TASMANIAN CASES IN THE HIGH COURT OF AUSTRALIA
(Address to a meeting of the Royal Society of Tasmania by the Hon Justice Alan Blow OAM, Chief Justice of Tasmania, on 1 December 2015)
As most of you probably know, the High Court of Australia was brought into existence by the Australian Constitution at the time of federation in 1901. It serves the role of a national constitutional court, dealing with cases about the Australian Constitution. Another important role is for it deal with appeals from other Australian courts as the highest court in the country – the ultimate court of appeal. In the 19th century, each of the six Australian colonies had a Supreme Court, and there were rights of appeal from single-judge decisions to a Full Court, and from decisions of each Supreme Court to the Privy Council in London, which was effectively the ultimate court of appeal of the British Empire. The Constitution did not abolish rights of appeal to the Privy Council, which continued until the 1970s, but in effect inserted the High Court in a new position above the State courts, as they had become, and below the Privy Council. It was against that background that the then Chief Justice of South Australia, Sir Samuel Way, commented that the High Court was “no more needed than a fifth wheel to a coach”.
The High Court commenced sitting in 1903. A number of its early cases were constitutional cases, dealing with disputes about the implementation of the new Australian Constitution. Its first case from Tasmania was one of those cases: D’Emden v Pedder (1904) 1 CLR 91. Mr D’Emden was the Deputy Postmaster-General of the State of Tasmania, and therefore a Commonwealth public servant. Tasmania had legislation that required stamp duty to be paid on receipts signed by employees when they received payments of salary. Mr D’Emden refused to pay stamp duty on his salary for the month of March 1903. The amount in question was 2d. He was prosecuted in the Court of Petty Sessions in Hobart, convicted, and fined 1s plus costs. An appeal to the Full Court of the Supreme Court of Tasmania was unsuccessful. Clark J, who had written the first draft of the Constitution, dissented. On appeal to the High Court, it was argued that the stamp duty was a tax on the operations, instrumentalities and agencies of the Commonwealth, and therefore impliedly forbidden by the Constitution. It was also argued that the Tasmanian stamp duty legislation was inconsistent with the federal legislation relating to salaries, and a unconstitutional attempt for a State to legislate in relation to a Commonwealth department. The appeal succeeded, but not on a constitutional point. The High Court held that the Tasmanian legislation, which had been passed after federation in 1901, should be interpreted as not applying to receipts given by federal officers for their salaries. That was an important case. Obviously there was more than 2d at stake.
The provision in the Constitution that has generated the greatest number of cases about its meaning and interpretation is probably s 92. Somewhat simplistically, that section provides that, “… trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free …”.
In 1932 Victoria banned the importation of potatoes from Tasmania. This was done by means of a proclamation under an Act of the Victorian Parliament. That Act authorised the prohibition of the importation into Victoria of any vegetable which was, in the opinion of the Governor in Council, likely to introduce any disease into Victoria. Tasmania applied to the High Court for a declaration that the proclamation was invalid because of s 92. Tasmania was successful. Five of the six judges held that the proclamation was invalid because of s 92. The other judge, Starke J, dissented on the basis that the court had no jurisdiction because the Tasmanian Government did not itself export potatoes.
Over the following decades, there were many tedious s 92 cases in relation to the validity of Tasmanian transport legislation, particularly in relation to the regulation of goods vehicles and the imposition of charges for permits.
Cole v Whitfield (1988) 165 CLR 260
On 5 January 1983 an inspector from the Tasmanian Fisheries Development Authority inspected the Boomer Park Crayfish Farm at Dunalley and found a quantity of cooked crayfish that were under the prescribed minimum size for Tasmanian crayfish. Those undersize crayfish had been caught in South Australia, and brought into Tasmania by the company that ran the crayfish farm. In Tasmania, the minimum permitted size was 11cm for male crayfish and 10.5cm for female crayfish. But in South Australia, which unsurprisingly had modern ideas about gender equality, the minimum size for both male and female crayfish was 98.55mm. The crayfish found by the inspector were big enough for South Australia, but not big enough for Tasmania. The company that operated the crayfish farm was prosecuted, together with its operations manager. A magistrate dismissed the charge, relying on s 92 of the Constitution. There was an appeal to the Supreme Court of Tasmania. That appeal was removed into the High Court. It seems that the judges of the High Court had been waiting for an opportunity to rewrite the law in relation to s 92, and this case provided it. The fisheries officer who had signed the complaint in the Hobart Court of Petty Sessions was represented by three counsel, including the Solicitor-General for Tasmania and an eminent Sydney QC. The Solicitors-General for the Commonwealth and each of the five mainland States all made submissions about the meaning of s 92, each arguing that the charge should not have been dismissed. It was an interesting experience for Peter Cranswick QC and Steven Chopping, who represented the Tasmania company and its operations manager. In a joint judgment, the seven judges of the High Court held that the Tasmania regulations were compatible with s 92. More significantly, the Court abandoned previous approaches to s 92 and adopted a new one. State legislation will now be regarded as incompatible with s 92 only if it is discriminatory against interstate trade and commerce in a protectionist sense: Cole v Whitfield (above) at 407.
