Priestley v Godwin (No 3) [2008] FCA 1529 (16 October 2008)

CONSTITUTIONAL LAW – Judicial power of the Commonwealth – validity of s 31A of the Federal Court of Australia Act 1976 (Cth) – whether an impermissible intrusion into affairs of the Judiciary – s 31A sets standard for summary dismissal – affects nature of the balancing act carried out by the Court in exercise of judicial power – does not direct the Court as to the manner and outcome of the exercise of its jurisdiction – not a bill of attainder – not a "commitment" or "prosecution"

STATUTES – s 31A of the Federal Court of Australia Act 1976 (Cth) – interaction of O 20 r 5 of the Federal Court Rules and s 31A – whether s 31A and O 20 r 5 operate to prevent the Court from receiving evidence in a summary dismissal application – nothing in s 31A or the balance of the Act to suggest that evidence cannot be admitted – other court rules allow or require evidence to be admitted on a summary dismissal application

Australian Capital Territory (Self-Government) Act 1988 (Cth)
Bill of Rights 1688
Due Process of Law Act 1354
Due Process of Law Act 1368
Federal Court of Australia Act 1976 (Cth) s 31A
Human Rights Act 2004 (ACT)
Interpretation Act 1967 (ACT) (repealed)
Judiciary Act 1903 (Cth)
Magna Carta

Federal Court Rules O 10 r 1, O 19 r 1, O 20 r 5

Bond v Barry [2008] FCAFC 115 cited
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 considered
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 cited
Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311 considered
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 cited Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 82 ALJR 454 considered
Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241 considered
J F Keir v Sparks [2008] FCA 611 cited
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60; (2008) 167 FCR 372 considered
K-Generation v Liquor Licensing Court (2007) 99 SASR 58 considered
Lodhi v Regina [2007] NSWCCA 360 applied
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 cited
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 considered
Priestley v Godwin (No 2) [2008] FCA 1453 considered
White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 cited

MICHAEL PRIESTLEY v ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER

ACD 1 OF 2008

MICHAEL PRIESTLEY V THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES AND SENATOR THE HONOURABLE ALAN BAIRD FERGUSON PRESIDENT OF THE SENATE

ACD 2 OF 2008

BENNETT J
16 OCTOBER 2008
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 1 OF 2008

BETWEEN:	MICHAEL PRIESTLEY Applicant
AND:	ANNWYN GODWIN PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER Respondent

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 2 OF 2008

BETWEEN:	MICHAEL PRIESTLEY Applicant
AND:	THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES First Respondent SENATOR THE HONOURABLE ALAN BAIRD FERGUSON PRESIDENT OF THE SENATE Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	16 OCTOBER 2008
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

2. Orders the applicant to pay the respondents’ costs of these proceedings incurred after 31 March 2008.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 1 OF 2008

AND:

ANNWYN GODWIN
PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER
Respondent

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 2 OF 2008

BETWEEN:	MICHAEL PRIESTLEY Applicant
AND:	THE HONOURABLE DAVID PETER MAXWELL HAWKER SPEAKER OF THE HOUSE OF REPRESENTATIVES First Respondent SENATOR THE HONOURABLE ALAN BAIRD FERGUSON PRESIDENT OF THE SENATE Second Respondent

JUDGE:	BENNET J
DATE:	16 OCTOBER 2008
PLACE:	SYDNEY (HEARD IN CANBERRA)

1 The applicant in these proceedings seeks orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) requiring the respondents to prepare and furnish statements of reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to decisions of the respondents. The respondents in each proceeding sought an order that the application be dismissed pursuant to s 31A of the Federal Court Act, on the basis that the application had no reasonable prospects of success.

2 The applicant challenges the constitutionality of s 31A of the Federal Court Act.

3 The proceedings were adjourned and s 78B notices were served on the Attorney-General for the Commonwealth and the Attorneys-General of the States. The constitutional question said to arise was whether s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules are invalid as being:

4 Other matters raised in the s 78B notice included a framing of the constitutional question as whether Parliament, in enacting s 31A, has ‘transgressed the limits of its legislative power conferred upon it by the Constitution’.

