter one ‘affecting consuls or other representatives of other countries’ under s 75(ii) of the Commonwealth Constitution – Meaning of ‘matters affecting consuls’ – Whether residence ‘consular premises’ – Burns v Corbett (2018) 265 CLR 304, Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361, applied; R v Donyadideh (1993) 114 FLR 43, considered – Commonwealth Constitution s 75 – Vienna Convention on Consular Relations arts 1(j), 5, 31, 32, 43.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Andrew with Mr N J Phillpott	AUM Lawyers
For the Respondents	Mr CM Caleo QC with Mr M Hosking	Herbert Smith Freehills
For the Attorney-General of the Commonwealth	Dr S Donaghue QC, Solicitor-General of the Commonwealth, with Ms R Amamoo	Australian Government Solicitor
For the Attorney-General for the State of Victoria	Ms KE Foley	Victorian Government Solicitor

TATE JA:

TABLE OF CONTENTS

Introduction and summary.......................................................................................

1

The contract.................................................................................................................

3

Legal proceedings........................................................................................................

6

What is the scope of s 75(ii) of the Constitution?..................................................

9

   (1)   Does s 75(ii) extend only to consuls acting in their official capacity?...............

11

   (2)   What is the meaning of matters ‘affecting’ in s 75(ii)?.....................................

22

Does the matter affect the Consul General for Turkey in an official capacity?

32

   (1)   Is the building properly characterised as ‘consular premises’?............................

33

   (2)   Does the matter relevantly affect Turkey’s Consul General?.............................

39

Application for leave to rely on evidence of Apak................................................

41

Conclusion — Answer to the separate question....................................................

41

Introduction and summary

The Republic of Turkey (‘Turkey’) entered into a contract with a builder, Mackie Pty Ltd (‘Mackie’), for ‘the demolition of an existing residence and the construction of a new consular residence’ for Turkey’s Consul General in Melbourne.[1] The construction of the new consular residence (‘the building’) involved delays and allegations of defective work. This led to a dispute between Turkey and Mackie resulting in Mackie bringing a proceeding for money outstanding under the contract and Turkey denying liability and bringing a counterclaim for damages for defective and incomplete works (‘the dispute’). The dispute was heard in the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The question has now arisen whether the dispute is a matter ‘affecting consuls or other representatives of other countries’ within the meaning of s 75(ii) of the Constitution. If so, it is a matter that falls within federal jurisdiction. A State law that purports to ‘confer jurisdiction with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States is inconsistent with Ch III of the Constitution, and is, therefore, invalid’.[2] The Tribunal is not a court of a State for the purposes of Ch III.[3] If the dispute between Turkey and Mackie falls within federal jurisdiction, the Tribunal had no authority to hear or determine it.
[1]Agreed summary [1].
[2]Burns v Corbett (2018) 265 CLR 304, 325–6 [2] (Kiefel CJ, Bell and Keane JJ), 346 [68]–[69] (Gageler J); [2018] HCA 15.
[3]Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361, 393 [98] (Tate, Niall and Emerton JJA); [2020] VSCA 30 (‘Meringnage’).

This Court, in an order made on 2 July 2020, formulated the issue arising under the Constitution as a separate question, namely, whether

[t]he Tribunal lacked jurisdiction to hear and determine the proceeding because the subject matter of the proceeding was a matter ‘affecting consuls or other representatives of other countries’ within the meaning of section 75(ii) of the Constitution and the Tribunal is not a court of the State. (‘the separate question’)

The Attorney-General of the Commonwealth (‘the Commonwealth’) and the Attorney-General for the State of Victoria (‘Victoria’) intervened in the proceeding in this Court to be heard on the separate question in addition to the parties.[4] This judgment is concerned with the separate question alone.
[4]Pursuant to s 78A of the Judiciary Act 1903 (Cth).

For the reasons below, in my view the dispute is a matter ‘affecting consuls’ within the meaning of s 75(ii) of the Constitution. I consider that the Tribunal had no authority to hear and determine the dispute as the dispute is a matter that falls within federal jurisdiction.

My conclusions are as follows:

(1) The scope of s 75(ii) of the Constitution extends at least to consuls in their official capacity;

(2) Whether a matter affects a consul depends upon there being a real and substantial connection between them;

(3) The building is properly characterised as ‘consular premises’;

(4) The dispute concerns consular premises;

(5) There is a real and substantial connection between the dispute and the Consul General of Turkey in an official capacity; and

(6) The dispute is a matter affecting consuls.

The contract

Turkey is a foreign state. It maintains an embassy in Canberra and consulates in a number of Australian cities, including Melbourne. Its Melbourne consulate is headed by a Consul General. For many years Turkey has owned a residence in Toorak Road, Toorak, Melbourne, that has been used as a residence by the Consul General and family.[5]
[5]Mackie Pty Ltd v Republic of Turkey [2017] VCAT 129, [12] (‘Tribunal’s reasons’).

The design for the building was prepared by an architectural firm Tectura Pty Ltd (‘Tectura’). The director of Tectura, Serdar Baycan (‘Baycan’), gave evidence at the Tribunal[6] that in 2008 he was engaged by the then Consul General for Turkey in Melbourne, Aydin Nurhan (‘Nurhan’), to design and administer the construction of the building. He held consultations with Nurhan in Melbourne and received instructions, in Turkish, from Ms Mehtap Tugtekin (‘Tugtekin’), chief architect at the Turkish Ministry for Foreign Affairs, in Ankara where he first met Tugtekin.[7] Baycan gave evidence that Tugtekin ‘is a professional architect and is responsible for Turkey’s overseas diplomatic mission projects’. Baycan also received instructions from Osman Pesmen (‘Pesmen’), an administrative attaché for Turkey.
[6]Tectura was joined as a party to the proceeding before the Tribunal.
[7]Ankara is the capital of Turkey.

Tectura prepared a suite of architectural drawings and a detailed specification. The architectural and engineering plans and drawings for the building provided for a four-level residence inclusive of a basement carpark and a new swimming pool at the rear. Baycan described it as ‘a significant building being the Republic’s consulate residence in Melbourne and its design was to highlight and emphasise the Turkish culture and heritage’.

The external walls of the building were to be manufactured from pre-cast concrete panels. The panels included decorations which counsel for Tectura submitted at the Tribunal had been selected by Tectura in order to recall the historic 11^th and 12^th century Turkish architecture from the pre-Ottoman Seljuk period, coupled with the new civic and public architecture of the modern Republic of Turkey.

The specifications included a ‘Colour and Finishes Schedule’ containing photographs of the Anıtkabir, the Mausoleum of Mustafa Kemal Ataturk, to assist builders tendering for the project in understanding the design intent.[8] Baycan gave evidence at the Tribunal that the external pre-cast concrete panels were a significant aesthetic feature of the building design and the colour selections were integral to the architectural expression.
[8]Mustafa Kemal Ataturk was the first President of the Republic of Turkey.

The design specifications show that the building includes a large reception hall, a lobby, a formal entry, a cloak room, a lounge/dining area, and a cleaners’ store. It also has a servery/bar designed to contain a substantial amount of kitchen equipment. Counsel for Turkey described this as a ‘very large commercial kitchen’. This area is separate from the private quarters upstairs for the Consul General’s family and their private kitchen. The design specifications also show a computer room and multiple guest rooms (one with a study). There is an array of toilets throughout the building including ones designated as ‘male’ and ‘female’ toilets.[9]
[9]The fixtures also included automatic hand dryers. Garde J, in his reasons dismissing an application for reconstitution of the Tribunal, described the building in these terms: ‘The new residence comprises a basement area and three floors above ground level. It has six bedrooms, two car parks, a large reception area on the ground floor, dining rooms including one with a capacity to seat 25 persons, and kitchens to serve the dining rooms and the reception room’: Mackie Pty Ltd v Republic of Turkey [2017] VCAT 620, [3] (‘Garde J reasons’).

The completed design documentation for the building, including the drawings and specifications, were approved by Tugtekin, Nurhan, and Pesmen.

In October 2009, Turkey began a competitive tender process for the project. A tender package, consisting of the design documents and a proposed contract, was prepared and distributed amongst five potential tenderers. Tectura reviewed the tender responses. Mackie submitted a tender proposing to carry out the works for a fixed sum of $4,350,000 plus GST.

On 26 November 2009, Baycan discussed the tender responses at a meeting with Nurhan, Pesmen and Tugtekin. Baycan said, ‘Tugtekin was in Melbourne on that day and therefore it was necessary to assess the tenders, select the preferred tenderer and interview the preferred tenderer on that same day’. The meeting took place at the Turkish Consulate General offices in South Melbourne.

Later that same day Ralph Mackie, director of Mackie, and Graham Duckitt (‘Duckitt’), Mackie’s project manager, attended the meeting. Also present were Nurhan, Pesmen and Tugtekin. Baycan interpreted the discussions for the benefit of Tugtekin, Ralph Mackie and Duckitt.

Mackie’s tender was subsequently approved and, on 18 December 2009, a contract was entered into between Mackie (as ‘Contractor’) and ‘Consul General Aydin Nurhan on behalf of the Republic of Turkey’ (as ‘Principal’), for a fixed price lump sum of $4,350,000 plus GST (‘the contract’). The date of practical completion specified under the annexure to the contract was 1 March 2011. The contract was signed by Nurhan and Ralph Mackie. It was translated into Turkish.

Pursuant to the contract, the existing consular residence was demolished and, in 2011, work on the building commenced.

The construction process was attended by difficulties. Substantial delays occurred. The actual costs of the construction work were much greater than the fixed lump sum and the actual date of practical completion was late, namely, 8 February 2012. Turkey sought to withhold certain payments and a lengthy disagreement ensued.

Legal proceedings

On 22 March 2013, Mackie commenced a proceeding in the County Court of Victoria. The relief sought included specific performance for the release of moneys held by Turkey as security, declarations of invalidity of certain notices given under the contract, a declaration with respect to an extension of time for the date of practical completion, damages for variations and for delay or disruption costs, and a sum of $264,000 in respect of the amount allegedly unlawfully withheld by Turkey for liquidated damages.

The contract is a domestic building contract and disputes concerning domestic building contracts in Victoria are governed by the Domestic Building Contract Act 1995. On 5 September 2014, the proceeding was stayed by consent upon Mackie’s application under s 57 of the Domestic Building Contract Act. Section 57 provides:

57VCAT to be chiefly responsible for resolving domestic building disputes
(1)This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates’ Court.
(2)The Court must stay any such action on the application of a party to the action if —
(a)the action could be heard by VCAT under this Subdivision; and
(b)the Court has not heard any oral evidence concerning the dispute itself.

