McCloy v New South Wales [2015] HCA 34 – implied freedom of political communication – a case summary for law students

There are a number of case summaries that have been written on the High Court’s most recent implied freedom of political communication case, McCloy v New South Wales [2015] HCA 34 (“McCloy”). This case summary is different in that it is designed for law students and junior lawyers and the content is intended to assist in assignments and exams.

Background

Jeff McCloy, the former Lord Mayor of Newcastle and current property developer challenged the validity of several parts of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (EFED Act) on the basis that the laws impermissibly burden the implied freedom of communication of political and government matters. As you are probably aware, McCloy was before ICAC earlier in 2015 regarding political donations made far in excess of the cap. The following parts of the EFED Act were challenged:

1.       Division 2A of Part 6 which creates a general cap of $5,000 (increased annually in line with the equation in Schedule 1)) for political donations to a registered party or candidate for State elections;

2.       Division 4A of Part 6 which prohibits political donations being made by property developers, tobacco industry businesses and liquor and gambling industry businesses ; and

3.       Section 96E which prohibits certain indirect campaign contributions including provision of office accommodation, vehicles, computers and other equipment for no or inadequate consideration for use substantially for election campaign purposes.

New South Wales was joined as defendant by the Commonwealth, Western Australia, Queensland, South Australia and Victoria.

The Lange test – a reminder

A two-step test for determining whether a law is invalid due to the constitutional freedom of political communication was developed in Lange v ABC (1997) 189 CLR 520 (“Lange”)):

Step 1 – Does the law effectively burden political communication in its legal or practical operation?

Step 2 – Is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of representative and responsible government established by the Constitution?

How did McCloy build on the Lange test?

At issue in McCloy was the nature of Step 2 of the Lange test. The majority adopted a proportionality approach which neither Gageler J, Gordon J or Nettle J agreed with.

Lange remains the authority for the test for the constitutional implied freedom. McCloy adds to Lange by clarifying the steps to take when deciding whether the measure is “reasonably appropriate and adapted” to achieve a legitimate end ([70]). In McCloy, the majority refers to this as the “proportionality test” and specifies three elements that must be established before the proportionality test is satisfied – suitable, necessary and adequate in its balance.

What was the outcome in McCloy?

The outcome (6:1 - French CJ, Kiefel, Bell and Keane JJ, Gageler J, and Gordon J : Nettle J) was that none of the EFED Act laws challenged exceeded the implied freedom of political communication derived from ss.7, 24, 64 and 128 of the Constitution. However, while the majority in their joint judgment (French CJ, Kiefel J, Bell J and Keane J) came to this conclusion through the proportionality approach, Gageler J applied Lange in its classic sense and rejected the majority’s proportionality approach, while Gordon J rejected the “balancing” aspect of the majority’s proportionality approach. Nettle J found the laws prohibiting donations from building developers were invalid, as they discriminated particularly against this group, and the justification was not sufficient to warrant this discrimination. Nettle J found it was unnecessary to decide on the proportionality point. The outcome on the proportionality point was 4:3 (French CJ, Kiefel, Bell and Keane JJ : Gageler J, Gordon J and Nettle J).

What you need to know – the three question test from the joint judgment

The joint judgment commences at paragraph 2 by reiterating that the Constitutional implied freedom of political communication is not an absolute freedom, but a qualified freedom that is implied in order to ensure the people of the Commonwealth may “exercise a free and informed choice as electors” (Lange). Relying on Lange as modified in Coleman v Power (2004) 220 CLR 1, and adding a proportionality analysis to the second limb of Lange, the High Court succinctly set out the three questions to answer when determining if a law exceeds the implied freedom of political communication on governmental and political matters. I have converted this information into a flow chart:

*"Compatability test"

The compatability test requires firstly that the following be identified:

1.       The purpose of the law; and

2.       The means adopted to carry out the purpose of the law.

Both (1) and (2) must be “compatible with the constitutionally prescribed system in the sense that they do not adversely upon the functioning of the system of representative government”. The compatability test is a rule derived from the Constitution itself ([68]).