5 Accordingly, the central issue for determination, as raised by Mr Priestley, is whether, as he submits, s 31A of the Federal Court Act is invalid on the grounds that it constitutes an impermissible intrusion by the Legislature into the judicial process (‘the constitutional issue’).

7 The purpose of the section is described in the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) in the following terms:

8 Prior to the Migration Litigation Reform Act 2005 (Cth), the Court’s summary judgment powers were articulated in O 20 r 2 of the Federal Court Rules. In order ‘to clarify the rules for summary disposal and stay of proceedings in light of s 31A of the Federal Court of Australia Act 1976’, the Court updated O 20 so that the rules governing summary dismissal (now contained in O 20 r 5) complemented s 31A.

9 Prior to the Federal Court Amendment Rules 2007 (No. 1), O 20 r 2 of the Federal Court Rules provided:

For clarity, in this judgment all references to O 20 r 2 refer to the rule extracted above, which ceased to have effect on 24 July 2007 following the registration of the Federal Court Amendment Rules 2007 (No. 1).

11 The applicant’s submissions raise a number of matters in respect of the constitutional issue. I will deal with them in the same general categories.

12 As the respondents point out, the power to legislate in respect of the Court derives not only from Chapter III of the Constitution but also from s 51(xxxix). There is no dispute as to the general propositions put forward by the applicant to the effect that:

• the judicial power of the Commonwealth may only be conferred in accordance with the provisions of Chapter III of the Constitution which, in turn, limits the legislative power to affect the exercise of judicial power;

• the decision making power to quell a controversy and to make enforceable decisions is an exercise of judicial power; and

• a summary dismissal proceeding represents a controversy or dispute between the parties and is a class of judicial proceedings.

13 The applicant submits, and the respondents generally accept, that the central concept of judicial power is the authoritative and enforceable determination of a controversy, reached by applying relevant legal principles. Some aspects of judicial power cannot be derogated from or limited by an Act of Parliament. In particular, Parliament may not legislate to circumscribe the judicial process.

14 The applicant points to ‘the examination of evidentiary material in an affidavit’ as a feature of judicial proceedings which is an inalienable function of the Court. The applicant submits that, in general, the power to quell a controversy is a function of the Court and involves the determination, in the first instance, of whether a controversy actually exists. Such a determination, in the applicant’s view, is exclusively judicial ‘so that Parliament cannot...pass an Act to affect the purpose for which, or the manner in which, that inherent function or power is discharged’.

15 The applicant points out that superior courts have an inherent power to decide a controversy or dispute, including a controversy or dispute that is an abuse of process.

16 The applicant submits that an application for summary dismissal under s 31A(2)(b) of the Federal Court Act constitutes an abuse of process, in that it is not brought under the inherent jurisdiction or rules of the Court. He contends that s 31A directs the Court in the exercise of judicial power. Specifically, he submits, it directs the court ‘as to the manner, the legislative purpose and outcome of an examination without provision to hear and admit evidence’. He says that it is beyond the legislative competence of the Parliament so to direct the Court in the exercise of judicial power, contrary to s 71 of the Constitution.

17 The applicant’s submissions are not completely clear. They seem to raise two broad arguments:

• The power to dismiss a matter summarily is an inherent power that cannot be the subject of legislative interference.

• The standard applied by the courts in a summary dismissal proceeding in the exercise of the Court’s inherent jurisdiction involves the exercise of judicial discretion to receive evidence, which is not available under s 31A.

18 This second submission is based on an assumption that s 31A prevents the Court from receiving evidence on a summary dismissal application.

19 From the applicant’s submissions, the respondents identify the following assertions and assumptions:

• Section 31A "directs the Court as to the outcome" of a summary dismissal application.

20 I will consider each of these aspects, although they do, to a degree, overlap.

21 The applicant argues that s 31A directs the Court as to the outcome of a summary dismissal application. The basis of the argument appears to be that Parliament has replaced the ‘no reasonable cause of action’ test in the previous O 20 r 2 of the Federal Court Rules with a ‘no reasonable prospect of success’ test that operates by virtue of s 31A and O 20 r 5 (which refers to s 31A). In the applicant’s submission, this replacement of the standard for summary dismissal is invalid, because it is a direction to the Court as to the manner in which judicial power should be exercised.

