Murphy v Electoral Commissioner [2016] HCA 36 – electoral law, s7 and s28 of the Constitution and the proportionality test

Why this case is important

Murphy v Electoral Commissioner [2016] HCA 36 (Murphy) is an important case for the following reasons:

1.       The High Court clarifies the proportionality test to use in an electoral context when determining whether laws are contrary to s.7 and s.28 of the Constitution; and

2.       The High Court discusses whether the structured approach to proportionality used by the High Court in McCloy v New South Wales [2015] HCA 34 should be extended to Constitutional contexts outside of the implied freedom of political communication.

Murphy also represents the end of the line for challenging current electoral laws in the Commonwealth Electoral Act 1918 (Electoral Act) as the plaintiffs challenged the long existing seven day enrolment and suspension period laws.

Background

The Electoral Act details Australia’s electoral system including how a person can enrol, transfer enrolment, amend an enrolment detail or remove a name from enrolment. A suspension period exists in which time a person’s name must not be added, transferred or removed from the Electoral Roll. The suspension period runs from 8pm on the day the Electoral Rolls close to the close of the poll for the election (suspension period laws).  

When a writ for a federal election is issued, persons who are not enrolled have seven days to lodge their application for enrolment, otherwise they will not be on the Roll for the election and will be unable to vote. Similarly, after the writ is issued, persons who wish to transfer enrolment must do so within seven days if they wish to vote in the division in which they live (seven day enrolment laws). The seven day grace period was introduced into the Electoral Act in 1983 and has existed since then, bar for a short period where the grace period was dramatically shortened (see discussion of Rowe below).

The plaintiffs in Murphy challenged the validity of the suspension period laws and the seven day enrolment laws on the basis they are contrary to sections 7 and 24 of the Constitution. The provisions challenged were sections 94A(4), 95(4), 96(4), 102(4), 103A(5), 103B(5), and 118(5). The plaintiffs argued that the effect of the suspension period laws and the seven day enrolment laws is that persons are disqualified from the popular choice (voting) mandated by the concept of representative government provided for in s.7 and s.24 of the Constitution, and that there is no substantial reason for this disqualification.

Previous High Court challenges to Electoral Act provisions

Roach v Electoral Commissioner (2007) 233 CLR 162

In 2004 the Electoral Act was amended so that prisoners sentenced to imprisonment for three years or more were no longer eligible to vote at federal elections. In 2006 the Electoral Act was amended again, the effect being that all sentenced prisoners were disqualified from voting at federal elections.

The majority judges in Roach (Gleeson CJ, and Gummow, Kirby and Crennan JJ) held, relying on the words “chosen by the people” that the concept of representative government in s.7 and s.24 of the Constitution includes a universal franchise, generally held by all adults. Prior to Roach, it was thought that the words “chosen by the people” referred merely to direct and popular choice. The High Court majority created the following two step approach:

1.       Does the provision effect a disqualification from the entitlement to vote? (More generally: Does the provision inhibit or burden the system of representative government envisaged by s.7 and s.24 of the Constitution that the parliament be “directly chosen by the people”?)

2.       Is there a substantial reason for exclusion in that the means adopted is proportionate to the legitimate ends sought to be achieved?

The majority judges held that the 2006 laws preventing all prisoners from voting were invalid, as sentences imposed for shorter periods were often arbitrary and caused by issues such as homelessness. The laws were not proportionate to a legitimate ends, as the criterion for exclusion was unrelated to the seriousness of the offence.

In contrast, the 2004 laws that disqualified prisoners serving a sentence of three years or more were held to be valid, as removing the right to vote for serious misconduct was a “substantial reason” for exclusion from the franchise, and the criterion for exclusion from the franchise was clearly relatable to the seriousness of offending.

Rowe v Electoral Commissioner (2010) 243 CLR 1

In 2006 parliament amended the Electoral Act so that a claim for enrolment had to be made by 8pm on the day of the issue of the writs to be considered for that election, essentially removing the seven day grace period, and only giving potential voters a matter of hours in which to lodge their application for enrolment after the writ for the election was issued. The Act was also amended so that transfer claims had to be made by 8pm on the day of the closing of the Rolls which was fixed as the third working day after the issue of the writs. The amendments were introduced to create a smoother and more efficient electoral system.

The introduction of the 2006 laws diminished the opportunity for enrolment that existed prior to its enactment, satisfying the first limb of the test in Roach. The High Court then considered whether there was a “substantial reason” for the laws. The majority judges came to the same conclusion using a slightly different approach to the second limb of the test in Roach. French CJ concluded there was not a “substantial reason” as the detriment was disproportionate to the benefits produced from a smoother and more efficient electoral system. Gummow and Bell JJ came to the same conclusion but explicitly used the proportionality approach of the majority in Roach. Crennan J, the final judge forming the majority, interpreted a “substantial reason” as being a law “necessary”, “necessary” not being limited to a law that is essential and unavoidable but also a law which was “reasonably appropriate and adapted to serve a legitimate end”. As the laws were not proportionate to the reasons for the amendments, the High Court majority held the laws invalid.

