Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119; (1997) 142 ALR 397; (1997) 71 ALJR 430 (26 February 1997)

HIGH COURT OF AUSTRALIA

BRENNAN CJ,

DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ

RODNEY CROOME & ANOR PLAINTIFFS

AND

THE STATE OF TASMANIA DEFENDANT

ORDER

Defendant's summons dismissed with costs including reserved costs.

26 February 1997

Representation

A H Goldberg QC with C M Caleo for the plaintiffs (instructed by Brookman Tilley)

W C R Bale QC with M M G Miller for the defendant (instructed by Director of Public Prosecutions (Tasmania))

Interveners

G Griffith QC with H C Burmester and M A Perry for the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

D Graham QC with P J Hanks for the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Rodney Croome & Anor v The State of Tasmania

Constitutional law - Standing - Plaintiffs seeking declaration of inconsistency between a law of a State and a law of the Commonwealth - Application to strike out for want of jurisdiction - Whether plaintiffs' claim a "matter" for purposes of s 76(i) of the Constitution and s 30(a) of the Judiciary Act 1903 (Cth) - Whether application for declaration was divorced from any attempt to administer the allegedly inconsistent law - Whether plaintiffs have sufficient interest to bring action.

Constitution, ss 76(i), 109.

Judiciary Act 1903 (Cth), s 30(a).

BRENNAN CJ, DAWSON AND TOOHEY JJ. The writ issued by the plaintiffs (the present respondents) against the State of Tasmania (the applicant) was accompanied by a statement of claim in which the plaintiffs plead, inter alia, that -

"7. Each of the plaintiffs has had sexual relations (including sexual intercourse) with each other, and intends to continue to have, sexual relations (including sexual intercourse) with male persons."

The conduct referred to is said to be proscribed by sections 122(a) and (c) and 123 of the Criminal Code (Tas) ("the Code"). Those provisions read as follows:

"122. Any person who -

(a) has sexual intercourse with any person against the order of nature;

(b) ...

(c) consents to a male person having sexual intercourse with him or her against the order of nature,

is guilty of a crime.

Charge: Unnatural sexual intercourse."

"123. Any male person who, whether in public or private, commits any indecent assault upon, or other act of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime.

Charge: Indecent practice between male persons."

The plaintiffs seek declarations that ss 122(a) and (c) and 123 of the Code are inconsistent with the provisions of s 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) and, to the extent of the inconsistency, are invalid by force of s 109 of the Constitution. Section 4 of the Commonwealth Act provides:

" (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.[1]

(2) For the purposes of this section, an adult is a person who is 18 years old or more."

The statement of claim pleads that each of the plaintiffs is a male person over 18 years of age.

The State of Tasmania was given leave to enter a conditional appearance on condition that it take proceedings within 14 days to set aside the writ. It applied by summons for orders that:

"1. The writ and statement of claim in this action be set aside for want of jurisdiction on the ground that they do not give rise to a 'matter' within the meaning of Section 76 of the Constitution and therefore do not attract the provisions of the Judiciary Act 1903.

Alternatively, that:

2. The proceedings be permanently stayed on the grounds that:

(i) the proceedings are an abuse of the process of the Court in that they seek to obtain the opinion of the Court without the right or duty of any body or person being involved; and

(ii) the plaintiffs do not have a special interest in the subject matter of the action sufficient to support locus standi to sue for a declaration".

The application instituted by the summons was referred to the Full Court for determination. Ground 2(ii) was not persisted in and the summons was amended by deleting that ground. The Solicitor-General for Tasmania abandons any argument based on the plaintiffs' want of standing but nevertheless submits that, as no proceedings have been brought or are threatened against the plaintiffs in respect of the conduct pleaded in par 7 of the statement of claim, there is no "matter" within the meaning of that term in s 76 of the Constitution and s 30 of the Judiciary Act 1903 (Cth) which can be judicially determined in proceedings between the plaintiffs and the defendant State. If that submission be well founded, there can be no federal jurisdiction to entertain the action commenced by the plaintiffs[2].

A "matter" must be distinguished from the action or judicial proceeding which is commenced in order to obtain a determination of a controversy between the parties[3]. The "matter" is not the proceeding but the subject of the controversy which is amenable to judicial determination in the proceeding[4]. Such a controversy has particular characteristics. In In re Judiciary and Navigation Acts[5], the majority of the Court said:

"In our opinion there can be no matter within the meaning of [s 76] unless there is some immediate right, duty or liability to be established by the determination of the Court. ... But [the Legislature] cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law."

Speaking of this passage, the majority in Mellifont v Attorney-General (Q)[6] said it contained "two critical concepts":

"One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or dissociated from any attempt to administer it."