22 The heart of the applicant’s argument is the allegation that s 31A impermissibly interferes with the exercise of the judicial power of the Commonwealth and directs the Court as to the outcome of a proceeding. A Commonwealth law that ‘direct[s] the courts as to the manner and outcome of the exercise of their jurisdiction’ will be invalid on the basis that it usurps the judicial power of the Commonwealth (Chu Kheng Lim v Minister for Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at 37).

23 In Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, Brennan CJ considered the validity of legislation governing practice or procedure. His Honour said (at [23]):

24 The applicant accepts that a law prescribing court practice or procedure does not direct the exercise of a judicial power and Parliament has the power to legislate to change the laws of evidence and procedure. However, the applicant argues that s 31A of the Federal Court Act represents the passing by Parliament of a law that directs the exercise of judicial power.

25 In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 82 ALJR 454 at [39], Gummow, Hayne, Heydon and Kiefel JJ said:

26 To the extent that the applicant’s argument is based upon an assumption that s 31A directs the manner and outcome of the exercise of judicial power, it is misconceived. Parliament has legislated with respect to the procedure for summary dismissal of proceedings and expanded the basis on which proceedings can be dismissed. Section 31A lays down a general test. It is for the Court to apply the test to specific cases. The Court is not expressly directed as to the outcome of any application. Even if s 31A does "tilt the balance" in favour of a particular result, that does not fundamentally alter the Court’s task.

27 In Lodhi v Regina [2007] NSWCCA 360 the NSW Court of Criminal Appeal considered the validity of certain statutory provisions under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘the NSI Act’). Under s 26(2)(b) of the NSI Act, the Attorney General issued certificates that prohibited disclosure, in criminal proceedings, of information in documents to which the defendant had sought access. Section 31 of the NSI Act empowered the Court to make orders, including orders granting access to a defendant. In making those orders, s 31(7) of the NSI Act required the Court to balance the risk of prejudice to national security against the defendant’s right to a fair trial, and any other relevant matter. Critically, s 31(8) of the NSI Act specified that the Court was to give "greatest" weight to national security. At [41], Spigelman CJ discussed the power of Parliament to change a test for the exercise of judicial power:

28 His Honour observed at [42] that the common law may also "tilt the scales" for the Court in undertaking a balancing exercise and concluded at [45] that ‘[a]lthough the provision of guidance, or an indication of weight, will affect the balancing exercise, it does not change the nature of the exercise’. The Chief Justice continued to say, at [46]:

29 Special leave to appeal to the High Court was refused. Gummow ACJ observed that the attack on the legislation must fail, on the basis of the proper construction adopted by the Court of Criminal Appeal. As the Full Court stated in Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241 at [126]:

Admission of evidence in an application under s 31A of the Federal Court Act

30 The applicant seeks to argue that, by legislating to preclude evidence from being admitted in a summary dismissal application, the Legislature has interfered with the exercise of judicial power.

• Summary disposition of cases is an exercise of judicial power, which involves, inter alia, the power to admit evidence;

• Previously, O 20 r 2 explicitly allowed a Court to hear evidence in a summary dismissal application decided on the ‘no reasonable cause of action’ test;

• The ‘no reasonable cause of action’ test has been replaced by the ‘no reasonable prospect of success’ test contained in s 31A of the Federal Court Act;

• Section 31A says nothing on the admission of evidence in a summary dismissal application;

• Section 31A is invalid, as it directs the Court as to the manner in which it should exercise judicial power in a summary dismissal application based on the ‘no reasonable prospect of success’ test;

• Section 31A interferes with the exercise of judicial power, in that s 31A of the Act and O 20 r 5 of the Rules operate to preclude evidence from being admitted in a contested summary dismissal application.

