Commission submissions: Langer

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA
DISTRICT REGISTRY
GENERAL DMSION

No.
96 of 1996

BETWEEN:

ALBERT
LANGER

Appellant

-and
-

AUSTRALIAN ELECTORAL
COMMISSION

Respondent

---

SUBMISSION
ON BEHALF OF THE HUMAN RIGHTS COMMISSION

A.
JURISDICION

1.
An appeal lies to the Federal Court from "a judgment or order of a prescribed
court exercising jurisdiction ~der" section 383 of the Commonwealth Electoral
Act 1918 ("the Electoral Act'): sections. 383(9). A prescribed court is defined
in sub-section 383(11) to include the Supreme Court of Victoria.

2.
On 8 February 1996 Mr Justice Beach made injunctive orders against Mr Langer pursuant
to section 383 of the Electoral Act. In making those orders his Honour was exercising
federal jurisdiction.

3.
On 14 February 1996 Mr Justice Beach dealt with an application against Mr Langer
for breach of the earlier injunctive orders made by him pursuant to federal jurisdiction.
His Honour found that Mr Langer had breached the injunctive orders and that "if
he [was] not prevented from doing so he [would] continue to breach" the injunctive
order. His Honour concluded that in "that situation [Mr Langer] leaves me
with no alternative but to sentence him to a term of imprisonment". The punishment
of imprisonment was clearly for a breach of the injunctive order.

4.
The application of 14 February 1996 was made in the same proceeding as the injunctive
proceedings:

(a)
the Court heading and proceeding number are the same;

(b)
the parties are identical;

(c)
the remedy sought and granted on 14 February 1996 was to enforce compliance with
the injunctive orders of 8 February 1996.

5.
An appeal from an order enforcing an injunction granted under section 383 is ancillary
to the order and is itself an order within the contemplation of sub-section 383(9).
An appeal from the enforcement order, therefore, lies to the Federal Court.

6.
As a matter of construction it is unlikely that parliament intended to limit jurisdiction
of the Federal Court to appeals from orders granting injunctions whilst compelling
litigants to appeal to the Supreme Court from any enforcement (or ancillary, e.g.
costs) order of the injunctive orders.

7.
The inconvenient and unnecessarily cumbersome result that a litigant would be
driven to two different forums to appeal from injunctive orders, on the one hand,
and ancillary or enforcement orders, on the other hand, should not be adopted
as a reasonable or likely interpretation of the appellate jurisdiction conferred
by section 383 in the absence of the clearest words.

8.
The presence of sub-section 383(9), and the absence of any provision directing
appeals on enforcement orders to any other court, is consistent with a parliamentary
intention to confer appellate jurisdiction broadly on the Federal Court over both
the injunctive order and any ancillary or enforcement order relating to the injunctive
order.

9. Alternatively,
an appeal from the orders of 14 February 1996 is a matter within the jurisdiction
of the Federal Court pursuant to section 7(5) of the Jurisdiction of Courts
(Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act"):

(a)
the contempt order is a matter "arising under" the Electoral Act;

(b)
the Electoral Act is an Act specified in the Schedule to the Cross- Vesting
Act referred to in section 7;

(c)
the provisions of the Cross- Vesting Act are to be interpreted liberally
to facilitate the determination of disputes in one forum having jurisdiction;

(d)
the Federal Court has jurisdiction to hear appeals from orders made under 18 section
383 of the Electoral Act.

10.
Alternatively, the Federal Court has jurisdiction under section 4(2) of the Cross-Vesting
Act.

11.
Alternatively, the Federal Court has jurisdiction under section 32(2) of the Federal
Court of Australia Act 1976 ("the Federal Court Act").

12.
Federal jurisdiction under section 32(2) is attracted over matters not otherwise
within the jurisdiction of the Federal Court. It is so attracted when the "non-federal"
matter is "associated" with matters over which the jurisdiction of the
Court is invoked.

13.
The facts which gave rise to the contempt are an incident of the controversy that
gave rise to the injunction -they are a repetition of the conduct constituting
the supposed offence under section 329A. They are thus sufficiently "associated"
to fall within the principles expounded in Fencott v. Muller (1983) 152
CLR 570, at p.607.