^#“Proportionality test”

The High Court majority added a proportionality test to the second limb of Lange. All three elements must be satisfied before proportionality can be said to exist:

1.       Suitable – “having a rational connection to the purpose of the provision”.

If the measure cannot contribute to the realisation of the statute’s legitimate purpose, it cannot be said to be reasonable ([80]). The majority indicate this is consistent with both Lange and Unions NSW v New South Wales (2013) 252 CLR 530 (“Unions NSW”).

2.       Necessary – “there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on this freedom”.

This inquiry is to whether there is other, equally as effective means of achieving the legislative object which have a less restrictive effect on the freedom. These alternative means must be obvious and compelling. The majority indicate this is consistent with the approach taken in Lange and Unions NSW ([81]).

3.       Adequate in its balance – requires the judge to make a value judgment “describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom”.

The High Court said analysing the balance between the purpose and the extent of the restriction logically inheres in the Lange test, although this is the first time the High Court has “fleshed out” that this requirement is a necessary part of the second limb of the Lange test ([86]). In the balancing aspect of the proportionality test the positive effect of realising the law’s proper purpose must be balanced with the negative effect of limiting the constitutional freedom. The greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate or balanced ([87]).

Applying the test to the provisions of the EFED Act – the joint judgment

Question 1 – does the law effectively burden the freedom?

In Unions NSW a case concerning the operation of Part 6 of the EFED Act, the High Court identified the burden as a restriction on the source of the funds available to political parties to meet the costs of political communication, as even with the public funding provided for in Part 5, a party or candidate will have to fund any shortfall. In McCloy, the majority identified this as the relevant burden. McCloy’s lawyers made an additional submission that the EFED Act prevents donors from making substantial political donations in order to build and assert political power. The High Court rejected this submission, as the ability to make substantial donations is not part of the implied freedom. Guaranteeing the ability of a few to make large political donations goes against the underlying principle of ensuring individuals have an equal share in political power ([28]).

Once the Plaintiff has established the law burdens the freedom, the burden then shifts to the Defendant to justify that burden by answering “Question 2” and “Question 3”.

Question 2 – is the compatibility test satisfied? Is the purpose and means compatible with the system of representative government provided for in the Constitution?

Div 2A Part 6

The purpose of Div 2A was identified as preventing and reducing the amount of corruption and undue influence in the government of the State, as well as to overcome perceptions of corruption and undue influence. The means to achieving this purpose in Div2A is to set a general cap on political donations. Capping political donations is consistent with representative government, as it helps to ensure equality of opportunity to participate in the political process and that one voice does not drown out others ([43] to [47]).

Section 96E

As s.96E is effectively an anti-avoidance provision which attempts to prevent donors getting around the general cap in on political donations in Div 2A, the validity of s.96E depends on that of Div 2A. As Div 2A passes the compatability test, so does s.96E.

Div 4A Part 6

Div4A prohibits property developers from making political donations. McCloy submitted that there is nothing special about property developers that make them more likely to make corrupt payments than other entities ([48]). The High Court accepted New South Wales submission that property developers can be distinguished from other participants due to their dependence on decisions of government in matters such as land zoning and development approvals. The purpose of Div 4A in reducing the risk of undue or corrupt influence in planning decisions where the risk is greater than in other areas of official decision making is legitimate, as are the means adopted to achieve the purpose ([53]).

Question 3 – is the proportionality test satisfied? Is the law suitable, necessary and adapted?

The majority found the proportionality test was satisfied for all the provisions of the EFED Act in dispute. The effect of the laws on the freedom is indirect. The negative effect of reducing funds available to election campaigns and restricting communication by political parties and candidates to the public needs to be balanced with the public interest in removing the risk and perception of corruption. The majority concluded the restriction on the freedom is more than balanced by the benefits sought to be achieved in removing the risk and perception of corruption ([93]).

Gageler J’s judgment

Gageler J dissented from the majority in his characterisation of the second part of the Lange test, rejecting the need for a proportionality test and highlighting two main problems with the majority’s proportionality approach:

1.       One size does not fit all, and the standardised criteria in the proportionality approach will not fit all cases ([142]); and

2.       Requiring a law to be “adequate in its balance” is not sufficiently focused on the reasons for the Constitutional freedom. Equating “strict proportionality with “specific balancing” has always been a controversial approach ([146]).