32 The applicant submits that the admission of evidence is an ‘exclusively judicial power’, along with the powers to make findings of fact, to apply the law or to exercise a discretion. In the applicant’s submission, s 31A of the Federal Court Act interferes with the Court’s power ‘to make findings of fact arising from the pleadings’. This arises because, he says, the ‘no reasonable prospect of success’ test in s 31A, which replaced the ‘no reasonable cause of action’ test in O 20 r 2 prior to the Federal Court Amendment Rules 2007 (No. 1), contains no provision explicitly allowing the Court to hear evidence in a summary dismissal matter, and thus limits the Court’s power to hear evidence in a summary dismissal application. Further, the applicant appears to argue that that the replacement of the ‘no reasonable cause of action’ test itself is impermissible, as constituting an impermissible direction as to the manner in which judicial power should be exercised.

33 Section 31A confers a power on the Court to make a decision summarily that there is no reasonable prospect that, if a trial were to take place, the claim or defence would succeed. It is not an adjudication of the merits (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at [45] per Rares J). If s 31A were to limit or restrict admissible evidence in such a way as to influence or control the manner in which the Court decided a summary dismissal application, then the provision would be incompatible with the exercise of judicial power and thus invalid (Gypsy Jokers at [108] per Kirby J; K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 at [69]–[73] per Duggan J). However, that is simply not the case.

34 There is nothing in the language of s 31A, or the balance of the Federal Court Act, which supports the contention that evidence cannot be admitted on a s 31A application. Section 31A is silent on the admission and consideration of evidence. However, O 19 r 1(2) of the Federal Court Rules requires any motion to be supported by an affidavit, while O 10 r 1(2)(a)(xiv) allows the Court to make orders regarding the giving of evidence at a hearing, both orally and by affidavit. There is nothing in the Federal Court Rules that would prevent evidence from being admitted in a contested summary dismissal application. The applicant submits that O 20 r 5 does not allow evidence to be admitted on an application under s 31A. There is nothing in that order to displace the power of the Court to receive evidence. Indeed, O 20 r 5(3) specifically provides that the Court may receive evidence on the hearing of an application. Order 19 rule 1 requires such an application to be in the form of a notice of motion supported by an affidavit.

35 While the determination of an application under s 31A does not involve a judge conducting a full trial or fact finding exercise, an application under s 31A requires the judge to exercise his or her discretion, following an assessment of the case, including the evidence. As Rares J said in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 at [48], ‘the assessment of whether there is a reasonable prospect of successfully prosecuting the proceeding must depend upon the evidence and pleading the subject of the application’.

36 It cannot be said that s 31A is invalid as a law that directs the outcome or manner of the exercise of judicial power by precluding the admission of evidence.

The terms of O 20 r 5 of the Federal Court Rules and the validity of s 31A of the Federal Court Act

37 The applicant relies upon the terms of the Federal Court Rules and amendments to those Rules in support of his argument. The applicant maintains that O 20 r 5 constitutes judicial legislation determinative of the substantive rights of the parties, which is impermissible. This is said to be because of the reference to s 31A in a note to that rule, which refers only to a prosecuting party and not to a defending party.

38 The Federal Court Rules cannot affect the constitutional validity of s 31A of the Federal Court Act. The Federal Court Rules cannot affect the validity of the Act, or of any provision of the Act. The fact that the Federal Court Rules are now complementary to s 31A is irrelevant to the validity of s 31A.

39 To the extent that the argument is based upon an allegation that Parliament has "enticed the Court" to alter its rules for summary dismissal (made in the exercise of the Court’s inherent power), there is no basis for the allegation. Subsection 31A(4) expressly preserves the Court’s inherent powers.

The "limitation to the Court’s inherent powers" allegation – Can Parliament legislate to set the standard for summary dismissal consistently with the Constitution?

40 In K-Generation at [159], Gray J summarised the general principle in the following terms:

41 In Jefferson Ford at [45], Rares J commented that, when the Court gives judgment for a party under s 31A(1) or s 31A(2) ‘it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes’. His Honour expressed the view that, by enacting s 31A, Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised and (at [57]) that it was not intended to create final, rather than interlocutory, judgments. Rather, it was intended to ‘lower the bar’ (per Rares J at [63]) or, to put it another way, to ‘impose a different and less stringent test’ (per Gordon J at [124]) for obtaining summary judgment, below the level set by the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 per Lindgren J). It was introduced ‘to strengthen "... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases"’ (Jefferson Ford at [124] per Gordon J; Boston Commercial at [45] per Rares J; citing the Second Reading Speech to the Migration Litigation Reform Bill 2005 (Cth)).