14.
The associated jurisdiction is attracted, inter alia, where the controversy derives
from "a common nucleus of operative facts" (Fencott at p. 607)
and it is not necessarily that there be a whole coincidence of facts between the
federal and non- federal claim: Fencott at p. 607.

15.
The Federal Court must ask whether the proceeding determined on 8 February 1996
and that determined on 14 February 1996 are in substance "part of the one
controversy". That inquiry depends upon "impression and [...] practical
judgment": Fencott at p. 608; Stack v. Coast Securities (No.9)
Ply Ltd (1983) 154 CLR 261, at p. 294.

16.
Here the injunctive proceeding and the contempt proceeding are part of the one
controversy:

(a)
they arise from the same nucleus of operative fact;

(b)
the latter is the means of enforcement of the former;

(c)
the latter arises as a direct breach of the former;

(d)
they depend upon the same statutory scheme.

B.
SENTENCE

17.
The Commission's submissions are limited to the issue of contempt and the severity
of the sentence imposed by Mr Justice Beach and referred to in the Notice of Appeal
dated 4 March 1996 at points 7 and 16.

18.
The sentence of ten weeks for contempt of the orders of Mr Justice Beach is excessive,
taking into account the nature of the offence and the context in which the conduct
was sought to be restrained.

19.
The Court is encouraged to take into account relevant international human rights
instruments when exercising its discretion in respect to the imposition of a penalty
and the nature of the penalty.

20.
International instruments are relevant to Australian domestic law, inter alia
-in, providing a legitimate and important influence upon the common law: Mabo
& Ors. v. The State of Queensland (No.2) (1992) 175 CLR 1 per Brennan
J at p. 42. In dealings with Commonwealth agencies there is a legitimate expectation
that the Commonwealth will act in conformity with international instruments: Minister
for State for Immigration & Ethnic Affairs v. Ah Hin Teoh (1995) 183 CLR
per Mason CJ and Deane J at p. 287-288, Gaudron J at p. 304.

21.
In the exercise of judicial discretion, Courts have indicated that it is appropriate
to take into account international human rights instruments - Derbyshire County
Council v. Times Newspapers [1992] QB 770, p. 812; [1992] 3 All ER 65 at p.
76 per Balcombe LJ and affirmed without reference to the point in [1993] AC 534,
[1993] 1 All ER 1011.

22.
The relevant international human rights instrument is the International Covenant
on Civil and Political Rights(ICCPR) -article 19. The ICCPR is contained in
Schedule 2 to the Human Rights and Equal Opportunity Commission Act (Cth)
1986.

23. Article
19(2) recognises an individual's right of freedom of expression:

"Everyone
shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through
any other media of his choice."

24.
The ICCPR is not directly enforceable in Australian domestic law. However, the
High Court has recognised the importance of freedom of expression for the discussion
of political matters or affairs, in doing so recognising that there is an implied
guarantee of freedom of expression in the Constitution: Nationwide News v.
Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v. The Commonwealth
(1992) 177 CLR 106; Theophanous v. Herald & Weekly Times (1994)182
CLR 104, Cunliffe v. The Commonwealth (1994) 182 CLR 272.

25.
Recently, it has been acknowledged that freedom of expression is protected in
common law in a manner which accords with article 10 of the European Convention
on Human Rights: Attorney-General v. Guardian Newspapers Pty Ltd (No.2)
[1990] AC 109, at p. 178, [1988] 3 All ER 545, at pp. 596-597; Derbyshire County
Council v. Times Newspapers [1993] 1 All ER 1011.

26.
The right of freedom of expression is not absolute: Nationwide News v. Wills
(1992) 177 CLR 1, at p. 50-53 per Brennan J, Deane and Toohey JJ at p. 79 and
Gaudron at p. 94-95; Australian Capital Television Pty Ltd v. The Commonwealth
(1992) 177 CLR 106 per Mason CJ at p. 142-144; Theophanous v. Herald &
Weekly Times (1994) 182 CLR 104; Cunliffe v. The Commonwealth (1994)
182 CLR 272. See also Shelton v. Tucker 364 US 479, 488 (1960) and Bradenburg
v. Ohio 249 US 444 (1969).