…

The application of s 57(2) depends upon the Tribunal possessing the relevant jurisdiction to hear the matter. It follows that, if the separate question is answered affirmatively and this matter falls within federal jurisdiction, it was not mandatory for the matter to have been stayed in the County Court. Moreover, the County Court, as a court of a State, exercises federal jurisdiction and has the authority to hear and determine the matter.[10]
[10]Judiciary Act 1903 (Cth) s 39(2). Meringnage (2020) 60 VR 361, 372 [25]; [2020] VSCA 30.

Before the County Court proceeding was stayed, an affidavit of Seyit Mehmet Apak (‘Apak’) was filed. Apak was the then Consul General for Turkey in Melbourne at the time Mackie brought its proceeding in the County Court, having commenced his role in or about September 2012. The affidavit documented a range of defects that Apak observed while living in the building. He recalled, for example, being unable to sleep due to noise intrusion from faulty windows, becoming locked in rooms because of a malfunction of the locks, finding doors misaligned and unable to properly close, and being concerned about security risks. Turkey seeks leave to rely upon Apak’s affidavit in this Court. Mackie opposes leave being granted. I deal with this application below.[11]
[11]See [113]–[114] below.

On 16 January 2015, Mackie issued proceedings in the Tribunal. The Tribunal ordered that Mackie’s Second Further Amended Statement of Claim, previously filed in the County Court, stand as its Points of Claim in the proceeding before the Tribunal. Turkey filed its Points of Defence and Counterclaim on 30 April 2015. It counterclaimed for damages and an adjustment of the date of practical completion in its favour. It joined Tectura as a third party against whom it claimed contribution with respect to any order made against it in favour of Mackie.

The hearing before the Tribunal began on 5 September 2016 and occupied 25 sitting days until the matter was adjourned due to the unavailability of the Member. Before the hearing resumed, Tectura made an application for reconstitution of the Tribunal on the grounds that the senior member was ill-suited for the specialist task and that there was a reasonable apprehension of bias as a result of the manner in which the senior member had conducted the hearing. The application was supported by the then Consul General for Turkey in Melbourne, Mehmet Kucuksakalli (‘Kucuksakalli’), a diplomat, who had received instructions to assume the post in about October 2014. He had taken up residence in the building and had the responsibility for providing instructions on the dispute to Turkey’s solicitor. He attended on some of the days of the hearing before the Tribunal and gave evidence that when he did so he became concerned about the attitude and demeanour of the senior member. The application was dismissed by Garde J.[12] The hearing continued for another six days. The Tribunal delivered judgment and made orders on 25 August 2017.
[12]Garde J reasons [84].

The Tribunal found in favour of Mackie. Orders were made for Turkey to pay Mackie the sum of $693,824.58, and for Tectura to pay Turkey the sum of $119,664.65. Leave was given for the parties to make further submissions on the sum held as security. The Tribunal dismissed Turkey’s counterclaim.[13]
[13]On 18 October 2017 the Tribunal made further orders requiring Turkey to pay Mackie $311,650.99 interest by way of damages and costs and requiring Tectura to pay Turkey $10,118.88 interest by way of damages.

Turkey and Tectura both applied to the Supreme Court for leave to appeal against the Tribunal’s decision, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998. Such an appeal is limited to questions of law. Tectura subsequently discontinued its appeal after settling with Turkey on confidential terms. Turkey’s claims continued to a hearing before Bell J in the Trial Division. The grounds of appeal included, variously, claims of apprehended bias, denial of natural justice/procedural fairness, and errors in respect of the grant of extensions of time for practical completion. Bell J granted leave to appeal but dismissed the appeal.[14]
[14]Republic of Turkey v Mackie Pty Ltd [2019] VSC 103.

Turkey applied to this Court for leave to appeal from the orders of Bell J. Before the hearing of the application for leave to appeal, the Court raised with the parties the issue of whether the Tribunal had jurisdiction to hear and determine the matter. Turkey subsequently amended its Application for Leave to Appeal to include the following proposed ground of appeal, ground 7:

The Tribunal lacked jurisdiction to hear and determine the proceeding because the subject matter of the proceeding was a matter ‘affecting consuls or other representatives of other countries’ within the meaning of section 75(ii) of the Constitution and the Tribunal is not a court of the State.[15]

[15]Italics in original.

On 2 July 2020 the Court directed that ground 7 be heard and determined as a separate question.[16] The separate question was heard on 4 November 2020.
[16]A notice under s 78B of the Judiciary Act 1903 (Cth) was issued by Turkey on 17 March 2020. It was in response to that notice that the Attorney-General of the Commonwealth and the Attorney-General for the State of Victoria indicated they intended to intervene. The Attorneys-General for New South Wales, Western Australia and the Australian Capital Territory indicated that they would not be intervening. No response was received from the Attorneys-General for Queensland, South Australia, Tasmania, and the Northern Territory.

It is convenient to approach the task of answering the separate question by first considering the proper construction of s 75(ii) of the Constitution to determine its scope before seeking to apply that construction to the circumstances to determine if the dispute is a matter that falls within the scope of s 75(ii).[17]
[17]The parties, and the Commonwealth, made submissions on both issues. The submissions made on behalf of Victoria were confined to the first issue.

What is the scope of s 75(ii) of the Constitution?

In Burns v Corbett the High Court confirmed that a State Parliament cannot confer judicial power on a body that is not a ‘court of a State’ within the meaning of s 77(iii) of the Constitution in respect of a proceeding which comes within the matters listed in ss 75 and 76 of the Constitution.[18] This includes, relevantly, any matter ‘affecting consuls or other representatives of other countries’ under s 75(ii). Section 75 of the Constitution provides:
[18]Burns v Corbett (2018) 265 CLR 304, 326 [3], 335 [43], 339 [50] (Kiefel CJ, Bell and Keane JJ); [2018] HCA 15.

In all matters:
(i)arising under any treaty;
(ii)affecting consuls or other representatives of other countries;
(iii)in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv)between States, or between residents of different States, or between a State and a resident of another State;
(v)in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

In Meringnage, this Court held that the Tribunal is not a ‘court of a State’ under s 77(iii).[19] The parties do not challenge this conclusion. Nor is it in contest that the Tribunal was exercising judicial power when it heard and determined the present proceeding, or that the proceeding concerned a ‘matter’ for the purposes of Ch III of the Constitution.
[19](2020) 60 VR 361, 393 [98] (Tate, Niall and Emerton JJA); [2020] VSCA 30.

The issue of whether the Tribunal had jurisdiction to hear and determine the dispute, and to make the orders it did, depends on whether the matter is one ‘affecting consuls or other representatives of other countries’ within the meaning of s 75(ii). As the matter concerns a residence for Turkey’s Consul General, the issue becomes whether the matter is one ‘affecting consuls’.

There are two core issues of construction that emerge in respect of s 75(ii). While the constitutional expression ‘affecting consuls’ is a composite term, it is necessary to examine its constituent parts in their context. The first principal issue concerns the scope of the term ‘consuls’ within s 75(ii) — specifically, whether the term only covers consuls acting in their official or representative capacity, or, alternatively, whether it has a broader application to consuls acting in their private capacity. There is a subsidiary issue of whether the expression ‘other representatives of other countries’ is capable of extending to ambassadors and public ministers. As I explain below, I do not consider that the disposition of the separate question requires a determination of the subsidiary issue. The second issue concerns the scope of the word ‘affecting’; what test ought be applied to determine if a matter ‘affects’ a consul. However, the two principal issues are not wholly separate but are, to an extent, inter-twined.

(1) Does s 75(ii) extend only to consuls acting in their official capacity?

The only judicial consideration of s 75(ii) is the decision of Miles CJ in R v Donyadideh (‘Donyadideh’).[20] It does not concern consuls but ‘representatives of other countries’. Charges had been brought against eleven accused for offences contrary to s 8(2) of the Crimes (Internationally Protected Persons) Act 1976 (Cth). Section 8(2) provides that a person who commits an attack (other than murder or kidnapping) upon the person or liberty of ‘an internationally protected person’ is guilty of an offence against the Act punishable on conviction to imprisonment according to the effect of the attack. Seven of the accused were also charged with offences against s 8(3B) which provides that a person who intentionally destroys or damages by means of fire or explosive the official premises of an internationally protected person is guilty of an offence under the Act punishable upon conviction by imprisonment not exceeding 15 years.[21] The indictment alleged that the victims were ‘internationally protected persons’ and it was assumed or agreed that they were representatives of another country, namely, the Islamic Republic of Iran. The issue before Miles CJ was whether the Supreme Court of the Australian Capital Territory had jurisdiction to try the charges. He concluded that the prosecution for offences under s 8 of the Crimes (Internationally Protected Persons) Act was a matter ‘affecting … representatives of other countries’ within the meaning of s 75(ii) of the Constitution[22] and that Territory courts continue to exercise, as an aspect of their ‘belonging’ jurisdiction, jurisdiction in respect of matters identified in s 75, or at least those identified in s 75(ii).[23]
[20](1993) 114 FLR 43. Miles CJ was sitting in the Supreme Court of the Australian Capital Territory.
[21]Section 8(3) relevantly provides that any person who intentionally destroys or damages (otherwise than by means of fire or explosive) any official premises or means of transport of an internationally protected person is guilty of an offence against the Act punishable upon conviction by imprisonment not exceeding 10 years.
[22](1993) 114 FLR 43, 48.
[23]Ibid 51. The second aspect of Miles CJ’s conclusion is not relevant here.

Miles CJ referred to a somewhat analogous provision in Art III, § 2 of the United States Constitution (‘the US Constitution’), which provided the origins of s 75(ii).[24] This relevantly provides:

The judicial Power shall extend … to all Cases affecting Ambassadors, other public Ministers and Consuls;
…
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction…

[24]Geoffrey Lindell, Cowen and Zines’s Federal Jurisdiction in Australia (Federation Press, 4^th ed, 2016), 48, 57–9.