The Solicitor-General for Tasmania submits that the plaintiffs' action does not seek to establish any immediate right, duty or liability nor is the Court called upon to administer the relevant law. However, the question of law that the plaintiffs seek to raise is not whether they or either of them has engaged in conduct proscribed by s 122(a) or (c) or by s 123 of the Code; nor whether the plaintiffs should be prosecuted, convicted or punished for their conduct. The question is whether those provisions operate and, since the enactment of s 4 of the Human Rights (Sexual Conduct) Act, have operated in Tasmania. The Solicitor-General's submission that no prosecution under the Code is pending or threatened does not touch that question.

It is a long-standing doctrine that a "matter" may consist of a controversy between a person who has a sufficient interest in the subject and who asserts that a purported law is invalid and the polity whose law it purports to be. In Toowoomba Foundry Pty Ltd v The Commonwealth, Latham CJ said[7]:

" The plaintiff has relied upon the practice of the Court in allowing the constitutional validity of statutes and regulations and orders made thereunder to be challenged by interested persons in actions claiming only declarations of invalidity: See, eg, Attorney-General for NSW v Brewery Employés Union of NSW[8]; Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth[9]. More recently, see Victorian Chamber of Manufactures v The Commonwealth (Prices Regulations)[10] and Victorian Chamber of Manufactures v The Commonwealth (Women's Employment Regulations)[11]. It is now, I think, too late to contend that a person who is, or in the immediate future probably will be, affected in his person or property by Commonwealth legislation alleged to be unconstitutional has not a cause of action in this Court for a declaration that the legislation is invalid."

It is a misconception of the principle in In re Judiciary and Navigation Act to suggest that, in proceedings for a declaration of invalidity of an impugned law, no law is administered unless the executive government has acted to enforce the impugned law. The law that is being administered in such proceedings is not the impugned law but the constitutional or administrative law which determines the validity or invalidity of the impugned law. Thus Gavan Duffy, Rich and Starke JJ in James v South Australia[12] identified a "right, title, privilege or immunity" claimed under the Constitution as the criterion of a matter arising under the Constitution or involving its interpretation. A declaration of validity or invalidity of an impugned law administers the law governing the controversy about the impugned law. If it were otherwise, there would be no jurisdiction in this Court to determine an action by the Attorney-General of a State for a declaration that a challenged Commonwealth law is invalid. Yet an action of that kind is the classical vehicle for exercising this Court's constitutional jurisdiction.

However, such a justiciable controversy does not arise unless the person who seeks to challenge the validity of the law has a sufficient interest to do so. In British Medical Association v The Commonwealth[13], Dixon J doubted whether the plaintiff Association had "a sufficient material interest, which would be prejudiced by the operation of the [impugned] Act" - parts of the Pharmaceutical Benefits Act 1947-1949 (Cth) and the Pharmaceutical Benefits Regulations - "to give it a title to maintain the suit" for a declaration of invalidity. But his Honour held that the other plaintiffs in the action, who were practitioners of medicine or surgery, possessed the necessary interest. The "sufficient material interest" which, being prejudicially affected by a law, founds a cause of action to seek a declaration of invalidity of a law, is not confined to professional or trading interests. In Pharmaceutical Society of Great Britain v Dickson[14] Lord Upjohn said:

"This principle is not confined to trade. A person whose freedom of action is challenged can always come to the court to have his rights and position clarified, subject always, of course, to the right of the court in exercise of its judicial discretion to refuse relief in the circumstances of the case."

A person with a sufficient interest to raise a justiciable controversy as to the validity of a law is regarded as having or claiming a right to a declaration and that right satisfies the requirement of some "right, duty or liability to be established by the determination of the Court".

No distinction in principle can be drawn between a controversy as to the validity of a law on the ground that it exceeds legislative power and a controversy as to the operation of a State law which is said to be inconsistent with a law of the Commonwealth and, to that extent, "invalid" by reason of s 109 of the Constitution. In both cases, invalidity releases a plaintiff from a liability or obligation which the impugned law purports to impose.

We do not wish now to assent to the broad proposition that any person who desires or intends to act in contravention of a law has, by reason merely of that desire or intention, a cause of action to seek a declaration of invalidity of the law. It may be that the curial discretion to refuse relief warrants acceptance of that broad proposition but, in the present case, it is not necessary to decide the question.

It is conceded that the plaintiffs have standing to bring the action seeking declarations of invalidity of the impugned provisions of the Code. That concession, if rightly made, establishes that they have a sufficient interest to support an action for a declaration that the impugned provisions of the Code are "invalid" by reason of s 109 of the Constitution. In our opinion, the concession of standing was rightly made not by reason of their intention to engage in conduct of the kind pleaded in par 7 (though that intention may be relevant to the exercise of a discretion to grant or refuse a declaration) but by reason of their having engaged in such conduct.