Commonwealth v Tasmania (1983) 158 CLR 1
Perhaps the most significant constitutional case in the High Court concerning Tasmania has been the Tasmanian Dam Case. As we probably all remember, the High Court held in 1983 that the Commonwealth Government had the power to stop the Tasmanian Government from building the Gordon below Franklin Dam. That decision was arrived at by a four-three majority (Mason, Murphy, Brennan and Deane JJ; Gibbs CJ, Wilson and Dawson JJ dissenting). The majority held that the Commonwealth Government had the power to stop the dam because of its power to make laws with respect to “external affairs”: Constitution: s 51(xxix).
When politicians from the Parliaments of the six colonies drew up the Constitution in the 19th century, they strove to confer only limited powers on the new Commonwealth Parliament. As a result, s 51 of the Constitution lists a number of subjects in relation to which the Commonwealth Parliament may make laws. If a subject is not on that list, then only a State Parliament may legislate in relation to it. Electricity generation is not on the list, perhaps unsurprisingly, nor is the damming of rivers.
Australia had become a State Party to the Convention for the Protection of World Cultural and National Heritage. The convention declared that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage situated on the territory of a State Party belonged primarily to that State. It provided that each State Party should endeavour, insofar as possible and as appropriate for each country, to take appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of that heritage.
After the election of the Hawke Government in early 1983, the Commonwealth Parliament passed a statute called the World Heritage Properties Conservation Act 1983. Regulations were then made under that Act declaring all the national parks in south western Tasmania, together with the area to be affected by the dam, to form part of our natural heritage, and certain affected areas to form part of our cultural heritage. Commonwealth regulations were made in March 1983 prohibiting, in the area to which they applied, the construction of a dam or associated works, and the doing of any act for the purpose of such construction. The majority judges held that, because of Australia’s obligations under the World Heritage Convention, those regulations were valid. That is to say, because the Commonwealth had the power to make laws in relation to external affairs, and because of the Convention obligations, the Commonwealth had the power to make laws stopping the dam.
The implications of this case extended far beyond the stopping of the dam. It represented a major shift of power to the Commonwealth Government at the expense of the States. One of the dissenting judges, Sir Daryl Dawson, in a speech to the Tasmanian Bar Association later that year, referred to “the case of Commonwealth v Tasmania, which some people think had something to do with the construction of a dam”.
Australia is a signatory to the International Covenant on Civil and Political Rights. Article 17 thereof contains the following provision:
“1 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence …”.
Legislation prohibiting any particular type of sexual activity between consenting adults is regarded by international lawyers as amounting to “arbitrary interference with privacy” for the purposes of that provision. In 1994, the Commonwealth Parliament, no doubt mindful of the scope of its external affairs power, enacted a provision – s 4(1) of the Human Rights (Sexual Conduct) Act 1994 – which provided as follows:
“Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.”
At the time, provisions in Tasmania’s Criminal Code prohibited sexual intercourse between males, and acts of gross indecency committed by one male with another male. Two Tasmanian homosexual men sued the State in the High Court, seeking declarations that the provisions in our Criminal Code relating to male homosexual activity were inconsistent with the provision in the Commonwealth legislation that was based on the ICCPR. Section 109 of the Constitution says that when a State law is inconsistent with a Commonwealth law, the Commonwealth law prevails. Of course that only applies if the Commonwealth law is valid.
The Tasmanian Government responded with an application for the proceedings to be dismissed, on the basis that the High Court had no jurisdiction because the applicants were only seeking an answer to an abstract question. The High Court rejected that application, and held that it did have jurisdiction: Croome v Tasmania (1997) 191 CLR 119.
Within three months, the Tasmanian Parliament had amended the Criminal Code by repealing the provisions that prohibited consensual homosexual acts between adults: Criminal Code Amendment Act 1997. The High Court proceedings against the State did not need to proceed to a hearing. There had been a victory for gay law reformers. That victory would not have been achieved at that time, or in that way, but for the decision about the external affairs power of the Commonwealth that was made in the Tasmanian Dam Case.