Gageler J’s formulation of the second stage of the Lange test is that there must be an explanation and a justification. First, the imposition of the restriction on political communication must be explained by the law’s object. Second, the restriction on political communication that is imposed by the law must be justified by the law’s reasonable pursuit of the identified legitimate end.

Nettle J’s judgment

Nettle J neither agreed nor disagreed with the majority’s strict proportionality analysis, as “for present purposes...it is unnecessary to delve into strict proportionality” ([222]). While Nettle J held the donation caps and restrictions on indirect contributions passed the two step Lange test were valid, Nettle J departed from the majority and held the laws prohibiting donations from property developers to be invalid. This was because Div 4A of Part 6 discriminates against a particular segment of the community, requiring strong justification, which was not present ([257]).

Gordon J’s judgment

Gordon J agreed with the majority on the outcome, however decided it was not necessary to limit the way in which a court can be satisfied of the second limb of Lange. Gordon J held that a court may consider whether there are more compelling, reasonably practicable ways of achieving the same end, but this will not always be necessary and there are many ways in which a court could approach the second limb of Lange, and the second limb should not require a set sequence of steps. Gordon Jdirectly rejected that “balancing” is a part of the second limb of Lange “as there are no criteria or rules by which a “balance” can be struck between means and ends” ([336]).

  

SYDNEY v MELBOURNE AS A JUNIOR LAWYER - Which city should you choose?

As a junior lawyer, it is likely you will end up working in one of Australia’s two largest cities, as this is where the bulk of Australia’s legal jobs can be found. Having worked in both Sydney and Melbourne, this blog post shares some of the major along with the more trivial differences between the two cities.

Getting to work

Melbourne wins this category by a long way. Most people in Melbourne get to work via train or tram. The train and tram networks are comprehensive. I don’t know anyone who catches the bus to work, though there are buses around if you somehow needed to catch one. Some people in Melbourne even drive to work (unheard of in Sydney unless you are one of the leading Partners at your law firm), as although there is traffic, it is nothing on the scale of Sydney peak-hour. If you walk or take public transport to work in Melbourne you are much more likely to arrive at work alive. There are plenty of designated and separated bike lanes in Melbourne and car drivers are much more bike and pedestrian aware. The pollution and smog in Melbourne is much lower than Sydney. One thing that can be annoying in Melbourne is that people walk very slowly and often do not stick to their side (the left hand side) of the footpath. In Sydney most locals know to stay to the left and it is only tourists who are unaware (or choose to ignore) the system.

Contrast this to my experience getting to work in Sydney where trains are packed and often unairconditioned so that you need to bring a change of clothes for when you eventually arrive at work. That is if you are lucky enough to live on a train line. Most Sydney-siders have to slum it on a bus to get to work. Sydney bus drivers are notorious for their sudden stop/start driving. Cycle to work at your own risk, as many Sydney drivers have an “out to get cyclists” attitude and there are very few safe bike lanes available. Walking is not at all relaxing due to having to push through so many people and due to inhaling so much peak hour pollution/smog. Getting to work is only superior in Sydney if you catch a ferry. You can’t beat a relaxing ferry ride to start your day.

FYI while the cost of public transport in Sydney and Melbourne is similar, if you commute to work every day, it is much cheaper in Sydney, as under the Opal Card loyalty system, once you have travelled to and from work Monday to Thursday, the rest of the week is free. There is no such loyalty system on the Melbourne Myki.

At work

Hours of work do not vary between Melbourne and Sydney. The legal profession has a culture of long hours for law graduates and junior lawyers across Australia. You need to look at firm culture and industry you intend to work in when considering how many hours you are willing to work.

My experience has been that colleagues and lawyers I have met in Melbourne tend to be more relaxed and friendly than in Sydney. Being a relatively unrelaxed person, I have had to really focus on being less of a stress-head in Melbourne. Strangers even talk to each other in the lift, which can take a bit of getting used to, as in Sydney protocol is to politely avert eye contact and read the advertising on the little screen above the lift numbers until you exit. I would also say manners are highly valued in Melbourne. If someone accidentally touches your arm on a crowded train they tend to apologise profusely. Melbourne etiquette reminds me of London. 