Miles CJ also referred to United States v Ortega (‘Ortega’),[25] in which the United States Supreme Court held that an indictment for infracting the law of nations by means of an assault against a public minister of a foreign country, the charge d’affaires of the King of Spain in the United States, was not a case ‘affecting’ the minister within the meaning of Art III, § 2. However, he also noted that Sir John Quick and Sir Robert Garran, in their Annotated Constitution of the Australian Commonwealth (‘Quick and Garran’),[26] referred to Osborn v Bank of United States (‘Osborn’)[27] where the United States Supreme Court observed that Art III, § 2 had been intended to give jurisdiction whenever foreign representatives were ‘in any manner’ affected. Miles CJ said:
[25](1826) 24 US (11 Wheat) 467.
[26]John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901), 771.
[27](1824) 22 US (9 Wheat) 738.

To bring the case within s 75(ii) it is necessary that one or more of the individual representatives of that country named in the indictment [Iran] be affected by the proceedings.
There is direct authority to the contrary in the United States, where it was held long ago that an indictment for offering violence to the person of a public minister of a foreign country is not a case ‘affecting’ the minister: United States v Ortega:
It is that of a public prosecution, instituted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations, and that of the United States, offended, as the indictment charges, in the person of a public minister, by an assault committed on him by a private individual. It is a case, then, which affects the United States and the individual whom they seek to punish; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution or in the costs attending it.

However, as J Quick and R R Garran point out … in another early case in the United States Supreme Court, Marshall CJ held that a provision similar to s 75(ii) was intended to give jurisdiction ‘over all cases by which they (the foreign representatives) were in any manner affected’, whereas in the case of States it was intended to give jurisdiction in those cases to which the States were actual parties: Osborn v Bank of US, and see Constitution, s 75(iv).[28]

[28](1993) 114 FLR 43, 48 (citations omitted).

He went on to observe that a victim of a crime in the Australian Capital Territory is ‘affected’ by a crime, not least because they are entitled to apply for criminal compensation under Territory legislation. He said:

Furthermore, it is difficult, in my view, to see that, in the contemporary scene, the alleged victim of a crime is not ‘affected’ by the prosecution of the offender, as the conviction may provide the basis for a discretionary order for compensation under s 19B of the Crimes Act 1914 (Cth) and does provide conclusive evidence of criminal conduct for the purpose of an application for compensation under the Criminal Injuries Compensation Act 1983 (ACT).
I conclude that the prosecution of offences under s 8 of the Crimes (Internationally Protected Persons) Act is a matter affecting representatives of another country, and is within s 75(ii) of the Constitution.[29]

[29]Ibid 48–9.

Turkey urges the Court to adopt the construction of s 75(ii) favoured by Miles CJ. It submits that this is a construction consistent with its plain and ordinary meaning, whereby federal jurisdiction is attracted if the matter affects a consul in any way. It contends that s 75(ii) extends to matters with a non-tenuous connection with consuls or representatives in their official position. It submits that the first principal issue of construction need not be definitively decided in this matter; that is, the question of whether the scope of s 75(ii) extends to matters that affect consuls in a private capacity need not be decided in the event that this matter is found to exhibit a non-tenuous connection with Turkey’s Consul Generals in their official position. In other words, s 75(ii) must extend at least to matters affecting consuls in their official capacity.

The Commonwealth urges this Court to adopt a broad construction of s 75(ii). It asserts, uncontroversially, that the starting point for analysis is to recognise that the Constitution is an instrument of government intended to endure and apply to changing circumstances.[30] It submits that grants of jurisdiction under the Constitution should attract a wide interpretation. More generally, the Commonwealth submits that any conferral of jurisdiction on a court, especially a superior court, ought ‘not to be treated as subject to any limitation that does not appear in the express words of that grant’[31] because of the ‘recognition of the multitude of situations with which courts must typically deal’.[32] It submits that s 75(ii) must be read liberally so as to ‘accord the broadest ambit and flexibility to the jurisdiction so provided’.[33]
[30]Singh v Commonwealth (2004) 222 CLR 322, 348–9 [53] (McHugh J), 385 [159] (Gummow, Hayne and Heydon JJ); [2004] HCA 43.
[31]Burrell v The Queen (2008) 238 CLR 218, 243 [102] (Kirby J); [2008] HCA 34; Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205 (Gaudron J); [1992] HCA 28.
[32]Abebe v Commonwealth (1999) 197 CLR 510, 586–7 [221] (Kirby J); [1999] HCA 14.
[33]Ibid.

The Commonwealth accepts that a matter that bears a non-tenuous connection with consuls in their official position falls within the scope of s 75(ii). However, it submits that, within limits, matters affecting consuls in their private capacity also fall within the scope of s 75(ii).[34] It relies on the observations of Marshall CJ in Osborn that the jurisdiction under Art III, § 2 is ‘one where the nature of the controversy is, in some degree, blended with the character of the party’.[35]
[34]The Commonwealth accepts there are some limits, for example, with respect to matters involving the personal affairs of honorary consuls, such as divorce or child custody proceedings, because they are entirely removed from serving the purpose of preserving Australia’s foreign relations. It also accepts that a prosecution for the failure to register a dog or being involved in a proceeding concerning an independent business would not fall within the scope of s 75(ii). See also n 47 and n 48 below.
[35](1824) 22 US (9 Wheat) 738, 854.

The Commonwealth identifies the purpose of s 75(ii) as bringing within federal jurisdiction those matters that might prejudice foreign relations.[36] It submits that ambassadors and diplomats have a much greater capacity to influence foreign relations than consuls and thus the words ‘or other representatives of other countries’ should be read as embracing both ambassadors and diplomats.[37] On the basis of that construction, the Commonwealth submits that if s 75(ii) was confined only to matters affecting an ambassador or diplomat in their representative capacity this would fail to achieve the purpose of the grant of jurisdiction as the grant would not extend to many possible claims that could be brought against them for which they would likely have immunity. Under long-standing rules of international law, which pre-date federation, members of a diplomatic mission enjoy a broad immunity from the receiving state’s criminal and civil laws that extends not only to acts done in the member’s official capacity (for which the immunity subsists indefinitely), but also to private acts (in which case the immunity exists for as long as the member is a part of the mission and in the country).[38] This is consistent with the Vienna Convention on Diplomatic Relations (1961) (‘the 1961 Convention’).[39] It is also consistent with the Vienna Convention on Consular Relations (1963) (‘the 1963 Convention’)[40] under which consuls have historically enjoyed only a limited immunity in respect of ‘acts performed in the exercise of consular functions’.[41] By contrast, diplomats enjoy a much broader immunity and have more expansive functions.
[36]Alexander Hamilton, ‘Federalist No 81’ in Alexander Hamilton, John Jay and James Madison, The Federalist: A Commentary on the Constitution of the United States, ed Edward Mead Earle (The Modern Library, 1941), 529.
[37]Quick and Garran explain the omission of any reference to ambassadors or diplomats in the text because in 1901 the diplomatic relations of Australia were conducted by the United Kingdom Government: Quick and Garran (n 26), 771.
[38]James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 9^th ed, 2019), 393.
[39]Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964). Much of the 1961 Convention has been incorporated into Australian law under s 7 of the Diplomatic Privileges and Immunities Act 1967 (Cth) and is the Schedule to that Act.
[40]Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967). Much of the 1963 Convention has been incorporated into Australian law under s 5 of the Consular Privileges and Immunities Act 1972 (Cth), relevantly arts 1, 5, 32 and 43 and paras 1, 2 and 4 of art 31.
[41]1963 Convention, art 43(1). See also AH Charteris, ‘The Position of Consuls in Australia’ (1935) 1 Proceedings of the ANZ Society for International Law 74, 75.

A restrictive construction would not permit ambassadors and diplomats to assert their immunity in a court exercising federal jurisdiction and would prevent the Commonwealth Parliament from retaining control by ensuring that State courts do not exercise jurisdiction over ambassadors and diplomats inconsistently with the immunities they enjoy under international law.[42]
[42]See Sosa v Alvarez-Machain (2004) 542 US 692, 716–17 where the United States Supreme Court explained the inclusion of Art III, § 2 in the US Constitution by reference to the earlier largely unsuccessful demand that state legislatures should provide for expeditious, exemplary and adequate punishment for the infractions of the immunities of ambassadors and other public ministers. The incapacity of the Continental Congress to deal with these classes of cases led to the framers responding by vesting the Supreme Court with original jurisdiction in the cases identified in Art III, § 2.

The Commonwealth urges the adoption of a uniform approach to the whole of s 75(ii). If the protection of federal jurisdiction extends to matters affecting ambassadors and diplomats, in both official and private capacity, then so too matters affecting consuls, in any capacity, must also attract federal jurisdiction. While a narrow construction might reflect the fact that consular officials have no immunity for private actions in international law, the dichotomy between private and official capacity does not fit well with the broader immunity enjoyed by diplomatic officials. It would be incongruous to adopt a bifurcated interpretation of s 75(ii) that has a narrow scope for consuls and a broad scope for other representatives of other countries. Turkey also opposes a bifurcated interpretation of s 75(ii) whereby its operation depends on the class of the representative in question rather than as applying equally amongst all types of representatives, regardless of rank or title.

Moreover, the Commonwealth observes that a broad construction of s 75(ii) would permit the hearing and determination in federal jurisdiction of claims against consuls, in their private capacity, for which they have no immunity. In respect of claims against consuls, this would give s 75(ii) real work to do.

Mackie urges the adoption of a more restricted interpretation. It submits that s 75(ii) is to be interpreted according to the ordinary meaning of the text but read in light of its history, informed by its context, including the text and context of other provisions of the Constitution.[43] In particular, it emphasises the importance of context, which may indicate that a provision that appears broad should be given a narrower meaning.
[43]McGinty v Western Australia (1996) 186 CLR 140, 230–1 (McHugh J); [1996] HCA 48.

Mackie submits that the appropriate construction of s 75(ii) is that it is confined to those matters where consuls are affected in their ‘official’ or ‘representative capacity’. Furthermore, the consul needs to be affected in their official capacity in a manner that is more than insubstantial, tenuous or distant. A matter that affects consuls in their private capacity, or only tenuously affects their official capacity, will fall outside of s 75(ii).

Victoria also submits that s 75(ii) should be read narrowly and subject to certain limits. It submits that s 75(ii) only confers jurisdiction in respect of matters where consuls are affected in their ‘official’ or ‘representative capacity’.