Non Constitutional Cases
Constitutional cases, whilst very important, form only a small part of the work of the High Court. Most of the High Court’s work in relation to Tasmania involves appeals from either the Full Court of the Supreme Court of Tasmania or the Court of Criminal Appeal.
Many of the High Court’s earlier decisions in appeals from Tasmania are of little long-term significance, and relate to the facts of particular cases. There have been plenty of cases about divorces, wills, death duties, Tasmanian legislation that has since been repealed, and so forth. As Australia’s population has grown, and become more litigious, the High Court has become much busier, and it will now often refuse to grant special leave to appeal in cases that do not raise points of public importance.
Some of the earlier Tasmanian cases provide fascinating insights into times past. In Ashton & Parsons Ltd v Gould (1909) 7 CLR 598, the Court was concerned with a product called Gould’s Phosferine that was commonly sold in chemists’ shops in Hobart. The Court ordered Phosferine to be removed from the register of trademarks, holding that it had been improperly registered. Davies Bros Limited v Bond (1912) 13 CLR 518 concerned a claim for damages for libel by a member of the Legislative Council in relation to a newspaper article that said he was in the habit of underpaying his men and overworking them. R v Sing (1911) 13 CLR 32 and Bain v Ah Kee (1914) 17 CLR 433 concerned people who had been charged with being prohibited immigrants. Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199 concerned an argument as to whether a man had been sacked because he was a member of a union.
However there have been a number of cases from Tasmania, particularly in more recent decades, in which important questions of principle have been resolved.
Employers are normally vicariously liable for torts committed by their employees, eg negligence, trespass, assault etc. In Enever v The King (1906) 3 CLR 969, which concerned a claim for damage for wrongful arrest by a Tasmanian police officer, the High Court held that that principle does not apply to police officers. The holder of the office of constable is an independent peace officer, not under the direction or control of the government at all. In later years that case created difficulties for police officers when they wanted to claim workers compensation. Police officers tend to be regarded as employees for the purposes of workers compensation legislation, but not for the purposes of the common law.
Bringinshaw v Briginshaw (1938) 60 CLR 336 was an appeal from the Supreme Court of Victoria, but it concerned the question of whether two people had committed adultery at a hotel in Devonport. Mr Bringinshaw unsuccessfully petitioned for divorce on the ground of his wife’s adultery. The trial judge neither accepted nor rejected the evidence of adultery, but dismissed the petition on the basis that the evidence was not strong enough to satisfy him that adultery had been committed. The law has developed two standards of proof. In criminal cases, there has to be proof beyond reasonable doubt before an accused person may be found guilty. In civil cases, the test is whether the judge or jury is reasonably satisfied on the balance of probabilities as to an alleged fact. The judgment of Dixon J in that case established that the strength of the evidence needed to establish a state of reasonable satisfaction depends on the seriousness of the case. At 362 his Honour said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”
That passage is routinely relied on by counsel in civil cases involving serious allegations such as fraud or professional misconduct. Although the question of whether Mrs Briginshaw committed adultery in 1937 was never resolved, that case is one of the most significant cases with a Tasmanian connection, and one of the most often cited cases in this country.
Launceston Corporation v Hydro Electric Commission (1959) 100 CLR 654 is a leading case about the status of statutory corporations. The HEC argued that it was not liable to pay rates because it was entitled to Crown immunity. The High Court held that, as a statutory corporation, it was independent of the Crown and not entitled to the immunity that it claimed.
Heatley v Tasmania Racing and Gaming Commission (1977) 137 CLR 487 is a leading case about the duty of statutory authorities to comply with the rules of “natural justice” on procedural fairness. It relates to incident about a colourful Hobart racing identity. The High Court that he had to be afforded an opportunity to make submissions before the Commission could ban him from their racecourses.
During the 1980s the High Court dealt with a number of criminal cases concerning disputed confessions and the powers of police as to detention and interrogation. Two of those cases came from Tasmania. Williams v The Queen (1986) 161 CLR 278 concerned an allegation that Mr Williams had confessed to a number of offences after being arrested and then questioned. The High Court held that Tasmania’s legislation required an arrested person to be brought before a justice of the peace as soon as practicable after the arrest; that the police had no power to delay bringing an arrested person before a justice so that the person could be questioned; that the questioning of Williams had occurred during a time when he was unlawfully detained; and that the evidence of his alleged confessions, having been unlawfully obtained, could not be relied upon.