42 In Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311 the High Court considered the effect of court rules on a court’s inherent powers. The Court said (at 318):

The High Court did not suggest that rules of court that affect the inherent power of the Court are thereby invalid.

43 Prior to the enactment of s 31A, the test for summary dismissal was as set out by Barwick CJ in General Steel. Applying Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, Barwick CJ described (at 130) the balancing between competing interests that underlies summary judgment:

44 The imposition of a new standard for summary judgment has not changed the nature of the judicial decision-making process. Section 31A does not direct the Court to achieve a particular outcome, nor does it restrict the availability of evidence. The judge is left to assess the pleadings and any evidence and the likelihood of success (albeit in a predictive, rather than adjudicative sense), without the interference of the Legislature.

45 Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial (Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory (Jefferson Ford at [128]–[129] per Gordon J) or discretionary (J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one (Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" (Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established (Gypsy Jokers at [7] per Gleeson CJ).

46 If it were the case that a mandatory construction of the section led to constitutional invalidity, the construction would be preferred that gave the Court a discretion to give judgment and thus avoid invalidity (Gypsy Jokers at [11] per Gummow, Hayne, Heydon and Kiefel JJ).

47 Section 31A does not ‘purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction’ (Chu Kheng Lim at 37 per Brennan, Deane and Dawson JJ; Gypsy Jokers at [39] per Gummow, Hayne, Heydon and Kiefel JJ). It does not require or authorise the Court ‘to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power’ (Chu Kheng Lim at 27). It does not ‘direct the exercise of judicial power in finding facts, applying law or exercising an available discretion’ (Nicholas at [20] per Brennan CJ). Indeed, as the applicant points out, the giving of summary judgment is an inherent power of courts under the common law (Nicholas at [14] per Brennan CJ). Section 31A does not impair the curial function of finding facts and applying the law any more than statutory prescription of the rules of evidence, which ‘have traditionally been recognised as being an appropriate subject of statutory prescription’ (Nicholas at [23] per Brennan CJ).

48 The applicant submits that it could be said that ss 31A(1) to (3), granting the power of summary dismissal, constitute bills of attainder. He says that they are aimed at a particular class of individuals and deprive them of a right of action in the Court for the future and authorise, as a consequence of the proscribed action, the imposition of a liability. He also submits that the application of s 31A denies due process and procedural safeguards. He says that ‘the most distinguishing feature’ of the lack of due process is the fact that evidence is not admissible.

49 The applicant submits that bills of attainder are beyond the legislative power of the Commonwealth and that powers conferred on a Court by legislation may be modern forms of bills of attainder. In particular, the applicant argues that s 31A of the Federal Court Act is ad hominem legislation, as it is aimed ‘at a class of individuals identified as "prosecuting" or "defending" parties who appear before a court’. Accordingly, he says, ss 31A(1)–(3) constitute a bill of attainder as ‘they are aimed at a particular class of individuals and deprive them of a right of action in the court for the future, and authorise, as a consequence of the proscribed action, the imposition of a liability’.

50 In short, in the applicant’s submission, s 31A is beyond the legislative competence of the Parliament, as it interferes with the judicial process and is a bill of attainder "because [it is] a specific and modern form of disguised legislative punishment’.

51 Section 31A of the Federal Court Act is not a bill of attainder. It provides for the judicial determination of issues with appropriate safeguards. It applies to all litigants equally; it is not ad hominem legislation; it is not directed at a class of persons. There is no denial of due process and the section does not impose a punishment.

52 The applicant contends that, if s 31A operates in its terms to deny fundamental rights or principles, it should be either read down or declared unconstitutional as interfering with those rights or principles guaranteed by the Constitution and the laws predating it, such as Magna Carta.