Both Mackie and Victoria draw on the text of s 75(ii). They submit, somewhat similarly to the Commonwealth, that the word ‘consuls’ should be read in conjunction with the phrase ‘or other representatives of other countries’ in the same sub-section. However, they draw a different inference to that drawn by the Commonwealth. Mackie and Victoria argue that the inclusion of those accompanying words supports their submission that s 75(ii) was intended to apply to consuls only in their capacity ‘as representatives of other countries’, and that it is this status alone with which the sub-section is concerned. Victoria submits that the text makes clear that a person is not included within the scope of s 75(ii) for any reason other than their status as a consul or as a representative of another country.

Victoria observes that this restrictive view was shared by Quick and Garran who said:

The words of the Constitution, coupling consuls with ‘other representatives of other countries’, seem to contemplate that jurisdiction shall only be conferred under this sub-section when the consul or other representative is affected in his official or representative capacity. This construction is in harmony with the position of a consul as a public agent of the country which he represents. So far as his public position is concerned, the special protection of the federal jurisdiction is thrown over him; but where his public position is not affected there is no need to differentiate him from any ordinary citizen.[44]

[44]Quick and Garran (n 26), 771 (citations omitted).

Quick and Garran acknowledged that the United States Supreme Court appeared to adopt a more liberal construction of Art III, § 2, saying:

It would seem that the words of the United States Constitution — ‘affecting ambassadors, other public ministers and consuls’ — are interpreted differently as extending to the private as well as public capacity of those dignitaries.[45]

[45]Ibid.

In the 1898 Federal Convention, referred to by Quick and Garran, Edmund Barton, in an exchange with Henry Higgins, adopted the restrictive approach Quick and Garran favoured. The exchange went as follows:

Mr HIGGINS (Victoria). — Is it clear that ‘affecting consuls’ means only affecting consuls as consuls. I do not suppose there would be one law as to consuls in a civil proceeding and another law for other persons?
Mr BARTON. — If my honourable friend reads on he will see that it is clear that this only refers to consuls in their representative capacity.[46]

[46]Official Record of the Debates of the Australasian Federal Convention, Melbourne, 16 March 1898, 2456.

Mackie and Victoria also rely upon the purpose of s 75(ii) in support of a restrictive construction. They accept that, as identified by the Commonwealth, the decision to confer jurisdiction under that sub-section reflects the inherent potential for matters that affect consuls to impact upon Australia’s relations with other countries. They submit that this potential is far greater in matters involving a consul’s official capacity than in those involving their private capacity; for example, a matter involving the registration of a consul’s dog[47] or divorce.[48] They submit that it is only matters affecting consuls in their official capacity that might be thought capable of affecting relationships between nation states and this is reflected in the narrower scope of their immunity, as observed by the Commonwealth.
[47]Sir Owen Dixon, in his evidence before the Royal Commission on the Constitution, said: ‘When does a matter affect a consul? He may be prosecuted in the police court for failing to register his dog; he may be sued for money borrowed. He may, and often does, conduct an independent business as well as exercise the office of consul. Do all the proceedings arising out of the business affect him so that in all his legal relations he is the subject of Federal jurisdiction? If he is an employer, and is the party to an industrial dispute, and is summoned to a compulsory conference in the Arbitration Court, does this raise a question under [s] 75(ii)?’: Royal Commission on the Constitution (Report, November 1929) 102.
[48]In Ohio ex rel Popovici v Agler (1930) 280 US 379, the United States Supreme Court held that Art III, § 2 and relevant statutory provisions did not preclude a state court hearing a divorce suit against a foreign consul (the Vice-Consul of Romania). Holmes J, for the Court, held that the ‘pretty sweeping’ language had to be read against the background of earlier decisions confirming the jurisdiction of State courts in respect of matters of divorce and alimony. The Vice-Consul’s objection to jurisdiction failed.

Victoria emphasises that the ‘affecting jurisdiction’[49] is understood in the United States to be enlivened when consuls are acting in their official capacity. It cites an extract from John Massaro, ‘The Forgotten Jurisdiction’[50] which, in turn, draws on Jones v Le Tombe (‘Jones’)[51] ― a case determined by the United States Supreme Court in 1789, in which an action was brought in the Court’s original jurisdiction by Jones, a citizen of Massachusetts, against the Consul General of the French Republic, as the drawer of a number of protested bills of exchange. Massaro observes:

[T]he affecting jurisdiction does kick in, as does the immunity, where a consul is acting on behalf of his government. The Supreme Court established as much early on, in 1789, in the first of only a handful of cases in which it exercised original jurisdiction under the affecting clause. The Court did not quarrel with plaintiff’s argument that ‘[w]hen a Consul acts as a merchant, and draws bills for cash advanced, he is not entitled to any priviledge [sic],’ but determined, as a factual matter, that the contract involved there ‘was made on account of the government … as an official engagement’ and therefore ruled against [the] plaintiff.[52]

[49]So-called by John C Massaro, ‘The Forgotten Jurisdiction’ (2012) 33 Northern Illinois Law Review 83, 84 (‘Massaro’).

[50]Ibid.

[51](1789) 3 US (3 Dall) 384.

[52]John C Massaro, ‘The Forgotten Jurisdiction’ (2012) 33 Northern Illinois Law Review 83, 101 (citations omitted).

The Court in Jones was not invited to determine if the jurisdiction would also be enlivened if the consul had been acting in a private capacity.

Both Mackie and Victoria focus upon the limited assistance to be drawn from Donyadideh. Mackie observes that there is no record of the issue of the construction of s 75(ii) having been raised or contested in Donyadideh, as opposed to its application, and that, as a consequence, it does not stand as authority for the broad construction. Victoria emphasises that Miles CJ had only been concerned with the scope of the word ‘affecting’, not with the issue of whether the compound-expression ‘affecting consuls’ encompassed consuls acting in a private capacity. That question, it submits, was left unanswered.

In my view, Mackie and Victoria are correct to submit that the decision of Miles CJ in Donyadideh is of limited assistance on the first issue of construction. The report itself gives no indication of the circumstances in which the representatives of Iran were alleged to have been assaulted or the capacity in which those representatives were acting at that time. However, the indictment alleged that the victims were ‘internationally protected persons’ and the offences with which the accused were charged were created under legislation designed to ensure the safety of internationally protected persons. Seven of the accused were charged, under s 8(3B), with the intentional destruction or damage of the official premises of internationally protected persons by fire or explosive. Given the nature of those charges, it can be inferred that the accused targeted the representatives of Iran in their official capacity.[53]
[53]This is confirmed by the judgment delivered by the Full Federal Court on the appeal from conviction: Donyadideh v The Queen [1995] FCA 1425 (Wilcox, Ryan and Higgins JJ). The Court allowed the appeal, quashed the convictions and set aside the sentence imposed by Miles CJ. It held that the jury’s verdict was unsafe and unsatisfactory because there was expert evidence supporting the possibility of automatism. The Court described the incident that led to the charges as follows: ‘The Crown case at the trial was that the appellant was one of a number of people who invaded the grounds of the Iranian Embassy on 6 April 1992, damaging property and assaulting a member of the Embassy staff … It seems that the original intention of the demonstrators, mostly Ethnic Iranians who had left Iran because of dissatisfaction with the current government, was to hold a demonstration. … However, at the commencement of the planned demonstration, the Embassy gates unexpectedly opened and the demonstrators poured through. The appellant was amongst them. He was an Iranian who had fled Iran after being extensively tortured by government agents’: [1995] FCA 1425, [4].

However, more importantly, there is no record of the issue of the construction of s 75(ii) having been directly raised in Donyadideh, despite the reference to Quick and Garran, and there was no suggestion that the entitlement to apply for criminal compensation, to which Miles CJ attached considerable importance, distinguished between victims of crime in official or private capacities. Accordingly, the observations of Miles CJ do not directly assist on the question of the capacity in which consuls must be affected to fall within the scope of s 75(ii). In my view, they support neither a broad nor a narrow construction on this issue.

In any event, I consider it unnecessary to express any concluded view on this first principal issue of construction. It is not in contest that s 75(ii) at least includes matters that affect consuls in their official capacity and this is the construction I am prepared to adopt as a working assumption. If the separate question can be answered on the basis of this assumption, this means it will be unnecessary to determine the issue of whether ambassadors and diplomats fall within the scope of s 75(ii) by reason of being ‘representatives of other countries’ or what the implications of that might be for s 75(ii) as a whole with respect to the distinction between official and private capacities.[54]
[54]Chief Executive Officer of Customs v El Hajje (2005) 224 CLR 159, 171 [28] (McHugh, Gummow, Hayne and Heydon JJ); [2005] HCA 35.

In my view, an appropriate way of approaching the dispute is to examine, as a first step, whether it can be characterised as a matter that affects the Consul General of Turkey in an official capacity. If it can be so characterised, the matter falls within s 75(ii) and the question of whether s 75(ii) might also be capable of being engaged where a matter affects consuls in their private capacity must await to be determined on another day.

(2) What is the meaning of matters ‘affecting’ in s 75(ii)?

It is convenient to turn then to the second principal issue of construction; namely, the meaning and scope of the word ‘affecting’ in the context of the expression ‘matters affecting’.

Turkey submits that the words ‘matters affecting’ ought be interpreted broadly. To do so, it argues, would be consistent with Miles CJ’s conclusion in Donyadideh[55] that the alleged victim of a crime would be a person ‘affected’ by the matter involving the prosecution of the offender, and would accord with a plain reading of s 75(ii).
[55]See [34] above.

Mackie urges the adoption of a more confined approach. It submits that, in order to determine whether a proceeding is a ‘matter affecting’ consuls, it is necessary to identify the rights, duties and liabilities in controversy and to ask what the effect on the consul would be if the resolution of the controversy involved all the claims being established. If the matter does not result in the consul being found to have (or not have) a particular right, duty or liability (such as, say, the right to occupy a particular property, or a liability to pay a debt), the matter would not be one ‘affecting’ the consul. Alternatively, if the matter does have an effect upon a particular right, duty or liability, the focus of the inquiry would shift to whether the effect identified is ‘non-tenuous’, and, by reference to the first issue of construction, whether the effect relates to the consul’s official capacity.

This approach to s 75(ii) is submitted to accord with the meaning and operation of the word ‘matter’. As Mackie observes, the word ‘matter’ has acquired a well-established definition that was explained by Kiefel CJ, Keane, Nettle and Gordon JJ in Palmer v Ayres[56] as follows:

A ‘matter’, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding — ‘controversies which might come before a Court of Justice’ (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. ...
The requirement that, for there to be a ‘matter’, there must be an ‘immediate right, duty or liability to be established by the determination of the Court’ reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.[57]

[56](2017) 259 CLR 478; [2017] HCA 5.