Carr v The Queen (1988) 165 CLR 314 concerned an unsigned record of interview. In those days the police had a practice of recording interviews with suspects by typing a record of the interview as it proceeded. One of the interviewing officers would type a question, read it out, listen to the answer, and then type the answer. At the end of each interview, the interviewee was invited to read the typed record, to say whether it was correct, and to sign it as an indication that it was a true and correct record. It was very common for police officers to produce unsigned records of interview, and for accused persons to say that no such interview ever took place. Mr Carr had been tried on a charge with of robbery with violence. The Crown had relied on an unsigned record of interview. Without the unsigned record of interview, the evidence would not have been strong enough to prove guilt beyond reasonable doubt. He was found guilty. He appealed to the Court of Criminal Appeal, arguing that there was a miscarriage of justice because of reliance on the unsigned record of interview. He failed at that level, but an appeal to the High Court succeeded, by a three-two majority. The majority took the view that, in the circumstances, the jury should have been warned that, when police officers are very experienced at giving evidence, it can be difficult to tell whether they are being truthful or not. Because no such warning had been given, the majority decided to order a new trial.
Those cases, and others like them, led to reforms of the law relating to police questioning in this State. The Criminal Law (Detention and Interrogation) Act 1995 now prevents evidence of official questioning from being used unless it is audio-visually recorded, subject to some very limited exceptions. It also permits police officers to question people who have been arrested, but only after offering opportunities to contact a friend, relative or lawyer. Unsigned typed records of interview simply disappeared from the legal landscape 20 years ago as a result of this legislation.
Two Tasmanian cases about injunctions have gone to the High Court in recent years. The first was Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. In that case, people from an animal welfare organisation had entered a possum abattoir as trespassers and installed hidden video cameras. They supplied footage to the ABC. The abattoir proprietor applied for an urgent injunction to prohibit the airing of the footage. The High Court considered all sorts of points relating to implied constitutional freedoms, the development of the law in relation to privacy, and the availability of injunctions. The ABC was successful in the High Court. One important factor was that the abattoir proprietor had no legal right to sue the ABC. When a court case is pending, the court has the power to grant a temporary injunction – called an “interlocutory injunction” – but the granting of an interlocutory injunction is inappropriate when there is no basis for claiming damages or any other remedy. Another important point in the case was that animal welfare was a legitimate matter of governmental and political concern.
The second of the two cases was Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. Mr O’Neill is serving a life sentence for murdering a boy in the 1970s. The ABC was proposing to screen a film about him that suggested he had committed a number of other murders, including the murders of the Beaumont children in Adelaide in the 1960s. He sued the ABC for damages for defamation, and obtained an interlocutory injunction to restrain the ABC from screening the program while his case was pending. The ABC appealed unsuccessfully to our Full Court, but was successful in the High Court, by four-two majority. The majority took the view that free speech was an important consideration that had not been given appropriate weight, and that this was the sort of case where the courts should not restrain the publication of allegedly defamatory material because there is a right to damages, and that is an adequate remedy.
I believe the most recent Tasmanian case to go to the High Court is one concerning the responsible service of alcohol: CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390. It concerned a fatal motorcycle accident. The motorcyclist had too much to drink at a hotel in Triabunna. He had got the publican to put the motorcycle in his storeroom and its keys in his cash register, but after a couple more drinks he demanded the keys and the motorcycle, and set out to ride home. He collided with the side of the bridge at Orford and was killed. The High Court held that in those circumstances the publican did not have a duty to prevent his customer from exposing himself to a risk of harm. It followed an earlier decision to that effect from the New South Wales Court of Appeal. It declined to follow the Supreme Court of Canada, which had held that the operators of bars had a duty to take care for the safety of departing patrons.
Ever since 1904, the High Court has been coming to Hobart to hear Tasmanian cases. Its last visit was in 2006, but it will be back in the new year to hear two Tasmanian appeals. One concerns a dispute as to whether fish farms in Macquarie Harbour are liable for council rates. The other concerns the scope of the duties that a solicitor owes when he or she makes a will for a client – not the solicitor’s duty to the client, but the solicitor’s duty to the intended beneficiary, in a situation where a disinherited family member took the executor to court and ended up with about a third of the estate, in circumstances where that outcome could have been avoided by means of a manoeuvre that the solicitor had not suggested.
Having regard to the size of its population, Tasmania seems to have generated more than its share of important High Court cases over the years, and that phenomenon seems likely to continue.
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