The outcome in Murphy

The outcome was unanimous (French CJ and Bell J, Kiefel J, Gageler J, Keane J, Nettle J, and Gordon J) in that all judges held the provisions imposing the cut off for enrolment and transfer of enrolment are not repugnant to s7 and s24 of the Constitution. However, the judges differed significantly on how they arrived at this conclusion.

The “substantial reason” test

The second component in the Roach test for validity, is that there be a “substantial reason” for exclusion from the universal franchise. The requirement for a “substantial reason” can be traced back to Brennan CJ’s judgment in McGinty v Western Australia (1996) 186 CLR 140. In Murphy, the High Court confirmed that the proportionality test requires and analysis of whether the law is “reasonably appropriate and adapted”. In the context of s.7 and s.28, the law must be reasonably appropriate and adapted “to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government”. The “reasonably appropriate and adapted” test for proportionality has been used as the test for validity in a number of constitutional and administrative law contexts including to determine the validity of purposive powers, incidental powers, and powers whose exercise limits the enjoyment of a constitutional guarantee, such as the implied freedom of political communication.

High Court judges differ on how to apply the “substantial reason” test

In Murphy, French CJ and Bell J discussed the proportionality criteria set out by the High Court in the case of McCloy v New South Wales [2015] HCA 34, an implied freedom of political communication case. In McCloy French CJ, Kiefel, Bell and Keane JJ adopted the European approach to proportionality in developing a three step approach:

1.       Suitability – whether the law had a rational connection to the purpose of the provision;

2.       Necessity – whether there was an obvious alternative, reasonably practical means of achieving the same purpose with a less restrictive effect on the freedom; and

3.       Adequacy in its balance – whether the extent of the restriction imposed by the impugned law was outweighed by the importance of the purpose it served.

The High Court in McCloy did not discuss the application of the three step approach to proportionality outside the context of the implied freedom of political communication. In Murphy French CJ and Bell J stated that the McCloy three step “structured” proportionality criteria should be used:

1.       To determine the proportionality of laws burdening or infringing a constitutional guarantee, immunity or freedom; and

2.       In the case of laws burdening the representative government envisaged by s.7 and s.24 of the Constitution, the three step test may be relevant depending on the character of the law.

French CJ and Bell J were of the view the “suitability” component of the three step approach should be used to determine proportionality in all situations where determining whether a law, delegated legislative instrument or administrative act is a valid exercise of the relevant grant of power. No other judges supported the use of the McCloy test in the context of s.7 and s.24 of the Constitution.

Gordon J and Gageler J openly opposed the use of the “structured” proportionality approach in the context of s.7 and s.24 of the Constitution. Gordon J questioned whether the structured approach is appropriate at all in the Australian context, given that the judiciary cannot exercise legislative or executive power in Australia’s separation of powers. Gordon J took particular issue with the “necessity” stage of the structured approach, as this stage invites courts to inquire into alternative means of achieving the same purpose, an inquiry which has a legislative flavour to it. Even if it was accepted the structured approach was appropriate in the Australian context, Gordon J reasoned that there is a significant difference between using the structured approach for the implied freedom of political communication in McCloy and the context in Murphy, as parliament is required to enact laws to provide for an electoral system. This positive role of parliament and the broad scope of legislative power in relation to elections “distinctly marks out the present constitutional context from any inquiry about the implied freedom of political communication”.

Gageler J rejected the application of the “structured” proportionality criteria in McCloy, reiterating his reservations about importing such a structured, prescriptive and open ended approach into Australian Constitutional law, referring readers to his dissenting reasons in McCloy. Gageler J was obviously disappointed with the High Court’s continued use of the structured proportionality criteria, writing “what is at best an ill-fitted analytical tool has become the master, and has taken on a life of its own”.

Keane J did not find it necessary to apply the proportionality test, finding no burden on the Constitutional mandate in s.7 and s.24 of the Constitution.

Kiefel J only briefly discussed the utility of the test in McCloy, stating that the alternative to the three step test in determining proportionality is to ask whether the law is “reasonably appropriate and adapted” to their legitimate end. It is not entirely clear from Kiefel J’s analysis which approach Her Honour preferred, however Kiefel J found that the laws were proportionate, as the effect of the suspension period is balanced by the certainty and efficiency achieved by having a suspension period.

Post Murphy how do I apply the proportionality test in the context of s.7 and s.28 of the Constitution?

Is this the case of “one test to rule them all”? Will the “structured” approach to proportionality in McCloy be used for all proportionality tests in the Constitutional context? The answer for now is no. While French CJ and Bell J are obvious supporters of extending the scope of the structured approach to proportionality used in McCloy to other Constitutional contexts, no other High Court judge in Murphy supported this approach. 

As Gordon J put it:

“It should not be assumed that, because a particular test for proportionality has been adopted in one particular constitutional context, it can be uncritically transferred into another context, constitutional or otherwise, even within the same jurisdiction”.