[57]Ibid 490–1 [26]–[27] (emphasis in original) (citations omitted).

As the identification of a matter will typically involve identifying the rights, duties or liabilities to be established by the resolution of the relevant controversy, by extension, Mackie submits, there must be an effect on a right, duty or liability of the consul for a matter to ‘affect’ a consul in the requisite sense.

Mackie also relies upon the context of s 75(ii). Section 75(ii), by contrast with s 75(iii) or s 75(iv),[58] does not identify a class of matters by reference to the identity of the parties involved. Mackie submits that there may be occasions where even though a consul is a party to a matter, s 75(ii) is nonetheless not engaged. This might include, for instance, where the rights, duties or liabilities involved in the proceeding do not ‘affect’ the consul.[59] Conversely, Mackie concedes that there may be occasions where although a consul is not a party to a matter, it is still sufficiently ‘affected’ by the matter to attract federal jurisdiction, as was the case in Donyadideh.[60]
[58]See [30] above.
[59]Kita v Matuszak (1970, Mich Ct App) 175 NW 2d 551 (‘Kita’) was relied upon by Mackie as an example where none of the rights, duties or liabilities to be determined in the proceeding affected a consul. In Kita, the Consul General of Poland commenced a proceeding in a State court, under a power of attorney, for some Polish nationals, alleging that the defendant had caused to be probated by fraud and deceit a false will of his sister. The defendant brought a counterclaim against the Consul General for libel alleging that, by the proceeding, the Consul General had accused the defendant of criminal acts without foundation. The Consul General moved to strike out the counterclaim, on the basis that the State court had no jurisdiction to determine it. The circuit court denied the motion on the basis that the consul had voluntarily subjected himself to the jurisdiction. The Court of Appeals of Michigan held that the Consul General was acting in his official capacity in commencing the proceeding and therefore that the circuit court could not assert jurisdiction in respect of the counterclaim because, under the relevant federal statute (28 USC § 1351), exclusive jurisdiction was said to lie with the Federal courts (except for divorce and alimony): Kita (1970, Mich Ct App) 175 NW 2d 551, 553 [2], [4]. The Court of Appeals referred (at [4]) to Valarino v Thompson (1853) 7 NY 576, where it was observed that the ‘United States government has an interest in maintaining this exclusive jurisdiction, for the purpose of preventing it from being involved in controversies with foreign powers without its consent’. However, in reversing the circuit court, the Court of Appeals apparently saw no barrier to the State court determining the proceedings commenced by the consul under a power of attorney for the Polish nationals. Mackie submits that this result is best explained on the basis that, although the consul commenced the proceeding in his official capacity, it was not a case ‘affecting’ the consul because his only involvement was as an agent for the Polish nationals. In my view, Kita is of little relevance.
[60]Mackie accepts that the application of the phrase ‘matters affecting’ in Donyadideh was appropriate even though the consul was not, and could not be, a party to the criminal prosecution.

Mackie also contrasts the word ‘affecting’ in s 75(ii) with the words ‘relating to’ which appear in s 76(iv). Section 76 reads:

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:
…
(iv)relating to the same subject-matter claimed under the laws of different States.[61]

[61]Emphasis added.

The difference in wording is said to indicate that the provisions were intended to require different kinds of relationships. The words ‘relating to’ are understood to express a broad connection whereas s 75(ii) demands a closer type of relationship, namely, one dependent on the identification of an ‘effect’. Thus, where the factual substratum of a controversy that relates to or involves a consul might make the matter one ‘relating to’ a consul, Mackie submits it would not necessarily make it one ‘affecting’ a consul.

Mackie contends that this narrow approach is supported by Donyadideh because the decision turned on the statutory right to apply for compensation enjoyed by the internationally protected persons under the relevant territory legislation. Contrary to the submissions of Turkey, Mackie urges that the reasoning of Miles CJ does not reflect a broad approach to the word ‘affecting’ and, insofar as it might be viewed as favouring a broad approach, it ought not be followed. Mackie also relies upon Ortega,[62] mentioned above,[63] in which the United States Supreme Court held that a prosecution for an assault against a foreign minister did not ‘affect’ ‘ambassadors, other public ministers and consuls’ within the meaning of Art III, § 2 of the US Constitution.
[62](1826) 24 US (11 Wheat) 467.
[63]See [36] above.

Mackie, supported by Victoria, also relies upon Farnsworth v Sandford (‘Farnsworth’),[64] a decision at first instance of Judge Underwood of a district court of Georgia, who took a narrow view of the meaning of ‘affecting’, largely on public policy grounds. Judge Underwood considered whether an indictment charging an American citizen and two ex-attachés to the Japanese embassy with conspiracy under the Espionage Act, 50 USCA §§ 32, 34 was a case ‘affecting’ those ministers where the ex-attachés were never arrested. The American citizen was arraigned alone. The judge concluded the prosecution did not ‘affect’ the ministers and that he had jurisdiction to try the matter in the district court. He observed that the ministers had not been ‘prosecuted, nor were their persons in any manner subjected to threats, arrest, punishment, or any control whatsoever’ and that ‘[t]hey were not called upon to do anything whatsoever and their prosecution or conviction was in no way necessary to the establishment of the case against [the] petitioner’.[65] He considered the absurdity that would arise if a slight involvement by a minister ousted district court jurisdiction:

According to [the] petitioner’s contention, any number of conspirators against the safety of the United States would be afforded immunity from their crimes, however heinous and dangerous, if only a minister of a foreign country should be charged in the indictment, though not prosecuted, with conspiring with defendants. The logic of such argument would lead to the absurdity of holding that a court in such case would be ousted of jurisdiction, if it should appear even from the evidence that a foreign minister was involved in any manner, whether innocently or criminally and however slightly, because such involvement, under [the] petitioner’s definition of the word ‘affecting’, would make the case one affecting a minister.[66]

[64](1940) 33 F Supp 400.

[65]Ibid 401.

[66]Ibid 401–2.

He referred to Ortega:

The Supreme Court, however, in United States v Ortega, did hold that a criminal case against an individual who had assaulted a public minister was not a case ‘affecting’ a public minister. The Court, of course, meant that such a case did not affect a public minister, in the sense that the word is used in the Constitution, but as a matter of fact, such case did actually affect him. The fact the prosecution was for his protection and its effect was favorable and not adverse to him, did not prevent the case being one ‘affecting’ a foreign minister, if the word ‘affecting’ is given a strict literal meaning.
Necessarily the word ‘affecting’ must be given a reasonable and sensible meaning in light of the purposes of the Constitution. A line must be drawn somewhere, and it seems to me that a proper construction of this Constitutional provision is that it was not intended to deny jurisdiction to district courts in cases like the one against [the] petitioner.[67]

[67]Ibid 402 (citations omitted).

The decision was subsequently upheld by the Court of Appeals for the Fifth Circuit.[68] The Court noted that a case against an attaché that is instituted after he ceases to be attached to an embassy and has returned to his own country does not ‘affect an ambassador or minister within the meaning of the Constitution’.[69] It nevertheless proceeded to consider the broader circumstances, emphasising that the Japanese public ministers were not ‘affected’ because there was complete severance of the case against them from that against the American citizen:

[W]e think that when the Japanese defendants were not arrested and Farnsworth was arraigned alone there was as complete a severance of the case against him as though he alone had been indicted. The case to be tried then in no substantial way affected the ex-attachés in Japan, or the Japanese Ambassador. Each of course would be concerned as the trial might involve reflections on the character and conduct of the ex-attachés, but the case in its results would not touch the person or goods or servants of any of them. The words of the Constitution … have never been given their broadest meaning. In United States v Ortega, where one was indicted for assaulting an ambassador, it was held the case affected only the accused and the United States; although self-defense because of first attack by the ambassador might be the issue to be tried. The ambassador’s feelings, his integrity as a witness, and his standing as a man might all be involved, but he is held not affected.[70]

[68]Farnsworth v Sandford (1940) 115 F 2d 375 (Sibley, Holmes and McCord JJ).

[69]Ibid 379.

[70]Ibid (emphasis added) (citations omitted).

The Commonwealth describes its overall position as recognising that a matter will ultimately ‘affect’ a consul where it bears a non-tenuous connection with the consul, at least in the consul’s official capacity. It accepts that the clearest instance where this connection will be present is where a consul is joined as a party to a proceeding, in which case the matter will affect their rights or interests directly. However, it recognises that a consul need not necessarily be a party to be someone ‘affected’ — especially where, as here, the party is the nation state that the consul represents. Indeed, the Commonwealth submits that had the framers intended to confer jurisdiction only for those matters where a consul is a party, they would have naturally adopted the same language used in ss 75(iii) and (iv).[71] It submits that the decision to identify the matters within s 75(ii) by use of the word ‘affecting’, rather than by reference to the identity of a party, strongly suggests a broader application. The word ‘affecting’ thus bespeaks a loose relationship between a matter and a consul, and ought to be read liberally.[72]
[71]See [30] above.
[72]PH Lane, Lane’s Commentary on the Australian Constitution (LBC Information Services, 2^nd ed, 1997), 558 §38(3).

The Commonwealth relies on the approach of Miles CJ in Donyadideh, who, as mentioned above,[73] held that it was ‘difficult ... to see that ... the alleged victim of a crime is not “affected” by the offender’, even though the victim is not a party to the proceeding. This approach echoes that of Marshall CJ in Osborn, who observed, as mentioned,[74] that Art III, § 2 of the US Constitution was intended to confer jurisdiction over all cases by which foreign representatives were ‘in any manner affected’. Marshall CJ, delivering the opinion of the Court, gave as an example of where the public minister is ‘affected’, circumstances in which the secretary or servant of a public minister is arrested.[75] The focus is on any practical effects on the consul quite independently of whether the orders made in a proceeding bind the consul or have a legal consequence for the consul.
[73]See [37] above.
[74]See [36] above.
[75](1824) 22 US (9 Wheat) 738, 854–5.

The Commonwealth further submits that the strict approach urged by Mackie — that is, that s 75(ii) is only engaged were the determination of a claim will affect the rights, duties or liabilities of a consul — is wrong because it reflects the test applied for joinder of a party, in accordance with that endorsed by the High Court in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd:[76]

Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.[77]

[76](2010) 241 CLR 1; [2010] HCA 19.