The plaintiffs plead that they have engaged in conduct which, if the impugned provisions of the Code were and are operative, renders them liable to prosecution, conviction and punishment. The fact that the Director of Public Prosecutions does not propose to prosecute does not remove that liability. Liability to prosecution under the impugned provisions of the Code will be established if the Court were to determine the action against the plaintiffs even if liability to conviction and punishment under those provisions cannot be determined by civil process. Controversy as to the operative effect of the impugned provisions of the Code will be settled and binding on the parties[15]. The plaintiffs have a sufficient interest to support an action for a declaration of s 109 invalidity.

The plaintiffs seek four declarations set out in the prayer in the statement of claim. The declaration claimed in par A was not the subject of submissions and no further reference may be made to it. The declarations claimed in pars B, C and D seek to establish the "invalidity" under s 109 of the Constitution of the impugned provisions of the Criminal Code. As the controversy between the plaintiffs and the defendant State as to the validity of the impugned provisions is a "matter" which the Court has jurisdiction to determine, the appropriate order is that the defendant's summons be dismissed and that the defendant pay the plaintiffs' costs including reserved costs.

GAUDRON, McHUGH AND GUMMOW JJ.

The legislation

Sections 122 and 123 of the Criminal Code (Tas) ("the Code")[16] state:

"122. Any person who -

(a) has sexual intercourse with any person against the order of nature;

(b) has sexual intercourse with an animal; or

(c) consents to a male person having sexual intercourse with him or her against the order of nature,

is guilty of a crime.

Charge: Unnatural sexual intercourse.

123. Any male person who, whether in public or private, commits any indecent assault upon, or other act of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime.

Charge: Indecent practice between male persons."

Section 4 of the Human Rights (Sexual Conduct) Act 1994 (Cth) ("the Act") provides:

" (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

(2) For the purposes of this section, an adult is a person who is 18 years old or more."

The text of Art 17 of the International Covenant on Civil and Political Rights ("the Covenant") is set out in Sched 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The text is as follows:

"1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks."

The litigation

By action commenced in the original jurisdiction of this Court, the plaintiffs seek declaratory relief against the State of Tasmania ("the State"). They allege in their statement of claim that each of them has had sexual relations (including sexual intercourse) with each other, and intends to continue to have sexual relations (including sexual intercourse) with male persons (par 7), and that their conduct constitutes sexual conduct involving only consenting adults acting in private within the meaning of s 4 of the Act (par 9). The declaratory relief sought includes a declaration that, in so far as they apply to the conduct of the plaintiffs referred to in par 7, s 122(a) and (c) and s 123 of the Code subject the plaintiffs to arbitrary interference with their privacy. A further declaration is sought that those provisions are invalid, to the extent of their inconsistency with the Act.

Section 109 of the Constitution operates of its own force to render invalid, to the extent of the inconsistency, the relevant law of a State. Reliance by the plaintiffs upon the operation of s 109 is at the heart of the matter in respect of which they invoke the original jurisdiction of this Court. The plaintiffs contend that, from the commencement of the Act on 19 December 1994[17], s 122(a) and (c) and s 123 of the Code have been invalid to the extent of their inconsistency with s 4 of the Act. They seek to establish that this is so by adjudication of this Court.

The plaintiffs stress the importance of s 109 not only in adjusting the relations between the Parliament of the Commonwealth and those of the States, but also for the citizen upon whom duties and liabilities are imposed by laws made by those bodies. In University of Wollongong v Metwally[18], Gibbs CJ said:

"Section 109 deals with 'a matter of prime importance' in the constitutional framework (see Butler v Attorney-General (Vict)[19]), namely the effect of an inconsistency between the enactments of two legislatures both of which operate in the same territory. Its provisions are not only critical in adjusting the relations between the legislatures of the Commonwealth and the States, but of great importance for the ordinary citizen, who is entitled to know which of two inconsistent laws he is required to observe."

Jurisdiction

Section 76(i) of the Constitution empowers the Parliament to make laws conferring jurisdiction on the High Court in any matter "[a]rising under this Constitution, or involving its interpretation". The Parliament has done so. Section 30(a) of the Judiciary Act 1903 (Cth) ("the Judiciary Act") states:

"30. In addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction:

(a) in all matters arising under the Constitution or involving its interpretation".

In the exercise of its original jurisdiction, the High Court has power to grant all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter[20].

It is s 76(i) of the Constitution and s 30(a) of the Judiciary Act upon which the plaintiffs rely to found the jurisdiction of this Court in the present action. No doubt the Act itself is a law made by the Parliament and its operation is crucial to the plaintiffs' case. However, there has been no implementation of s 76(ii) of the Constitution by a general conferral of jurisdiction on this Court, with respect to matters arising under any law made by the Parliament[21]. Nor does the Act itself contain a provision conferring jurisdiction with respect to matters arising under it.