The structured proportionality test in McCloy can safely be applied only in determining whether a law impugns the implied freedom of political communication (see blog post on McCloy for further details). In other Constitutional contexts, the structured proportionality test is not to be used to determine proportionality. In the case of s.7 and s.28 of the Constitution, when applying the second part of the test in Roach, the proportionality test, ask whether the laws are reasonably appropriate and adapted to achieve the identified end.   

Jurisdictional facts – what are they and why do we care?

Jurisdictional fact review is taught quickly at law school and soon forgotten altogether as students focus on more common grounds for judicial review. If you find yourself working in administrative law as a graduate, you may need to brush up on your knowledge. Read this blog post then go forth and impress your team with your understanding of a niche but important area of law.

Why do we care about jurisdictional facts?

As a rule of thumb, a factual error is not a ground for review of a decision. An exception to this rule exists for jurisdictional facts. Where an error has been made about a jurisdictional fact, this is a ground for review of a decision at common law. Jurisdictional fact review is unique in that the reviewing court can receive fresh evidence. For other grounds of review, the reviewing court is stuck with findings of facts made by the decision maker, as questions of fact are seen as belonging to the merits, and the task of a court is to inquire into the legality of the decision (this is known as the merits/legality distinction). In jurisdictional fact review, the evidence before and reasoning of the administrator in fact finding can be reviewed by the court and the existence of facts can be determined afresh. Jurisdictional fact review is an important ground of review to remember because of this opportunity it gives the review court to go beyond the merits/legality distinction.

How to identify a jurisdictional fact

Broadly speaking, a jurisdictional fact is a factual circumstance that must exist prior to a decision being made. A jurisdictional fact might be a certain event or requirement that must occur before a decision is made.  In Timbarra (see key cases below for summary) Spigelman CJ stated there are two factors to consider when determining whether a fact is a jurisdictional fact:

1.       Objectivity: Did parliament intend that the fact must actually exist or be objectively determined as opposed to the decision maker just been satisfied in something? If the act refers in objective terms to the belief, satisfaction would indicate subjectivity rather than objectivity. Note that when Spigelman CJ refers to parliament’s intention he is referring to the intention as evident from the words parliament chose to use in the text of the legislation. While the Explanatory Memorandum and other aids can be taken into account, normal principles of statutory interpretation apply and the starting point is always with the text of the statute.

2.       Essentiality: Did parliament intend that the absence or presence of the fact will invalidate the action. One important factor which is often determinative is whether the fact is preliminary to the exercise of power or arise in the course of exercising the power, if the fact is preliminary to the exercise of the power is not likely to be essential.

A jurisdictional fact will form the basis for judicial review of the decision if it does not exist or has been made in error.

Hypothetical examples:

1.       If legislation states a tribunal can only exercise its powers when sitting on a Wednesday, the fact that it is a Wednesday may be a jurisdictional fact;

2.       If legislation states a person must be convicted of a crime before a decision to revoke a visa can be exercised, the fact a person has been convicted of a crime may be a jurisdictional fact.

Do not confuse a jurisdictional fact with:

1.       A jurisdictional requirement

A jurisdictional requirement is a precondition that must be met before a valid decision can be made. Where a jurisdictional requirement is not met it may cause a jurisdictional error which is a ground for review. If you want to revise jurisdictional requirements the High Court’s discussion of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163 (Craig) is a must read.

2.       A jurisdictional opinion

Do not confuse a jurisdictional fact with a jurisdictional opinion (see Spigelman CJ’s objectivity/subjectivity distinction above). As Aronson, Dyer and Groves put it in Judicial Review of Administrative Action (4^th ed) a jurisdictional fact “is purely factual”. Note though there are differing opinions on how “purely factual” an opinion must be (see Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 per Gummow J). If you do not understand the difference between a jurisdictional fact and a jurisdictional opinion, you may want to go right back to basics to review the difference between a fact and an opinion and then go from there. Where you have a jurisdictional opinion, not a jurisdictional fact, the normal principles of reviewing a subjective power will apply and the court cannot accept evidence and decide whether the relevant subjective criterion was met.

Key cases

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (Enfield)

Facts:

The case of Enfield concerned the expansion of waste treatment plant. The developers had applied to the Development Assessment Commission (DAC) for approval of their expansion plan, which the Local Council strongly opposed. Where a development proposal could be classified as “special industry”, the development application required the consent of both local Minister and Council. The Local Council argued that the extension of the waste treatment plant was “special industry” as it would create smells and allow smells to escape to nearby land. The DAC considered the evidence about smells, formed the view the development was not a “special industry” and approved the application.

Legal issue:

Whether the “special industry” requirement was a jurisdictional fact or an opinion.

High Court:

Found that the characterisation of a proposed development as a “special industry” is a jurisdictional fact, as the legislative regime did not frame the requirement in terms of an opinion and the question of whether a development was a “special industry” played a pivotal role in the development approval scheme, as it was a trigger for public participation and other requirements. The “special industry” requirement was framed objectively as something to be objectively determined.