[77]Ibid 46 [131] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) (emphasis added). The test for joinder is long-standing; see Moser v Marsden [1892] 1 Ch 487, 490 (Lindley LJ).

According to the Commonwealth, Mackie’s strict approach fails to distinguish between the proceeding, in which claims are made, and the matter, the underlying justiciable controversy. ‘Matters affecting’ is broader than ‘cases affecting’ found in Art III, § 2 and deliberately so.[78] To determine if a matter falls within s 75(ii) requires an examination of the relationship between the facts of the underlying controversy and the consul, not an examination of the relationship between the relief claimed in the proceeding and the consul. It would be unduly narrowing, submits the Commonwealth, to focus only upon the effect on a consul if the relief sought in the proceeding was granted or refused.
[78]Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 650 [156] (Kirby J); [2000] HCA 11.

In my view, there is much force in the Commonwealth’s submission that it is important to recognise the distinction drawn in the Constitution between those matters in which federal jurisdiction is attracted because of the nature of the party to a proceeding and those matters that attract federal jurisdiction because of some other feature. The clearest example of the former is s 75(iii) that applies only where the Commonwealth is a party or a person suing, or being sued on behalf of the Commonwealth, is a party. The nexus between the matter and the Commonwealth is direct. The focus upon the parties to the proceeding is also found in s 75(iv), the diversity jurisdiction, that applies where the States are parties to the proceeding, or the residents of different States are parties, or the proceeding is between a State and a resident of another State. The nexus between the proceeding and the relevant parties (the States or residents of different States) is direct. Section 75(v), while its focus is on the relief sought, a writ of mandamus or prohibition or an injunction, also treats as relevant the party against whom the relief is sought, namely ‘an officer of the Commonwealth’. In contrast to these three categories are those which do not depend upon the status of the party to a proceeding, namely, matters arising under a treaty (s 75(i)) and, as discussed, ‘matters affecting’ consuls (s 75(ii)). In respect of s 75(ii), the context indicates that a broader connection between a matter and a consul will suffice.

It would be wrong, in my view, to construe the word ‘affecting’ in s 75(ii) so narrowly as to require that the matter have an effect on a right, duty or liability of a consul or that relief could be ordered against them. I agree with the Commonwealth that such a strict requirement would be tantamount to demanding that the test for joinder of a party was satisfied. This would ignore the differences in language in the various sub-sections of s 75 and the careful distinctions they reflect. It would require, for example, that, in a proceeding for monies outstanding under the contract (as Mackie claims) the matter would only ‘affect’ the consul if the consul would be liable for the outstanding payments. This would be to commit the error of treating s 75(ii) as though it only applied to matters in which a consul, or, perhaps, a person suing or being sued on behalf of a consul, is a party.

As mentioned, Mackie concedes that s 75(ii) may be relevantly attracted although a consul is not a party.[79] It is difficult to understand how that concession is consistent with the insistence that federal jurisdiction will be attracted in civil matters only where there is an identifiable right, duty or liability of the consul in respect of which the matter, and its resolution, has an effect.
[79]See [65] above.

Nevertheless, it may be accepted that the word ‘affecting’ is of more confined scope than the words ‘with respect to’ in the conferral of legislative power under ss 51 and 52 of the Constitution. Those words reflect a broad relationship, where the necessary connection can be approached as a negative proposition. The words ‘with respect to’, in this context, permit any connection to suffice unless the connection is ‘so insubstantial, tenuous or distant’ that the proposed law cannot sensibly be described as a law ‘with respect to’ a particular head of power.[80] The word ‘affecting’ is also narrower than the words ‘in respect of’ that appear in the power conferred on the Commonwealth Parliament by s 51(xxxvi).[81] Those words in that context require only a loose connection because they ‘connote “the widest possible meaning of any expression intended to convey some connexion or relation between two subject-matters”’.[82]
[80]Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, 369; [1995] HCA 16 (McHugh J, citing the observations of Dixon J in Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 79; [1947] HCA 26).
[81]Section 51(xxxvi) provides that the Commonwealth Parliament has power to make laws with respect to ‘matters in respect of which this Constitution makes provision until the Parliament otherwise provides’ (emphasis added).
[82]Spence v Queensland [2019] HCA 15, [132] (Nettle J, citing from the observations of Mann CJ in Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110, 111).

It may also be accepted that the word ‘affecting’ in s 75(ii) is more limited in scope than the expression ‘relating to’ in ss 10 and 31 of the Constitution which has been held equivalent to the nexus required by the words ‘with respect to’ in s 51(xxxvi).[83] The words ‘relating to’ are of wide import and can refer either to a direct or indirect connection between two subject matters, the degree of connection being determined by reference to the text, context, legislative purpose, history of the provision and facts of the case.[84] The words ‘relating to’ also appear in s 76(iv) and their proximity to s 75(ii) appears to reflect a deliberate choice in s 75(ii) not to allow for such an expansive connection.
[83]Spence v Queensland [2019] HCA 15, [70] (Kiefel CJ, Bell, Gageler, and Keane JJ).
[84]Minister for Home Affairs v DMA18 [2020] HCA 43, [43] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

The authorities drawn from the United States do not tend in a uniform direction and, for that reason, are, ultimately, of little assistance. There is the conflict between the rejection of a broad construction in Ortega and the endorsement of such a construction in Osborn. The rejection in Farnsworth that the case was one affecting public ministers was dependent upon there being a complete severance of the charges against the defendant from those against the two ex-attachés to the Japanese embassy. This reveals nothing about what would amount to the required connection in other circumstances. However, the Farnsworth decisions are nevertheless useful in that they rejected any reliance upon an incidental or tangential connection, where a consul’s feelings or integrity as a witness or standing as a person would be seen as sufficient.[85] I accept that such an incidental relationship would be insufficient.
[85]The Commonwealth came close to submitting that a consul would be relevantly ‘affected’ if the consul was a witness in a proceeding and their credibility or integrity was questioned. By way of example, it submits that a non-party witness may be ‘affected’ by a proceeding, and what is said about them in a proceeding, although neither the grant nor refusal of the relief sought has any effect upon them. This may be particularly so where a plaintiff sues for defamation against a media company in respect of imputations about the plaintiff’s conduct towards a witness. The trial may cast aspersions on the credibility of the witness although no rights, duties or liabilities of the witness are in issue. See, eg, Rush v Nationwide News Pty Ltd [2018] FCA 357; Rush v Nationwide News Pty Ltd [No 7] [2019] FCA 496. The Farnsworth decisions clearly reject this loose degree of connection.

It is clearly not necessary for a consul to be joined as a party for the matter to be one ‘affecting consuls’. Nor is the question to be determined by looking at whether relief could be granted against a consul.[86] In my view, for a matter to be one ‘affecting’ consuls there must be some tangible connection between the matter and consuls that is not as rigorous as requiring that the matter has an effect on the rights, duties or liabilities of a consul but nevertheless does not allow any loose connection to be sufficient. The meaning of ‘affecting’ sits somewhere between the two, recognising that a broad construction would properly reflect the fact that what is being construed is a conferral of jurisdiction on a court by an instrument intended to endure.
[86]See [77] above.

In my view, for a matter to be one ‘affecting consuls’ requires that there is a real and substantial connection between the matter and consuls. This is an evaluative task, taking into account many factors and involving questions of fact and degree. The inquiry is to identify a positive connection. Proceeding on the assumption that the jurisdiction under s 75(ii) is conferred at least with respect to consuls in their official capacity, what enlivens the jurisdiction is a real and substantial connection between the matter and consuls in their official capacity. On this approach, the nexus is to a consul’s official status; it is not an inquiry about an effect upon them as an individual.

The question to be confronted is this: is there a real or substantial connection between the dispute and the Consul General of Turkey in an official capacity so that it can be concluded that the matter is one ‘affecting consuls’?

Does the matter affect the Consul General for Turkey in an official capacity?

Turkey points to a number of indicia said to demonstrate that the matter before the Tribunal was one that affected its Consul General. In particular, it relies on the subject-matter of the contract being a ‘consular residence’. Mackie denies this and submits that, like the demolished residence, the building was to be used as a ‘private residence’ of Turkey’s Consul General in Melbourne. Mackie contrasts the ‘private residence’ with what it submits is Turkey’s ‘consular post’ that it claims is located in South Melbourne, where the business of the processing of visas and passports occurs. I examine further below Mackie’s understanding of a ’consular post’.[87]
[87]See [89]–[90] below.

Mackie submits that the residence of a consul has no particular status at international law because it is not ‘used exclusively for the purposes of the consular post’ which the 1963 Convention requires for a residence to be ‘consular premises’. It also draws a contrast between the private residence of a consul and the private residence of a diplomat which is afforded special status at international law.[88]
[88]The 1961 Convention, art 30(1).

The question arises whether the building can be properly characterised as ‘consular premises’.

(1)Is the building properly characterised as ‘consular premises’?

It is an agreed fact between the parties, recorded in the agreed summary that informs the separate question, that the contract between the parties was for the ‘demolition of an existing residence and the construction of a new consular residence for $4,350,000 plus GST’.[89] Putting that apparent concession to one side and focusing upon the substance,[90] it is useful to consider whether the building amounts to ‘consular premises’ in accordance with the definition under the 1963 Convention.
[89]Agreed summary [1]. The agreed summary informed the separate question in accordance with the Orders made on 2 July 2020. Ralph Mackie in his witness statement also refers to the building to be constructed as ‘the Turkish Consulate’. He also says that Mackie ‘had not before constructed a Consulate building.’
[90]There is no definition of ‘consular residence’ in the 1963 Convention.

The 1963 Convention defines ‘consular premises’ to mean ‘the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post’.[91] The expression ‘consular post’ is defined to mean ‘any consulate-general, consulate, vice-consulate or consular agency’.[92]
[91]The 1963 Convention, art 1(j).
[92]Article 1(a).

It is apparent from the definition of ‘consular post’, and its contrast with ‘consular premises’, that a consular post is not, as Mackie submits, a physical place. It is not to be identified with consular premises and, in particular, is not limited to those consular premises made up of the physical offices where the business of processing passports and visas is conducted. A ‘consular post’ is an abstract concept perhaps best understood as an official position of authority associated with the capacity to exercise consular functions in the ‘receiving State’. It is an overseas posting of a representative from one country to another. It is associated with a ‘consular district’, the ‘area assigned to a consular post for the exercise of consular functions’. A ‘consular post’ is thus an official presence of the ‘sending State’ in the ‘receiving State’. The ‘head of consular post’ is defined as ‘the person charged with the duty of acting in that capacity’.[93]
[93]Article 1(c).