Lawyers in Melbourne tend to dress much more conservatively than in Sydney. In Winter, dress code is literally all black for females. You rarely see men wearing crazy shirt/tie/sock combinations either. Black beanie and black gloves can be worn if necessary on the commute to work. Stockings are also worn with skirts and dresses. I hate stockings, so this took a bit of getting used to, as in Sydney, most law firms see stockings as optional. For Melbourne Winter go for the thermal variety. In Melbourne I have noticed a lot more female lawyers wear flat shoes rather than heels, including quite masculine styles such as brogues, loafers and oxfords. 

Getting to court

If you are a law graduate, chances are you will need to attend court urgently to file a court document or attend a return of subpoena matter at some point. In Sydney, if your client cannot be billed for a taxi, you would have to walk to court. In Melbourne, if that happens to you, you can take advantage of the “Free Tram Zone” (such a saviour). You can ride a tram for free within the CBD. There is no comparable system in Sydney, though if you have time up your sleeve you could slum it with the tourists on the free city loop bus, which is meant to come every 15 minutes, but rarely does.

The weekend

You cannot beat a picturesque Sydney weekend beach hopping along the inner harbour and northern beaches. Sydney is a beautiful city, but it is this same geography that makes getting around hell during the week. Traffic jams not only exist during the week but also on the weekend, especially during Saturday morning school sport. Driving up the coast on a Friday night for a relaxing weekend can start with hours stuck in traffic, especially for long weekends. Weekends in Melbourne are fantastic. Melbourne is close to several national parks, as well as the Great Ocean Road, Philip Island, French Island and Tasmania. Melbourne is much more centralised than Sydney, so on the weekends, the CBD is always pumping, even in cold weather.

Lunchtime

Most of my colleagues buy their lunch because although the cost of lunch in Melbourne and Sydney is similar, the quality of the food in Melbourne is astronomically better. You could pay $15 for a soggy sandwich with a tiny piece of dry chicken breast in Sydney. In Melbourne, people would refuse to buy that. There are so many good places at both the Paris End and Spencer St end of Melbourne. While there are a few nice parks on the outskirts of the Melbourne CBD, in Sydney I used to go for power walks in the Botanic Gardens and Hyde Park if I had time, which I really miss.

Status of the profession

In Sydney, although there are lawyers in Chatswood, Parramatta and elsewhere, there is a real concentration of lawyers in the Circular Quay and Martin Place precinct. Lawyers rule this area and have a visible presence. Law firms are more spread out in Melbourne, with the retail precinct separating the Spencer St lawyers from the Paris End lawyers. Being a lawyer is not seen as a big deal in Melbourne, where professionals mix with creatives and everyone else seems to have a more interesting career than a lawyer. Friday night drinks at the bar below your building involves an interesting mix of lawyers, architects, artists and window cleaners all winding down in the same bar. This is quite different from Sydney where being a lawyer is seen as prestigious and garners respect because of this.

Getting to the airport

Sydney wins here. Getting to the airport is a quick 15 minutes on the train. You can also catch the bus or get a taxi. The major advantage of the train is that it is not dependent on the traffic. In Melbourne, regardless of which mode of transport you use to get to the airport (Skybus, personal car, taxi) you can be stuck in traffic and miss your flight, especially as the airport is 24km from the city centre. The Taxi from Melbourne airport to the city is around $60 which is a real expense if you can’t claim it from work. The Skybus is $18, which is comparable to the Sydney train access fee

For newbies to Melbourne note there are two airports – Tullamarine and Avalon. If you want to go to Melbourne make sure you booked Tullamarine. Avalon is situated between Geelong and Melbourne but is much closer to Geelong. While the Melbourne airport is not “close” to the CBD, this has the advantage of making the CBD air noise free. You can’t beat the serenity of living in Melbourne. If you live in inner Sydney, particularly the inner west, air traffic is a part of your life and can affect everything from your sleep quality to your hearing.  