53 The applicant submits that "due process", as guaranteed by Art 29 of the Magna Carta, the Due Process of Law Act 1354 and the Due Process of Law Act 1368, is part of the law of the Australian Capital Territory (‘the ACT’) by virtue of s 34(4) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) and s 65 of the Interpretation Act 1967 (ACT) (repealed). The applicant further submits that ss 7 and 24 of the Human Rights Act 2004 (ACT) (‘the Human Rights Act’) reaffirm the guarantees contained in the Magna Carta and the Due Process of Law Acts and that s 31A infringes the inalienable guarantees granted by those instruments.

54 The Federal Court Act is a Commonwealth law. The substantive proceedings concern Commonwealth laws. The proceedings are in the federal jurisdiction. As the respondent submitted, the only State and Territory laws that apply in the proceedings ‘are those State and Territory laws that are not inconsistent with Commonwealth laws, and that are picked up by the Judiciary Act 1903’ (ss 64, 79 and 80 Judiciary Act 1903 (Cth)).

56 The applicant has not shown why, if he says that laws of the ACT are inconsistent with s 31A of the Federal Court Act, those laws apply and why they have been "picked up" by s 79 of the Judiciary Act 1903 (Cth).

57 In any event, his underlying premise is that s 31A ‘infringes the inalienable guarantees asserted in’ Magna Carta and those other Acts which provided statutory protection to procedural safeguards and the rule of law. In particular, he states that s 31A denies the right to appeal and legal process. That is simply not the case: Jefferson Ford at [71] per Rares J, [191] per Gordon J; ss 24(1) & (1A) Federal Court Act.

58 The applicant refers to various Imperial Acts. As Brennan CJ observed in Nicholas at [23] by reference to the Evidence Act 1843 (Imp) 6 &7 Vict c 85, ‘it would not have occurred to the Imperial Parliament that a legislative power to prescribe rules of evidence might be regarded as a usurpation of judicial power’. The same applies to setting a test for summary disposal.

ARTICLE 5 OF THE BILL OF RIGHTS 1688 AND SECTION 31A OF THE FEDERAL COURT ACT

59 The applicant submits that ‘[t]he Bill of Rights is a law of the Australian Capital Territory’ and grants the right to petition ‘without suffering or enduring "commitments and prosecutions"’ (Art 5 of the Bill of Rights 1688). The applicant submits that s 31A of the Federal Court Act is in breach of Art 5, as the power to grant summary judgment constitutes a commitment or prosecution against petitioners (plaintiffs) against the Crown.

60 The Bill of Rights 1688 is not relevant. Section 31A is not a "commitment" or "prosecution".

STATUS OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS IN AUSTRALIAN AND AUSTRALIAN CAPITAL TERRITORY LAW

61 The applicant submits that s 21(1) of the Human Rights Act incorporates Art 14.1 of the International Covenant on Civil and Political Rights (‘ICCPR’). The applicant further submits that Australia’s ratification of the ICCPR gives rise to a legitimate expectation that an application for relief will be decided by an independent and impartial tribunal.

63 The applicant relies on the use that may be made of international treaties that have been ratified in the construction of legislation that is ambiguous (Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J). However, there is no demonstrated ambiguity in s 31A and nothing in that section to which Art 14.1 of the ICCPR applies. To the extent that the applicant raises the reference in Art 14.1 to an independent and impartial tribunal, if that is in the constitutional sense, it is dealt with elsewhere in these reasons and in Priestley.

64 The applicant argues that s 31A of the Federal Court Act is invalid on the grounds that it constitutes an impermissible intrusion by the Legislature into the judicial process. The main point of the applicant’s submissions is that s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules preclude evidence from being admitted in a contested summary dismissal application, and that s 31A directs the Court as to the outcome of that application. There is nothing in the Federal Court Act or the Federal Court Rules that prevents evidence from being admitted in a summary dismissal application.

65 While s 31A of the Federal Court Act does ‘lower the bar’ for summary dismissal, replacing the previous test, that is not inconsistent with judicial decision-making. Section 31A does not interfere with the process of giving weight to any evidence admitted, nor does it direct the outcome to be arrived at in any particular cases.

66 The applicant has not established the invalidity of s 31A of the Federal Court Act or the invalidity of O 20 r 5 of the Federal Court Rules.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.


Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	16 July 2008

Date of Judgment:	16 October 2008