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 5 (Timbarra)

Facts: Ross Mining submitted an application to extend one of its goldmines. The legislation required a Species Impact Assessment (SIA) to be submitted with the application where the development was “likely to significantly affect threatened species”. Ross Mining did not submit a SIA, as it argued the development was not likely to significantly affect threatened species. Timbarra Protection Coalition, a lobby group, argued the mining development was likely to significantly affect a number of threatened species including frogs, bats and owls, therefore no “application” had been made and the council could not approve the application as a jurisdictional fact did not exist.

Legal issue: Whether the requirement to submit an SIA where the development was “likely to significantly affect endangered species” was a jurisdictional fact and whether fresh evidence as to the fact could be considered by the reviewing court.

First instance – NSW Land and Environment Court, Justice Tolbert:

Held there was no jurisdictional fact and no fresh evidence could be heard.

NSW Court of Appeal:

Found there was a jurisdictional fact and fresh evidence could be heard by the reviewing court. The legislation was expressed such that the SIA had a pivotal role in the statutory scheme as it ensured detailed information was available to decision makers. The submission of an SIA was necessary before consent was granted or not. Weighing against these factors was that reasonable minds could differ about whether a development would “significantly affect” endangered species. However, the Court of Appeal found the requirement was sufficiently objective and was therefore a jurisdictional fact. The matter was remitted back to the Land and Environment Court to hear fresh evidence about the significant affect of the development on endangered species.

Good luck identifying jurisdictional facts. Don’t be disheartened if you do not understand jurisdictional fact review or if you get confused between different grounds of review. I certainly did not understand the concept five years ago when I first encountered administrative law as a law student. Keep at it.

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 – Reservist saved by implied freedom of political communication

An Army Reservist of Roman Catholic faith who was terminated due to his highly critical comments made on social media concerning gay members of the ADF, women serving on the front line, and Islam has been saved by the Federal Court who found the ADF’s termination decision was contrary to the implied freedom of political communication in the Constitution. The case sheds light on the extent to which the ADF (or employers by analogy) can control a person’s political expression on social media out of hours. Note that this is not an unfair dismissal case, as members of the Australian Defence Force (ADF) are not employees. Members of the ADF are commissioned, with their commission being governed by the Crown prerogative and regulated by the Defence Act 1903 (Defence Act) and the Defence (Personnel) Regulations 2002 (Personnel Regulations).

Background and facts

Mr Bernard Gaynor served in Afghanistan (2006) and Iraq (2006-7, 2008-9 and 2009) and was awarded the United States of America Meritorious Service Medal in October 2009. In July 2011 he transferred to the Australian Army Reserve. At the time the incidents that led to his termination occurred, Mr Gaynor was a Major in the Army Reserve.

In January 2013, Mr Gaynor launched a webpage, Twitter page and Facebook page to promote his candidature as a Senate Candidate for Katter’s Australian Party for the Federal elections in 2013. On 23^rd January Mr Gaynor tweeted “I wouldn’t let a gay person teach my children and I am not afraid to say it”. Mr Gaynor’s webpage identified him as having served in the Iraq War. On the 24^th January, Mr Gaynor made a press release available along the same lines, that parents should be able to choose if their children are taught by a gay teacher.

On 6 February 2013 Major Gaynor was interviewed and counselled by Lieutenant Colonel Buxton who directed Major Gaynor, using the relevant DI(G), not to make any further intemperate or inflammatory remarks on social media, whether or not on duty or in uniform while he remained a member of the ADF.

Mr Gaynor ignored this direction, and made no attempt to prevent his audience from knowing he was a current ADF Reservist. On 22^nd March 2013 the Deputy Chief of Army sent Mr Gaynor a letter referring to his publications and asking him to stop. Mr Gaynor also ignored the direction contained in this letter.

In March and April 2013 Mr Gaynor published a number of controversial statements on social media including:

1.       A series of press releases, reflecting the material on his webpage, critical of the ADF’s participation in the Mardi Gras, stating that the ADF was accommodating to gay officers and transgender officers but discriminatory against Christian members who make public comment.

2.       Press releases critical of the ADF’s women on the front line policy.

3.       An article on his webpage headed “domestic betrayal a waste of soldiers’ sacrifices” which was openly critical of defence policy in Afghanistan and linked Islam to violence.

4.       A Facebook post which was critical of the ADF’s policies in relation to gay officers, sex-change operations, women serving on the front line, and Islam. The post contained a link to a press release by Mr Gaynor. Both the Facebook post and press release identified Mr Gaynor as a Reservist.

5.       A Facebook post where Mr Gaynor wrote “at what point does the ADF become complicit in child abuse? Should children be exposed to nudity and sexually explicit behaviour at the Mardi Gras?”

6.       A Facebook post critical of ADF personnel participation in Mardi Gras that directly mentioned the Deputy Chief of the Army. The identification of the officer was intended to mock and ridicule the officer. Mr Gaynor also mentioned the Deputy Chief of the Army in a tweet along the same lines.

In May 2013, Mr Gaynor became more aggressive in his strategy and turned specific attention to the transgender officer on the staff of the Chief of Army. His comments were personal and offensive such as “he thinks that because he has had a nip here, a tuck there and popped a bunch of pills that he is now a woman” and “the Army is now the employer of choice for those who want to take their cross- dressing career a little further”.