Cost of living

The cost of living in Melbourne is meant to be dramatically lower than in Sydney. This is not my experience. Although rent may be slightly cheaper, rent in inner city Melbourne is on par with Sydney. The cost of food is the same. The cost of transport is more expensive in Melbourne. Gym memberships are slightly cheaper in Melbourne. Buying a house in Melbourne is much more affordable than Sydney, but rental costs in the inner city are comparable.  Electricity bills are much higher in Melbourne where heating is a necessity rather than a nice thing to have. Discretionary spending such as fine dining is cheaper in Melbourne than Sydney, so if you are a big spender in Sydney and move to Melbourne, you might save money. However, if you are living on a shoestring in Sydney and not being frivolous, do not expect the cost of living to be significantly cheaper in Melbourne.

Love of food

While there are people in Sydney who love food, Melbourne is next-level. Talking about coffee is a normal past time, and where you ate brunch on the weekend is a favourite topic of conversation on Mondays.

Fitspo

Fitspo does not exist in Melbourne the way it does in Sydney. On the weekend people wear normal clothes when they are not playing sport. There is not a whole crew of Lorna Jane clad women putting on their sports gear to go to a cafe. You can eat a piece of chocolate at work without people raising eye brows. Sure, people own Lululemon and 2XU, but they wear this clothing to and at the gym.

When I go to gym before work, there is barely a soul in sight. There are two reasons for this. First, it is much too cold in winter to go to the gym before work unless you are super dedicated and second, people spend less time in the gym and more time exercising outdoors in Melbourne. Sports like rock climbing, cycling and long distance running are very popular in Melbourne, more so than in Sydney where people seem to be more gym oriented in their exercise choices.

The weather

When people say it is cold in Melbourne in winter, they are not joking. I brushed off the comments before I moved here, and did not really think about it. Big mistake. I found my first winter in Melbourne really, really hard. It is bone-shatteringly cold. Icy Antarctic winds blow through the city as though it is the apocalypse. Once you have invested in a down coat, thick beanie, gloves and thermal stockings, you will be fine. But do this asap after moving, preferably beforehand so you are ready at the airport. After living in Sydney for six years, it was a big shock. While winter is terrible, Melbourne summer is hot, dry and delightful.

Sydney weather is warm all year round. Although people say it is “cold” in winter, I always felt hot wearing a coat, which shows how “cold” it really is. If you are a beach-lover, the weather in Sydney is ideal for you. Despite Melbourne having a reputation for being a rainy place, Sydney actually has a higher rainfall than Melbourne. Melbourne tends to drizzle, while Sydney has huge dumps of rain interspersed with sunny days. 

Job availability

While NSW claims to have stronger economic growth and job creation rates than Victoria, this is not necessarily reflected in job availability for junior lawyers. In recent job hunting in March/April 2015, I found that there were a significantly higher amount of jobs advertised for graduates and junior lawyers in Melbourne than Sydney. This is just my experience. The bottom line is if you are mobile (don’t have kids, caring obligations or a long term partner), apply for jobs that interest you all over Australia.  

If I have missed some key difference between Sydney and Melbourne please comment below.

How much are judges paid and why - the importance of judicial remuneration

Have you ever wondered how much judges are paid? Have you ever wondered why they get paid this amount? In this blog post I examine judicial salaries in major Australian federal and state courts and explain the reasons why judges receive high rates of pay. Note that this blog post focuses on salary only. Judges receive a number of other benefits under salary packaging, so the base rate of salary does not reflect full entitlements.

A.      IMPORTANCE OF JUDICIAL SALARY

Judicial salary, like judicial tenure, is an important component of ensuring judicial independence. I am referring to judicial independence in two contexts:

1.       Judicial independence as a component of the separation of powers

In a pure execution of the separation of powers, the executive, legislative and judicial arms of government are separate in operation and influence. In practise, due to the mixed adoption of American and British government systems at Federation, the executive and legislative arms of government in Australia are not separate. However, the judicial arm of government is separate from the executive arm and the legislative arm, an essential component of the separation of powers in Australia (Attorney-General (Cth) v The Queen (1957) 95 CLR 529, 540-1). In the Boilmakers Case (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 270) the High Court held that the Constitution facilitates this separation by ensuring:

                -judicial power can only be vested in a Chapter III Court; and

                -non-judicial powers cannot be vested in a Chapter III Court.  