27.
However, any restriction or limitation on the individual's right must be reasonable
and proportionate to the aim it pursues. Further, the reasons which are said to
justify the restriction must be relevant and sufficient: Commonwealth v. John
Fairfax and Sons Ltd (1980) 147 CLR 39 at p. 52 per Mason J, see also Gouriet
v. Union of Post Office Workers [1978] AC 435 and Home Office v. Harman
[1983] AC 280,312 or [1982] 1 All ER 532.

28.
The reasonableness and proportionality of the period of imprisonment imposed by
Beach J is a measure which curtails an individual's rights under article 19(2)
and must be measured against article 19(3) of the ICCPR:

"The
exercise of the rights provided for in paragraph 2 of this article carries with
it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:

(a)
For respect of the rights or reputations of others;

(b)
For the protection of national security or of public order (ordre public), or
of public health or morals."

29. There are three matters to be considered when determining whether the restriction
imposed is reasonable and proportionate, namely:

(1)
The restriction must be provided by law;

(2)
Any restriction must service a legitimate purpose namely to protect national security
or of public order (ordre public), or of public health or morals;

(3)
The restriction must be necessary.

30.
The restriction imposed by the Electoral Act on the freedom to impart information
in respect of voting is that in section 240, section 329A and section 383 of the
Commonwealth Electoral Act 1918 (Cth).

31.
At best, the purpose of the restriction is to maintain public order.

32.
The Commission submits that any such restriction on the exercise of fundamental
human rights must be interpreted narrowly: Handyside v. United Kingdom
1 EHRR 737; Sunday Times v. United Kingdom 2 EHRR 245; Lingens v. Austria
(1986) EHRR 103; Home Office v. Harman [1983] AC 280, 312 or [1982]
1 All ER 532 and in a manner which is consistent with respect for other fundamental
human rights -the right to participate in public affairs (article 25 of the ICCPR):
Hector v. Attorney-General of Antigua and Barbuda [1990] 2 AC 312, at p.
315; and the right to liberty, Foster v. R (1993) 113 ALR 1, Chu Kheng
Lim & Ors v. The Minister for Immigration, Local Government and Ethnic Affairs
& Anor (1992) 176 CLR 1.

33.
The imprisonment of the Appellant until 30 April 1996 for contempt of an order
which expired on 2 March 1996 is manifestly excessive. The imprisonment was not
a necessary measure to achieve the purpose of restraining the Appellant from encouraging
Australian citizens to vote other than in accordance with section 240 of the Electoral
Act. Given that the injunction has expired, it is submitted that it is not
reasonable or proportionate for the contempt order to persist in excess of the
period of the injunction.

34.
To be 'necessary', the restriction must be more than merely reasonable or desirable.
The Government must demonstrate a pressing social need to restrain an individual's
right freely to express his views or to impart information. To this end, the subject
matter of the restriction must involve a matter of public concern and the restrictions
place on the dissemination of information if the Government demonstrates that
its dissemination would have adverse consequences which are legitimately feared
by the State. The extent of permissible restrictions on the exercise of freedom
of expression have been considered by the European Court of Human Rights in interpreting
article 10 of the European Convention on Human Rights which is the equivalent
provision to article 19: Handyside v. United Kingdom 1 EHRR 737; Sunday
Times v. United Kingdom 2 EHRR 245; Observer and the Guardian v. United
Kingdom (1991) 14 EHRR 153; Open Door Counselling and Dublin Well Woman
v. Ireland (1993) 15 EHRR 244 and Castells v. Spain (1992) 14 EHRR
445.

35. The
breadth of the restriction is also relevant. The restriction must be convincingly
established Observer and the Guardian v. United Kingdom (1991) 14 EHRR
153, at para. 59(c), see also Bond v. Floyd 394 US 705 (1969).

36.
It is submitted that the continued detention of the Appellant is in all the circumstances
manifestly excessive. It is nether reasonable, necessary nor proportionate to
the mischief it seeks to prevent. It is submitted that there is no pressing social
need which should require the Appellant to be detained after 6:00 pm on 2 March
1996.

37. The
mischief which the injunction sought to prevent ceased to be a threat after the
election was held. The mischief could adequately be prevented by imprisonment
to that time (6:00 pm on 2 March 1996) and no longer.

6
March 1996

G.T.PAGONE

Last
updated 19 May 2003.