On 30 May 2013 My Gaynor was served with a Termination Notice issued by Chief of Army who was satisfied the criteria in reg.85(1)(d) and (1A) was established (Termination Notice). My Gaynor responded with a statement of reasons on 27 June 2013.

The decision to terminate Mr Gaynor’s commission was made on 10 December 2013 by the Chief of the Defence Force (Termination Decision). A variety of reasons were given in the termination decision including:

·         being openly critical on social media of ADF and government policy, support offered to gay and transgender members, and the decision to permit women to serve in combat roles;

·         clearly identifying as an active Army Reserve member on many occasions when making comments contrary to ADF policies;

·         behaviour generally acting contrary to policies and cultural change initiatives;

·         conduct repeatedly inconsistent with the DI(G) PERS 50-1;

·         failure to modify online behaviour; and

·         persistence of the conduct.

Mr Gaynor made a Redress of Grievance complaint, and progressed it through all internal avenues before the Chief of Defence Force finally rejected the Redress of Grievance on 30 June 2014.

Mr Gaynor challenged the Termination decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) as well as under constitutional grounds (s.116 freedom of religion, and the implied freedom of political communication). He was successful before Justice Buchanan on the implied freedom of political communication argument.

Defence Instructions (General) (DI(G))

The Secretary and Chief of the Defence Force have joint administrative responsibilities in the administration of the Defence Force (s.9A Defence Act). Instructions and policies issued with the authority of the Secretary and the Chief of the Defence Force pursuant to s.9A have statutory effect and are known as Defence Instructions (General) (DI(G)). DI(G)’s relevant to this case include:

·         DI(G) PERS 50-1 issued 18 October 2001 “Equity and Diversity in the Australian Defence Force”;

·         DI(G) ADMIN 08-1 issued 5 October 2007 “Public comment and dissemination of official information by Defence personnel”; and

·         DI(G) ADMIN 08-2 issued 16 January 2013 “Use of social media by Defence personnel”.

Mr Gaynor was required to follow these Defence Instructions.

Mr Gaynor was also required to abide by the Chief of Army Directive CA Directive 15/12 “Army Implementation Plan for Removal of Gender Restrictions” which attempts to improve the Army’s gender diversity and implement an ADF wide plan.

Personnel Regulations

Regulation 85 of the Personnel Regulations lists the reasons for which the service of an officer may be terminated. The list includes at 1(d):

“the Chief of the officer’s Service is satisfied that the retention of the officer is not in the interest of:

(i)                  The Defence Force; or

(ii)                The Chief’s service”

The reasons for which the Chief of the officer’s Service may be satisfied under 1(d) are not limited but include reasons relating to the officer’s behaviour.

Regulation 85(2) permits the Governor-General (or their delegate under reg.85(6)) to issue a termination notice stating the reasons, particulars and facts of termination, inviting the officer to give a statement of reasons and giving a period of at least 28 days for the officer to provide their statement of reasons.

Regulation 85(4) states that the Governor General (or their delegate under reg.85(6)) must issue a termination decision where a statement of reasons has been provided by the officer within the period, and having considered the statement, the Governor General is of the opinion the reason for termination has been established and has not been affected by a change of circumstance since the termination notice was given to the officer. 

In Mr Gaynor’s case, the Chief of the Defence Force and Chief of Army had been delegated the power to issue a termination notice and make a termination decision.

The ADJR Act claim

The ADJR Act claim was brought under s.5 of the ADJR Act. Mr Gaynor attempted to rely on every ground available in s.5(1), which made it difficult for Justice Buchanan to distil the essence of Mr Gaynor’s argument.

However, Justice Buchanan did conduct an analysis of possible grounds, reiterating that reg.85(1)(d) is a satisfaction power. The judiciary cannot rule on whether the satisfaction of a decision maker is appropriate, as this would amount to merits review, not judicial review. Similarly, the judiciary cannot analyse the appropriateness of ADF policies. The DI(G) applied to Mr Gaynor whether or not he was in uniform, as his service obligation was to obey the instructions and orders he was given and respect the disciplined nature of the ADF. The DI(G)’s themselves were not unlawful. There was no evidence showing bias, judgment or predetermination by the Chief of the Defence Force and no substance in any of the challenges to the Termination Decision under the ADJR Act.

The constitutional law claims

Section 116

Section 116 of the Commonwealth Constitution states:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

Mr Gayor argued that his posts on social media were protected by s.116 of the Constitution, as his comments amounted to the exercise of his Roman Catholic religion. Justice Buchanan immediately dismissed this argument, as the Termination Decision did not require Mr Gaynor to refrain from the exercise of his religion or satisfy a religious test of any kind. There is limited case law on the point, Justice Buchanan cited Mason ACJ and Brennan J’s test from Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120:

“The area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion”.

Justice Buchanan applied this test to Mr Gaynor’s situation and found s.116 could not be breached, as none of the instructions or orders given to Mr Gaynor or the Termination Decision infringe the test.