Judicial salary assists judges to operate separately from government. While judges are appointed by the executive, judicial salary is set by the relevant independent remuneration tribunal.

2.       Judicial independence as a component of the rule of law

One pillar of the rule of law is that the law is applied equally and fairly so that no-one is above the law. As the judiciary enforce the law, it is essential that they remain independent to enable the law to be applied consistently and fairly. High judicial salaries assist with judicial independence as a judge is less likely to succumb to bribery or corruption when they earn a large amount through their ordinary salary.

While judicial salaries may appear high, many judges take a pay cut when they commence their office as a judge. Many judges are appointed from the Bar where it is not uncommon for a Queens Counsel or Senior Counsel to earn upward of $500,000 annually. On appointment, these lawyers take a $100,000+ pay cut. The judicial salary needs to be high enough to attract Australia’s most experienced and lawyers and protect judicial independence while not being too excessive, as judges’ are paid by the government from taxpayer’s money.

B. CURRENT SALARIES OF SELECT FEDERAL AND STATE COURT JUDGES

High Court

Current salary:

Chief Justice $536,070

Judge $486,480

Law behind the salary:

Section 12 of the High Court of Australia Act 1979 (Cth) provides that the Chief Justice and Justices of the High Court shall receive salary and allowances fixed by Parliament from time to time. Parliament created the Remuneration Tribunal and gave the Remuneration Tribunal the power to determine salary, allowances and other matters for office holders including judicial offices (s.7 Remuneration Tribunal Act 1973 (Cth)). The current salary of High Court judges is set out in the current determination, “Remuneration Tribunal Determination 2015/10 Judicial and Related Offices - Remuneration and Allowances”.

Federal Court

Current salary:

Chief Justice $453,960

Judge $412,550

The law behind the salary:

Section 9 of the Federal Court of Australia Act 1976 (Cth) provides that the Chief Justice and judges of the Federal Court are to receive the salary and allowances as fixed from time to time by Parliament. Parliament created the Remuneration Tribunal and gave the Remuneration Tribunal the power to determine salary, allowances and other matters for office holders including judicial offices (s.7 Remuneration Tribunal Act 1973 (Cth)). The current salary of Federal Court judges is set out in the current determination, “Remuneration Tribunal Determination 2015/10 Judicial and Related Offices - Remuneration and Allowances”.

Victorian Supreme Court

Current salary:

Chief Justice $465,548

Judge $412,550

The law behind the salary:

Section 82 of the Constitution Act 1975 (Vic) states that the salaries, allowances and pensions of judges of the Supreme Court are to be paid at the rate applicable under the Judicial Salaries Act 2004 (Vic). Section 4(4) of the Judicial Salaries Act 2004 (Vic) states that Supreme Court judges are to be paid the salary payable to Federal Court judges under s.9 of the Federal Court of Australia Act 1976 (Cth). $412,500 is the current salary payable to Federal Court judges, so Supreme Court judges in Victoria will be paid this amount. Under ss. 4 and 6 of the Judicial Salaries Act 2004 (Vic) the Chief Justice is entitled to 112.86% of the salary of a Supreme Court Judge. 112.86% of $412,500 is $465,548.

Victorian County Court (District Court)

Current salary:

Chief Judge $412,550

Judge $357,433

The law behind the salary:

Section 10 of the County Court Act 1958 (Vic) states that judges are to be paid in accordance with the Judicial Salaries Act 2004 (Vic). Sections 4 and 6 of the Judicial Salaries Act 2004 combined provide that County Court judges are entitled to a proportion of the annual salary of a Supreme Court judge. The Chief Judge of the County Court is entitled to 100% of the rate of a Supreme Court judge. This is $412,550. A judge of the County Court is entitled to 86.64% of the rate of a Supreme Court judge. This is $357,433.