A ‘consular officer’ means ‘any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions’.[94] A consular post may be made up of many members.
[94]Article 1(d).

Article 5 describes ‘consular functions’ in the following way:

Consular functions
Consular functions consist in:
(a)protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

By this arrangement, it is ensured that the Commonwealth Parliament is in a position to make laws as to the extent to which courts other than the High Court can exercise jurisdiction in the matters in ss 75 and 76. The matters in s 75 can be seen to have ‘constitutional’ status, in that no antecedent legislation conferring jurisdiction on the High Court is required in order to engage the power in s 77, and no law of the Commonwealth Parliament can deprive the High Court of its jurisdiction in respect of those matters. Put differently, the matters in s 75 are matters as to which the Constitution admits of no room for argument: they are at the core of federal jurisdiction.

Within this framework, s 75 confers jurisdiction in two ways that, while different, are not mutually exclusive. Paragraphs (i) and (ii) confer jurisdiction by reference to the subject matter of a ‘matter’. The remaining paragraphs confer jurisdiction by reference to parties — either parties to a proceeding (paras (iii) and (v)) or parties to a controversy which constitutes a ‘matter’. In the case of s 75(ii), as Marshall CJ observed of the equivalent provision of the United States Constitution, ‘the nature of the controversy is, in some degree, blended with the character of the party’.[109] The same is true of s 75(v).[110]
[109]Osborn v Bank of the United States (1824) 22 US (9 Wheat) 738, 854 (‘Osborn’).
[110]Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557, 579 (Latham CJ).

The purpose of s 75(ii) is not difficult to distil. Just as the treaties to which s 75(i) refers are significant to relations between Australia and other countries, so is the treatment of the consuls or other representatives of those other countries. As Alexander Hamilton expressed it in the American context:

Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public piece, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them.[111]

[111]Alexander Hamilton, ‘The Federalist No 81’ in Alexander Hamilton, John Jay and James Madison, The Federalist: A Commentary on the Constitution of the United States, ed Edward Mead Earle (Modern Library, 1941) 529.

The reference to ‘public ministers’ in this extract is explained by the broader terms of Art III, § 2 of the United States Constitution, which refers to ‘Cases affecting Ambassadors, other public Ministers and Consuls’. The emphasis on consuls in the Australian provision, or more particularly the absence of reference to ambassadors and public ministers, is explained by the responsibility of the United Kingdom government for the conduct of Australia’s foreign relations when the Constitution was framed.

Of course, the operation of s 75(ii) must also take into account s 77, which serves to ensure that the Commonwealth has control over which courts exercise federal jurisdiction, and that those courts meet the ‘minimum characteristics of a Ch III court, so as to give rise to a judgment or order that is appealable directly to the High Court, subject only to such exceptions or regulations as the Commonwealth Parliament may prescribe under s 73(ii).’[112] The proceeding in which the matter is heard and determined need not, therefore, be ‘submitted in the first instance to the highest judicatory of the nation’. But it must be heard and determined in a Ch III court exercising jurisdiction in accordance with laws of the Commonwealth Parliament. [113]
[112]Burns v Corbett (2018) 265 CLR 304, 346 [68] (Gageler J).
[113]In fact, in the United States this has never been necessary in every matter affecting consuls. For instance, the Judiciary Act of 1789 vested the federal district courts with jurisdiction (exclusive of the State courts) in ‘all suits against consuls or vice-consuls’, the Supreme Court with original but not exclusive jurisdiction in ‘all suits … in which a consul or vice-consul shall be a party’, and the circuit courts with jurisdiction in civil suits in which an alien is a party: Bors v Preston (1884) 111 US 252.

It is not necessary in this case to examine the scope of the expression ‘other representatives of other countries’.[114] It suffices that a consul is a representative of another country. Quick and Garran quote Joseph Story on this point:

Consuls, indeed, have not in strictness a diplomatic character. They are deemed as mere commercial agents, and therefore are subject to the municipal laws of the countries where they reside. Yet, as they are the public agents of the nation to which they belong, and are often entrusted with the performance of very delicate functions of State, and as they might be greatly embarrassed by being subject to the ordinary jurisdiction of inferior tribunals, State and national, it was thought highly expedient to extend the original jurisdiction of the Supreme Court to them also.[115]

[114]But see as to honorary consuls, eg, Foxgord v Hischemoeller (1987, 9^th Cir) 820 F 2d 1030.

[115]John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901) 771.

Although the position regarding consuls has evolved, and it is no longer accurate to describe them as ‘mere commercial agents’,[116] they remain representatives of other countries and the rationale for treating legal proceedings affecting them as a special category — their importance to relations between Australia and other countries — is, if anything, stronger than it was in earlier times.
[116]See Consular Privileges and Immunities Act 1972 (Cth).

In approaching the construction of s 75(ii), this rationale must be borne in mind. Other general principles of interpretation, to which the Commonwealth Attorney-General pointed in his submissions, are also applicable. First, the Constitution is an instrument of government intended to endure and apply to changing circumstances.[117] Secondly, constitutional grants of jurisdiction are to be interpreted liberally according to their terms without imposing limitations not found in those terms.[118] Taken together, these considerations all point to a broad interpretation of ‘matters … affecting consuls’. However, they do not indicate the content of that expression.
[117]Singh v Commonwealth (2004) 222 CLR 322, 348–9 [53] (McHugh J), 385 [159] (Gummow, Hayne and Heydon JJ).
[118]Owners of ‘ShinKobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404, 424 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

Consuls in a ‘private’ or ‘official’ capacity

Before turning to the meaning of ‘matters … affecting consuls’, it is convenient to refer to some aspects of the present case that, in my opinion, narrow the scope of the necessary construction exercise. First, the present case concerns the official residence of the Turkish Consul-General in Melbourne (to whom it is convenient to refer, without disrespect, as the ‘consul’). That residence serves as both the private home of the consul and the consul’s family, and as a place for some official business of the consul, including the holding of social functions and other events in which the consul acts in an official capacity. The building therefore has both private and official consular purposes and uses.

Secondly, the consul in using the building for official purposes does so as the representative of the Republic of Turkey.

Thirdly, it may be assumed, for the sake of argument, that the consul’s residence has a recognised status under both international and domestic law, as ‘consular premises’ within the meaning of the Vienna Convention on Consular Relations.[119]
[119]Opened for signature 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) (‘the 1963 Convention’); Consular Privileges and Immunities Act 1972 (Cth) s 5, sch.

Fourthly, again as representative of the Republic of Turkey, the consul was closely involved in the process of contracting for the demolition of the previous residence and the construction of the new building, and may be assumed to have been involved in overseeing, on behalf of the Republic of Turkey, both the works and the litigation which followed (while not being a party to that litigation).

These considerations mean that it is not necessary, in this case, to decide whether s 75(ii) is attracted when a matter ‘affects’ a consul in only a private capacity. The course of events leading to the construction of the residence, the purposes of that construction, at least some uses of the building once constructed, and the related litigation all involved the consul in an official capacity.

Meaning of s 75(ii)

The term ‘affecting’ is not used elsewhere in Ch III of the Constitution to describe a connection between two things.[120] Although the choice of language may be traced to its United States antecedent, the difference from that used elsewhere in ss 75 and 76, in particular, must be taken to be intentional. As Tate JA explains, the word ‘affecting’ has been employed, rather than the very broad expressions ‘relating to’ (used in s 76(iv)) or ‘with respect to’ (in s 77), and ‘affecting’ should not be given the same meaning as such expressions. Something narrower, and more specific, is indicated.
[120]It is used in one other place: s 128, in making provision for altering the Constitution, provides that an alteration diminishing the representation of any State in the House of Representatives or the Senate, or altering the limits of a State, ‘or in any manner affecting the provisions of the Constitution in relation thereto’ cannot become law unless the majority of electors voting in that State approve the proposed law. See also the uses of ‘affected’ in ss 123 and 124 and ‘affect’ in s 126.

The Commonwealth Attorney-General submits that a ‘non-tenuous connection’ is required. Tate JA adopts a test that looks to a ‘tangible’ or ‘real or substantial connection’ between the ‘matter’ and a consul. In my respectful opinion, there are two fundamental difficulties with these approaches. First, it is not clear that either test is, in fact, any different to the test used to decide whether one subject matter is ‘with respect to’ or ‘relating to’ another. There, as well, it is said that the connection must not be ‘insubstantial, tenuous or distant’.[121] The tests appear to be at grave risk of elision.
[121]Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 79 (Dixon J); New South Wales v Commonwealth (2006) 229 CLR 1, 113 [174], 143 [275] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). The two broader expressions have been held to have equivalent meanings: Spence v Queensland (2019) 93 ALJR 643, 667 [70] (Kiefel CJ, Bell, Gageler and Keane JJ).

Secondly, and more fundamentally, the difference between ‘affecting’, on the one hand, and ‘relating to’ or ‘with respect to’, on the other, is not simply one of degree. The difference also concerns the character of the connection in question. Whereas the latter broad and general expressions look to the existence of a connection between two things, ‘affecting’ is more specific. It involves one thing having an effect on another. If the inquiry is confined to the existence of a connection, that requirement is not addressed.

Dictionary definitions of the word ‘affect’ indicate the content of this additional character. The Oxford English Dictionary gives as a definition of ‘affect’, as a verb: ‘to have an effect on, either materially or otherwise’.[122] A subsidiary meaning, closely related, is ‘to have a material effect on; to make a material impression on; to influence, move, touch’.[123] Similarly, the Macquarie Dictionary defines ‘affect’ as a verb meaning ‘to act on, produce an effect or a change in’.[124] As the Commonwealth Attorney-General pointed out in his written submissions, the Oxford English Dictionary also defines ‘affecting’, as a noun, to mean: ‘the action or process of having an effect on something, either materially or otherwise’.[125]
[122]Oxford English Dictionary (online at 23 March 2021) ‘affect’ (v², def 1).
[123]Ibid ‘affect’ (v², def 1c).
[124]Macquarie Dictionary (online at 23 March 2021) ‘affect’ (v¹, def 1).
[125]Oxford English Dictionary (online at 23 March 2021) ‘affect’ (n²).