Implied freedom of political communication

Justice Buchanan begins his analysis by identifying the two limb test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange):

Limb 1: Does the law effectively burden the freedom?

Limb 2: Is the object of the law compatible with the constitutional system of representative and responsible government and is the law reasonably appropriate and adapted to achieving that legitimate end?

Justice Buchanan also describes the distillation of the second limb of Lange in McCloy v State of New South Wales [2015] HCA 34 where the majority required proportionality testing in the second limb, requiring an analysis of whether the law is suitable, necessary and adequate in its balance. For a more detailed analysis of the two limbed test, see my blog post on McCloy v State of New South Wales [2015] HCA 34.

Importantly, Justice Buchanan reiterated that the freedom is not a personal right, and in Mr Gaynor’s case, the implied freedom is a suggested limitation on the discretion available under reg.85 of the Personnel Regulations. The first limb required an examination of whether the statements and communications by the applicant were political in nature. Justice Buchanan found that Mr Gaynor’s statements were clearly political in nature, and the fact the statements were offensive did not take them outside the scope of political discourse, even when directed at an individual. The Termination Decision was essentially disciplinary action which was an adverse consequence aimed at preventing further communications.

In considering the second limb, the reasons given in the Termination Notice were analysed. As identified in the facts above, the Termination Notice contained a mix of reasons for termination. The reasons included Mr Gaynor identifying himself as an ADF member while making his comments, but were not confined to this, and included the contention that Mr Gaynor’s public comments and general behaviour and his membership of the ADF as such were incompatible. Justice Buchanan concluded that the main reason behind the decision to terminate Mr Gaynor’s commission was the fact that Mr Gaynor had expressed his views publicly while he was still a member of the ADF.

Mr Gaynor had made the comments in a personal capacity, unconnected to the ADF except by the ongoing formal circumstance of his ADF membership. Justice Buchanan found the second limb of the Lange test was not satisfied. The decision to terminate Mr Gaynor’s commission exceeded the statutory authority under reg.84(4) of the Personnel Regulations because it was not reasonably proportionate and adapted to a legitimate end served by reg.84.

In applying the “suitable, necessary and adequate in its balance” criteria from McCloy, Justice Buchanan considered the question of whether “a regulation which directly prohibited the applicant’s conduct, would be valid if it was based on the same matters as the findings of CDF in the Termination Decision”. Justice Buchanan found such a regulation would not be “adequate in its balance”:

1.       Suitable – there is a need for discipline, obedience to orders and adherence to standards by ADF members, and a restriction on public comment is “suitable”.

2.       Necessary – there is not another obvious and compelling means of achieving the objective in the face of conduct such as Mr Gaynor’s who was defiant and intractable.

3.       Adequate in its balance –Mr Gaynor’s conduct involved the expression of political opinion, effectively as a private citizen. The burden on Mr Gaynor was significant, given the consequences of termination. The right to the freedom cannot be lost merely because of the main reason for termination, being Mr Gaynor remained a member of the ADF. Members of the full time regular services may rarely be free to publicy express opinions against the ADF, but the situation is not the same for Reservists who are often not on duty, and are private citizens when not in duty or uniform. When not in duty or uniform, Reservists should not have their freedom of political communication burdened.

While Justice Buchanan applied the elements of the McCloy distillation of the test, he made it clear his decision would fall the same way if he had applied the second limb of Lange in its traditional sense.

Key lessons

This case is a win for freedom of political communication advocates. It clearly states that the ADF cannot terminate a Reservist for expressing their political views where the political views are expressed when not on duty or in uniform, even where the Reservist makes it clear they are a current ADF member. The ADF case fell down on the “adequate in its balance” component of the second limb of the Lange test. If a decision lesser than termination had been made, this may have been “adequate in its balance”.

Analogies can be drawn from this case to the employment context. While each case will turn on an employee’s type of employment and the applicable policies, an employee’s freedom of political communication will be protected while the employee is acting in a private capacity. The protection may extend to instances where the employee states their connection to their employer, but this would depend on whether the second limb of Lange is satisfied, and in particular, whether the action taken against an employee is “adequate in its balance”. There is no higher authority case law on the application of the implied freedom of political communication to an employment law unfair dismissal context.

Note there is a strong chance this case will be appealed to the Full Court of the Federal Court and eventually the High Court. While it remains to be seen whether leave for appeal will be granted, given the case turned on the application of the “adequate in its balance” component of the test as enunciated in McCloy, and this is a new component of the second limb of Lange, there is a high chance leave will be granted.

What is the difference between judicial review and an appeal?

Understanding the difference between judicial review and an appeal is particularly important for junior lawyers working in litigation, public law, and the court system (such as associates, tipstaves and researchers). Although the basics of judicial review are taught at law school, it can be easy to quickly forget the basic distinction between judicial review and an appeal.