NSW Supreme Court

Current salary:

Chief Justice $482,470

Judge $431,160

The law behind the salary:

Section 29 of the Supreme Court Act 1970 (NSW) provides that judges are entitled to remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975 (NSW). Section 13 of the Statutory and Other Offices Remuneration Act provides that the Statutory and Other Offices Remuneration Tribunal (SOORT) is to make annual determinations on remuneration to be paid to judges and other specified office holders. The relevant determination is SOORT’s “2015 Annual Determination for Judges and Magistrates”.

NSW District Court

Current salary:

Chief Judge $431,160

Judge $386,160

The law behind the salary:

Section 15 of the District Court Act 1973 (NSW) provides that judges are entitled to remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975 (NSW). The Chief Judge of the District Court is entitled to the same remuneration as a judge of the Supreme Court (s.15A District Court Act 1973 (NSW). Section 13 of the Statutory and Other Offices Remuneration Act provides that the Statutory and Other Offices Remuneration Tribunal (SOORT) is to make annual determinations on remuneration to be paid to judges and other specified office holders. The relevant determination is SOORT’s 2015 Annual Determination for Judges and Magistrates.

SA Supreme Court

Current salary:

Chief Justice $462,020

Judge $412,550

The law behind the salary:

Section 12 of the Supreme Court Act 1935 (SA) provides that the Chief Justice and judges of the Supreme Court are entitled to salary and allowances at rates determined by the Remuneration Tribunal. The relevant Remuneration Tribunal determination is Determination 9/2014 which provides salaries and allowances in Determination 5/2013 shall continue to apply. The current salary noted above is taken from Determination 5/2013.

SA District Court

Current salary:

Chief Judge $412,550

Judge $364,320

The law behind the salary:

Section 13 of the District Court Act 1991 (SA) provides that the Chief Justice and judges of the District Court are entitled to salary and allowances at rates determined by the Remuneration Tribunal. The relevant Remuneration Tribunal determination is Determination 9/2014 which provides salaries and allowances in Determination 5/2013 shall continue to apply.

Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139 – Federal Court slams lower court for not finding racial discrimination in “black babies” case.

The latest racial discrimination case involves several remarks made by a Department of Education employee towards an indigenous graduate Vata-Meyer. The employee who made the remarks was incredibly unsophisticated and insensitive, but this was only one factor and an overreliance on this finding and a failure to consider the elements of the s.9 test misguided the lower court.

Background

Vata-Meyer is an indigenous woman who was employed by the Department of Education under the Indigenous Graduate Recruitment Program. On the 28 September 2011 whilst at work she was the target of a series of comments from an “obtuse” and “remarkably unsophisticated” employee, Mr Lee, who held a role in human resources management. The matter was originally lodged with the Australian Human Rights Commission, who issued a “no reasonable prospect of resolution” certificate on 5 September 2012, enabling Vata-Meyer to commence proceedings in the Federal Circuit Court (FCC). On 10 September 2014, the FCC dismissed the application, and Vata-Meyer appealed to the Federal Court. 

The alleged discriminatory conduct

Three separate incidents allegedly occurred on 28 September 2011:

1.       “Black babies” incident

Mr Lee had a packet of Chiko jelly babies and offered some to Vata-Myer and said “have some black babies”. A colleague said “you can’t talk like that” to Mr Lee. Vata-Myer made it clear that the comment was unwelcome.  Mr Lee conceded he said “here are some black babies”, as he had referred to Chikos as “black babies” since he was a child.

2.       “Michael Jackson” incident

At a team afternoon tea Mr Lee interjected in a conversation and said “like Michael Jackson”. Mr Lee denied this comment occurred.

3.       “Coon” incident

Cheese was served at the team afternoon tea. A colleague asked about the difference between camembert and brie. Mr Lee interjected with “I like Coon”. There was a discrepancy between Vata-Myer’s version that Mr Lee interjected and Mr Lee’s version that he was asked what kind of cheese he liked and he responded with “I just like plain old Coon cheese”. One meaning of coon as defined in the Macquarie dictionary is “(derog.)(racist) a member of dark-skinned people, as an Indigenous Australian or an African American” and is capable of racial connotations.  