All these definitions have in common the notion of ‘effect’ in the sense of one thing acting upon another so as to have an impact of some kind. The identification of an effect of the matter on consuls is therefore a key element of the inquiry. Since a matter is a justiciable controversy between parties, the effect of a matter on consuls is the effect on consuls of the resolution of the controversy. The nature of the effect in question must no doubt be such that the effect is not insubstantial, tenuous or distant. But that is not a sufficient criterion in itself.

This emerges not only from a consideration of the language of the provision. It is consistent with its purpose in defining a core aspect of federal jurisdiction, in that it looks beyond the existence of a mere relationship between the subject matter of the controversy and consuls and demands some kind of effect or impact upon consuls. It is the effect or impact on consuls of the resolution of the matter, not simply a relationship or connection between consuls and the matter, that gives rise to the possibility of the matter bearing upon relations between Australia and other countries.

In seeking then to identify the kind of ‘effect’ with which s 75(ii) is concerned, two preliminary points can be made.

First, one way in which a consul may be affected by a matter is where the proceeding in which the controversy constituting the matter is heard and determined may determine rights, interests, liabilities or obligations of the consul. But that cannot be an exhaustive description of the scope of s 75(ii), or it would have little or no difference to a head of jurisdiction specifying matters in which a consul is a party. Given the contrasting ways in which the heads of jurisdiction in s 75 are expressed, the notion of ‘affecting’ must be taken to be broader than merely that which would entitle a consul to be a party to the proceeding.

Secondly, as Tate JA points out, little guidance is obtained from the United States decisions in this area that predated Federation. In Osborn, which relevantly concerned the different question whether the United States was a party to a proceeding brought against the Bank of the United States, Marshall CJ said this:

This Court can take cognizance of all cases ‘affecting’ foreign ministers; and, therefore, jurisdiction does not depend on the party named in the record. But this language changes, when the enumeration proceeds to States. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reason which all comprehend, to give the national Courts jurisdiction over all cases by which they were in any manner affected. In the case of States, its immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties.[126]

While the words ‘in any manner affected’ are doubtless broad, in the context of drawing attention to the difference in treatment of different categories of case, the use of these words in this passages provides only the slenderest foundation for concluding that ‘affecting’ had a broad interpretation under the United States Constitution when s 75(ii) was adopted.

[126](1824) 22 US (9 Wheat) 738, 855.

The case of United States v Ortega[127] is in the converse position. It concerned a charge of assault in which the alleged victim was a charge d’affaires of the King of Spain. Washington J said:

The Court is clearly of opinion, that this is not a case affecting a public minister, within the plain meaning of the constitution. It is that of a public prosecution, instituted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations, and that of the United States, offended, as the indictment charges, in the person of a public minister, by an assault committed on him by a private individual. It is a case, then, which affects the United States, and the individual whom they seek to punish; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution, or in the costs attending it.

The decision in Ortega shows that the phrase ‘in any manner’ as used in Osborn, is not to be taken literally. Perhaps Ortega suggests that an overly broad view is not to be taken of ‘affecting’,[128] but again the decision offers no clear guidance as to the meaning of the word.

[127](1826) 24 US (11 Wheat) 467.

[128]See also Farnsworth v Sandford (1940) 33 F Supp 400, 401–2; Farnsworth v Sandford (1940) 115 F 2d 375, 379 [10]; Haddad v United States (1965) 349 F 2d 511, 514–5 [6–9].

In the end, the question whether a matter is one ‘affecting’ consuls must be one of fact to be decided according to the circumstances of any given case. Consistently with the approach taken in other areas where the Constitution looks to a connection between two things, the effect of the resolution of a matter on consuls must not be insubstantial, tenuous or distant. But otherwise, any effect will suffice.

Application of s 75(ii) to this case

In approaching s 75(ii), then, the first step will be to identify the ‘matter’. The second will be to decide whether resolution of that matter has an effect on consuls that is not insubstantial, tenuous or distant.

As to the first step, the meaning of ‘matter’ in Ch III of the Constitution was recently confirmed in Palmer v Ayres:[129]

A ‘matter’, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding — ‘controversies which might come before a Court of Justice’ (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. What comprises a ‘single justiciable controversy’ must be capable of identification, but it is not capable of exhaustive definition. ‘What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’.
The requirement that, for there to be a ‘matter’, there must be an ‘immediate right, duty or liability to be established by the determination of the Court’ reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.[130]

[129](2017) 259 CLR 478, 490–1 [26]–[27] (Kiefel, Keane, Nettle and Gordon JJ).

[130]Citations omitted.

As this passage makes clear, a ‘matter’ is a controversy, being the subject matter for determination in a legal proceeding. It encompasses all claims made within the scope of the controversy, whether or not those claims are ultimately established.

The second step looks to the way in which consuls are apt to be affected by the resolution of the controversy constituting the matter. That will include, but not be limited to, considering how the rights, interests, liabilities and obligations of consuls (or a consul) may be affected. The ‘affecting’ may be more indirect, as well. The decision of Miles CJ in R v Donyadideh[131] shows that more tangential effects may satisfy the test.
[131](1993) 114 FLR 43.

Starting then with identification of the ‘matter’, in this case the scope of the justiciable controversy between the parties is defined by the claims made in the proceeding in the Tribunal. By its second further amended statement of claim dated 13 March 2014, the respondent (‘Mackie’) pleaded the making of a building contract on or about 18 December 2009 between Mackie and the Republic of Turkey. It was pleaded that commencement of the works occurred on about 11 January 2010. Part of the dispute concerns a security provided on about 4 March 2010. A certificate of practical completion was said to have been issued on 8 February 2012. It was then pleaded that a defects liability period ran for 52 weeks from that time until 6 February 2013.

Various claims were then made in relation to the alleged failure of the Republic of Turkey to release the security at the end of the defects liability period, regarding the validity of various directions given for the rectification of defects, as to the costs of certain rectification works, as to the costs of variations made during the course of construction, and as to damages for alleged delays in completing the works.

Mackie claimed an order for specific performance requiring the Republic of Turkey to release the security, declarations as to the validity of certain directions and notices that had been given, a dollar amount in respect of variations, damages in respect of delay or disruption costs and liquidated damages.

By a defence and counterclaim dated 30 April 2015, the Republic of Turkey admitted a number of matters including the issue of the certificate of practical completion and the period constituting the defects liability period. The substance of the claims made by Mackie was contested. In addition, the Republic of Turkey pleaded by way of counterclaim that it was entitled to damages for the costs of rectification works and for extensions of time which were said to have been wrongfully disallowed. The latter matter was said, in the alternative, to warrant an adjustment in the date of practical completion by 32 days in favour of the Republic of Turkey.

In addition, the Republic of Turkey joined the architects responsible for the building project seeking compensation for any damages that it might be ordered to pay to Mackie.

It is plain that the controversy between the Republic of Turkey and Mackie involves contested claims as to the financial obligations of the parties as a result of the performance of the contract for the construction of the consular residence. The litigation was commenced after the construction of the residence was complete. No part of the controversy concerns any work still to be undertaken in respect of the residence. The controversy is about the past performance of a building contract under which the consular residence was constructed. Put differently, the dispute is solely about the payment of money in respect of a contract which has been performed.

The Commonwealth Attorney-General submits that the subject matter for determination in the proceeding ‘concerned a contractual dispute arising from the construction of the consular residence’. So much may be accepted. However, the Attorney-General goes on in his written case to state that a ‘dispute about a contract made by the Consul General in his official capacity is directly connected with the Consul General’s official position, and therefore “affects” the Consul General for the purpose of s 75(ii)’.[132] This submission reflects the test of mere connection which, for the reasons given earlier, fails to give proper effect to the word ‘affecting’. The fact that the dispute is connected with the consul says nothing as to whether the resolution of the dispute affects, in the sense of having any effect upon, the consul.
[132]Written Case [19].

The same vice is apparent in the Attorney-General’s alternative submission, namely, that the proceeding is a matter affecting the consul ‘because it was a matter concerning the demolition and construction of the consular residence’. Again, a test which asks whether the matter ‘concerns’ a consular residence (and therefore, it may be assumed, ‘concerns’ a consul) leaves out of account the requirement that the consul be relevantly ‘affected’ by the matter. Again, the connection with matters consular is insufficient.

In any event, the ‘matter’ is not a controversy as to the demolition and construction of the consular residence but a controversy as to payment of money for having performed that work. It is resolution of the dispute over that payment which constitutes the matter which must ‘affect’ the consul in order for the matter to fall within s 75(ii).[133]
[133]For a comparable case, see Haddad v United States (1965) 349 F 2d 511, which concerned a charge of delivering a forged letter to a United States overseas consul. The United States Court of Appeals for the Ninth Circuit said: ‘This case ‘affects’ Haddad, not the Consul, even though what Haddad did may have ‘affected’ the Consul’: 515 [9] (emphasis added).

In my opinion, no effect on the consul of the requisite kind has been identified. The resolution of the controversy as to how much, if anything, the Republic of Turkey owes Mackie for the construction of the consular residence will have no identified effect on the ability of the consul to use and reside in the residence. Nor has it been suggested that the resolution of the controversy will have any other effect on the consul. At most, it might be speculated that the consul who was responsible for instructing lawyers on behalf of the Republic of Turkey in the litigation would experience professional satisfaction or disappointment, depending on the outcome of the litigation. However, any such subjective reaction, even if proven, would plainly fall within the class of tenuous, insubstantial or distant effects.

Conclusion

For these reasons, in my opinion, the proceeding in the Tribunal was not a matter ‘affecting consuls’ within the meaning of s 75(ii) of the Constitution. It follows that the Tribunal had jurisdiction to hear and determine the proceeding and the question before the Court should be answered ‘no’.

---

*Introduction and summary*.......................................................................................	1
*The contract*.................................................................................................................	3
*Legal proceedings*........................................................................................................	6
*What is the scope of s 75(ii) of the Constitution?*..................................................	9
(1) Does s 75(ii) extend only to consuls acting in their official capacity?...............	11
(2) What is the meaning of matters ‘affecting’ in s 75(ii)?.....................................	22
*Does the matter affect the Consul General for Turkey in an official capacity?*	32
(1) Is the building properly characterised as ‘consular premises’?............................	33
(2) Does the matter relevantly affect Turkey’s Consul General?.............................	39
*Application for leave to rely on evidence of Apak*................................................	41
*Conclusion — Answer to the separate question*....................................................	41

[2021] VSCA 77

30 March 2021