Appeal

An appeal challenges the outcome of a particular decision made by a tribunal or court. Generally, a person who is a party to the matter or aggrieved by the decision can lodge an appeal. Understanding the court hierarchy and statute detailing the right to appeal is important in understanding where to lodge your appeal. For example, if the original decision was made by the Victorian Civil and Administrative Tribunal (VCAT), an appeal can be made to the Supreme Court of Victoria (except if the decision was made by a President or Vice President of VCAT where the application for appeal must be made to the Court of Appeal).

Appeals can be by right or discretionary. Where the appeal is discretionary, an application must address why the appeal should be allowed and the grounds for appeal should. Leave to appeal will generally be granted at the Court of Appeal level where the applicant has “a real prospect for success”.

An example of when leave to appeal is required is for appeals to the High Court acting in its appellate jurisdiction under s.73 of the Commonwealth Constitution. The potential appellant must make an application for leave or special leave to appeal by filing Form 23 (r.41.03 High Court Rules 2004). Where leave is granted to appeal, the appellant can then initiate the appeal proceedings by filing the Form 24 notice of appeal (r.42.01, r.42.02 High Court Rules 2004).

After an appeal has been allowed, the appellate court will then make a decision as to whether the grounds of appeal have been made out. The appeal court will consider the submissions and decide on one of the following outcomes:

1.       Affirm the lower court decision;

2.       Modify the lower court decision – where the appellate court agrees in part with the lower court decision; or

3.       Reverse the lower court decision and find for the appellant. Where the appellate court finds that the lower court’s decision cannot be sustained, the decision of the lower court can be set aside. Reversing the lower court decision may also include setting aside orders made by the lower court and making new orders.

Pursuing judicial review of a decision is very different from appealing a decision. While an appeal focuses on whether the decision itself is correct or incorrect, judicial review focuses on whether the decision maker conformed with statutory or common law powers conferred on the decision maker.

Judicial review

Judicial review is an application for the court to determine whether an official action conforms with the power given. The judicial review process scrutinises the decision making process and analyses whether or not the decision was made within power. Decisions that may be subject to judicial review include decisions made by the executive arm of government, decisions made by tribunals, and decisions made by lower courts.

Examples of when an application for judicial review might be made is where there is some evidence the entity/decision maker granted with the public power has:

·         breached the limits placed on the grant of that power;

·         done something more than was authorised;

·         done something authorised in an unauthorised way; or

·         not done something when there was a duty to act.

The bar for finding an error has occurred is high – it is not enough that the court would have been minded to act differently – the regulator’s misjudgement or error must be so substantial as to take the impugned act or omission beyond that realm where reasonable minds would agree to differ.

The power to conduct judicial review comes from a number of sources:

1.       State and Territory Supreme Courts – the judicial review jurisdiction was part of the common law powers of the Supreme Courts at their foundation, and included the power to issue prerogative writs such as certiorari, prohibition and mandamus. Several jurisdictions have extended review powers to tribunals, such as NSW which has the NSW Civil and Administrative Tribunal and Victoria which has VCAT.  

2.       Federal Court (ADJR Act review)– has been granted a statutory judicial review jurisdiction by the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Federal Court can also undertake Constitutional judicial review, as s.39B(1) of the Judiciary Act 1903 gives the Federal Court similar jurisdiction to the High Court’s judicial review power under s.75(v) of the Commonwealth Constitution.

3.       High Court (Constitutional judicial review) – section 75(v) of the Commonwealth Constitution gives the High Court original jurisdiction in a number of matters including all matters “in which a writ of Mandamus or prohibition or injunction is sought against an officer of the Commonwealth”.  

Where a decision maker has not acted in conformity with the power given, the court will treat the decision as a nullity. The purported exercise of power is disregarded and is treated as yet to be effectively exercised. The court conducting the judicial review generally cannot substitute its decision for the decision of the original decision maker. If a court decides a decision was made beyond the scope of the original decision maker’s powers, the matter will be sent back to the relevant tribunal or government agency for the decision to be remade in accordance with the decision maker’s powers.

At common law, a number of remedies developed from prerogative writs are available where an application for judicial review is made. A prerogative writ is an official order whereby the judiciary directs another arm of government (the executive). These remedies commonly include:

1.       Mandamus – compels the performance of a public duty – i.e. compels a decision maker to make a decision.

2.       Prohibition – prohibits the decision maker from acting outside of the law.

3.       Certiorari – quashed past conduct for which there was no jurisdiction.

Less commonly:

4.       Quo warranto – requires a person to show the authority on which they hold a certain power.

5.       Procedendo – appellate court orders a lower court to proceed with judgment.

The ADJR Act expanded the type of remedies available and removed some of the requirements of the prerogative writs. For example, remedies available under s.16(1) of the ADJR Act include:

1.       Quashing or setting aside the decision;

2.       Referring the decision back to the decision maker for further consideration;

3.       Declaration stating the rights of the parties; and

4.       Directing parties to do or refrain from doing an act.

The outcome of a judicial review is very different to the outcome of an appeal where a judge can substitute the decision of the first instance judge with its own decision where necessary.

The distinction sounds easy….