Section 9 Racial Discrimination Act 1975 (Cth)

There are three components to the racial discrimination test under s.9 of the RDA (see also [57]-[60] of the judgement):

1.       An act involving a distinction, exclusion, restriction or preference;

2.       The distinction, restriction or preference must be based on race, colour, descent or national or ethnic origin;

3.       The act must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, in this case, of a right to work or to just and favourable conditions of work.

Problems with the lower court decision

The Full Court of the Federal Court was scathing on the FCC’s decision which contained inadequate analysis, applied the wrong standard of proof, and placed emphasis on certain evidence without explanations as to why that evidence was preferable over other evidence. The Full Court identified these main errors:

1.       Failure to consider the “Michael Jackson” incident

The FCC did not decide whether the “Michael Jackson” comments were made, let alone whether the elements in s.9 RDA were established ([68)]. 

2.       Failure to properly consider the “Coon” incident

The FCC stated that the word “coon” can have several meanings including a racially pejorative meaning, but did not decide on the meaning the word took on in the context ([70)]. The primary judge did not reconcile competing accounts of whether the phrase was said without prompting (Ms Vata-Meyer’s version) or whether the phrase was said in response to a direct question about the type of cheese Mr Lee likes (Mr Lee’s version). The primary judge accepted Mr Lee’s version without engaging with the alternative account ([70)].

3.       Application of the wrong standard of proof

The standard of proof for civil proceedings is “on the balance of probabilities” (s.140 Evidence Act 1995 (Cth))). However, the primary judge imposed a higher standard by finding Mr Lee did not understand his comments might cause offence and giving him the benefit of the doubt on the basis of his examination and cross-examination in the witness box ([73]). The mere availability of innocent explanations does not mean the purpose was a lawful one. The question is meant to be determined on the balance of probabilities, while the standard applied by the FCC was closer to “beyond reasonable doubt” the criminal standard of proof.

4.       Failure to properly consider Mr Lee’s purpose in making the comments

The FCC fixated on their finding that Mr Lee did not understand that his comments might cause offence. This finding does not address any element in s.9 of the RDA.  The primary judge was entitled to have regard to Mr Lee’s behaviour in the witness box, but was required to evaluate the answers given against ostensibly reliable evidence of other witnesses ([82]).

5.       Failure to consider Mr Lee’s training and position

Mr Lee held a relatively senior position in human resources management and had undertaken comprehensive cultural awareness training including several modules on indigenous culture and awareness. Someone of this position who had received this training would not be oblivious to the hurt they might cause to an indigenous person through the comments made ([84]). The Full Court found that the primary judge did not “weigh up the strength of the cumulative evidence to determine whether on the balance of probabilities” Mr Lee was actuated by an unlawful purpose ([88]). Identifying purpose is one component of the offence under s.9 and the primary judge failed to engage with this component.

6.       Failure to consider the alleged discriminatory conduct separately from the subsequent investigation

The primary judge muddled the consideration of elements of s.9 with the way the Department subsequently handled the complaint. The steps taken to investigate a complaint cannot deprive the offending conduct of its discriminatory nature ([92]). The primary judge failed to consider whether the conduct of Mr Lee on its own infringed s.9 of the RDA.

7.       Failure to consider steps taken after the alleged conduct

The FCC also failed to properly consider subsequent action taken by the Department. This consideration is relevant to s.18A(2) which states an employer will not be vicariously liable for the conduct of an employee where they “took all reasonable steps to prevent the employee or agent from doing the act”.

Outcome

There was a clear miscarriage of justice in the trial ([100]). While the Federal Court has the power to correct a judgment and the orders made, the Full Court could not do so in this instance due to the lack of evidence and lack of transcript before them and the inability to hear or see witnesses. This is very unfortunate for Vata-Meyer, as she cannot be sure of the outcome which will flow from the retrial in the Federal Circuit Court. She is seeking a variety of remedies including:

·         Order for redeployment within the Australian Public Service;

·         Compensation for economic loss, medical expenses and hurt, distress and humiliation;

·         An apology;

·         An order that the Department require Vata-Meyer’s supervisors to undergo anti-discrimination, anti-bullying and harassment training; and

·         Costs.

It is open to the Department to argue the s.18A “all reasonable steps” defence, though it is not clear from the facts on Appeal whether the Department will try and avoid vicarious liability.