The distinction between an appeal and an application for judicial review appears easy. However, it can get confusing for junior lawyers when reading a judgment where it is not made initially clear whether it is an appeal or a judicial review. In this case, scroll to the bottom of the judgment and look at the language used in the decision and orders. It is important to keep the difference in the forefront of your head. While most of the time litigation lawyers will appeal decisions, there may be circumstances in which an application for judicial review may lead to the desired outcome, especially where damages are not sought. 

TURC – Will Commissioner Heydon disqualify himself based on apprehended bias?

Commissioner Heydon is due to announce his decision on whether to disqualify himself tomorrow at 10am. The media discussions on whether Commissioner Heydon should dismiss himself from the Royal Commission on Trade Union Corruption (TURC) have focused on the political battle between the Labor Party and the Liberal Party, with the Labor Party claiming TURC has been a partisan witch hunt from the start. Few commentators have actually looked at the test for bias in depth.

The conduct in question:

Commissioner Heydon accepted an invitation to speak at the Sir Garfield Barwick address hosted by the Liberal Party. Commissioner Heydon withdrew his acceptance on 13 August.

The rule against bias

The rule against bias is based on the principle that “decision-making must be and be seen to be impartial”. In the case of Commissioner Heydon we are concerned with the “be seen to be impartial” component of the rule, being apprehended bias. Justice must not only be done but be seen to be done (Ebner at [6]).

The test for apprehended bias comes from Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 63:

Apprehended bias will exist where a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” [6].

Whether apprehended bias is present in any given case is very fact dependent, as an observer will have different expectations of the impartiality required by a decision maker in different circumstances. Commissioner Heydon is presiding over a Royal Commission. Most of the cases involve executive decision making or judicial decision making. However, despite factual differences, the principles in these cases apply to Commissioner Heydon’s situation.

Applying the test for apprehended bias – principles from case law

1.       The test for  apprehended bias uses the word “might”. Anyone who has followed Justice Heydon’s career would realise he is a black letter lawyer and would not let the incident affect his decision making. However, this is irrelevant. The test requires no prediction as to how the decision maker will actually approach the matter.  The consideration is “one of possibility (real and not remote). Not of probability” (Ebner [7]).

2.       There are two steps to applying the test:

a.       Identify what it is that might lead a judge to decide a case other than on its legal and factual merits; and

b.      Identify the connection between the matter and the feared deviation from the course of deciding the case on its merits [Ebner [7]).

3.       There are four broad categories of bias (Webb and Hay v the Queen [1994] HCA 30 per Deane J at [12]):

a.       Disqualification by interest – “cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment”;

b.      Disqualification by conduct – “cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias”;

c.       Disqualification by association – “cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings”; and

d.      Disqualification by erroneous information – “cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias”.

These categories overlap somewhat, particularly category 1 and 3, and category 3 and 4. Commissioner Heydon’s conduct in accepting an invitation to present at a Liberal Party event could come into the “disqualification by conduct” category.

4.       There is a difference between decision making as a Minister and judicial decision making, with the standards of detachment applicable to a Judge not applying to Ministers (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507). Commissioner Heydon is acting in his capacity as a Commissioner in the Royal Commission, not a Judge. While there is no case law on the application of the rule of bias to Royal Commissions, it is likely that a Commissioner will be held to similar standards of impartiality as a Judge.

5.       The “fair-minded lay observer”:

a.       Does not know the personality or character of the Judge. The fact a Judge has been a Judge for over 20 years and has consistently stuck to the black letter of the law is irrelevant (Honda Australia Motorcycle v Johnstone [2005] VSC 387).

b.      Has a broad knowledge of the facts and circumstances of both the proceedings and the events leading to the claim of apprehended bias (Honda Australia Motorcycle v Johnstone [2005] VSC 387).

Is the test satisfied?

While the finding of apprehended bias should not be made lightly, I believe the test for apprehended bias has been satisfied and that Commissioner Heydon should dismiss himself. The bare assertion that a judge has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated (Ebner, [8]). Counsel for the ACTU, Robert Newlinds QC, in his submissions, has elevated the claim of apprehended bias beyond a mere assertion. He identified the conduct and linked the conduct with the feared deviation. While some of the ACTU’s submissions are not at all relevant, such as that the Commissioner should excuse himself otherwise findings of the Commission will lack credibility, the ACTU appears to have satisfied the evidentiary burden required.

The “fair-minded lay observer” on seeing Commissioner Heydon accept an invitation to present at a Liberal Party function might reasonably believe that the Commissioner would not bring an impartial mind to the Royal Commission proceedings. The Royal Commission into Trade Union Corruption is inherently political. The alignment of trade unions with the Labor Party and the support the Liberal Party has publically given the Royal Commission is no secret. Such public alignment with the Liberal Party could cause the “fair-minded lay observer” to form the view the Commissioner would not bring an impartial mind to the Royal Commission. Again, the test is concerned with whether the “fair-minded” lay observer “might” form this view. The fact that Commissioner Heydon is a well-respected Judge who managed to be impartial throughout his judicial career is irrelevant. In fact, it is Commissioner Heydon’s respect for the law that will probably see Commissioner Heydon dismiss himself on the basis of apprehended bias tomorrow.