Accordingly, questions of standing which arise here are directed to what is required of a plaintiff in a matter arising under the Constitution or involving its interpretation. The distinction between s 76(i) and s 76(ii) may not lack significance. Further, the submissions for the Attorney-General for the Commonwealth, who intervened in support of the plaintiffs, stressed that the requisites of standing may not necessarily be the same for each of those heads of federal jurisdiction where (unlike, for example, s 75(iv)) the ambit of the matter is not fixed with reference to the identity of the plaintiff.

The strike-out application

By order of the Chief Justice, there has been referred for determination of the Full Court pursuant to s 18 of the Judiciary Act an application by the State instituted by summons. In the form in which the summons was amended at the hearing before the Full Court, the State seeks orders in the alternative. The first order is one setting aside the writ and statement of claim "for want of jurisdiction" on the ground that they do not give rise to a "matter" within the meaning of s 76 of the Constitution and therefore do not attract the operation of the Judiciary Act. The second order now sought is that the proceeding be permanently stayed as an abuse of process of the court. The abuse of process is said to arise because it is sought in the proceeding "to obtain the opinion of the Court without the right or duty of any body or person being involved".

The plaintiffs resist the making of these orders. Success in doing so would not carry with it success for the plaintiffs in their action. Rather, it would permit the case to go ahead for final disposition.

Upon a summons, evidence may be given by affidavit[22]. The affidavits of the plaintiffs disclose that both were born in Tasmania in 1964 and have lived there throughout their lives. To date neither has been prosecuted under s 122 or s 123 of the Code. The evidence of the Director of Public Prosecutions for the State ("the DPP") is that he is not aware of any current investigations into alleged breaches of the Code by either plaintiff. In September 1994 the DPP was called upon to consider whether a prosecution should be laid against the plaintiffs and the DPP determined, in October 1994, not to prosecute. The reasons of the DPP for that decision included his opinion that a prosecution would have been "counter-productive" as it would have been perceived as a "manufactured" case which had been "introduced into the criminal justice system to create a showcase trial". Had there been a prosecution and conviction, the DPP would not have sought a custodial penalty from the court. He adds in his affidavit evidence:

"The conduct in question was in private and there was no risk of any member of the community observing it. Both [the plaintiffs] are mature adults."

In his affidavit, the first plaintiff refers to public controversies in Tasmania concerning the retention of ss 122 and 123 of the Code and to his involvement in those controversies. He continues:

"I am obliged to live in a situation where there is a law on the statute book which criminalises my sexual relationships with my partners and I have to live in a state of apprehension that either I may be prosecuted in the future or that I am regarded as a criminal by the community in Tasmania because I am a professed homosexual and it is a matter of public record that I have broken the law and will continue to do so."

The evidence of the second plaintiff is that he has lived since 1986 with the concern that he might be arrested by the police and prosecuted for his sexual activities. He refers to a standard form of residential tenancy agreement, executed by him in 1992. This contained a condition obliging the tenant not to use the premises or permit them to be used for any illegal purposes. However, the second plaintiff says that he did not observe this provision.

"Matter" and "standing"

The State no longer seeks a stay on the ground that the plaintiffs lack a special interest in the subject-matter of the action which is sufficient to support their standing to sue for a declaration. It appears that the State took this step to amend the summons on the footing that it regarded the issue of standing as one distinct from the alleged absence of a "matter" within the meaning of s 76 of the Constitution. The Solicitor-General for the State expressed the distinction he sought to make by submitting that "firstly, you have got to have a matter and then once you have a matter ... the issue of standing to contest the matter arises".

During the course of argument it became apparent that the attempted severance in this case between questions going to the standing of the plaintiffs and those directed to the constitutional requirement of the exercise of federal jurisdiction with respect to a "matter" was conceptually awkward, if not impossible.

In Davis v The Commonwealth[23], Gibbs CJ had before him a strike-out application in an action in which the plaintiffs sought declarations that certain provisions of the Australian Bicentennial Authority Act 1980 (Cth) were invalid. The Chief Justice described[24] as "analogous" the questions of standing to bring an action challenging the validity of an Act of the Parliament and of the sufficiency of an interest to support an action to prevent the violation of a public right or to enforce the performance of a public duty. That this is so is illustrated by the joint judgment in Ainsworth v Criminal Justice Commission[25]. The Court was dealing not with federal jurisdiction but with the inherent power of superior courts to grant declaratory relief. However, In re Judiciary and Navigation Acts[26] was cited for the proposition that declaratory relief must be directed to the determination of legal controversies, not to answering abstract or hypothetical questions.

Where the issue is whether federal jurisdiction has been invoked with respect to a "matter", questions of "standing" are subsumed within that issue. The submission made in the present case, to the effect that a proceeding in which a citizen seeks a declaration of invalidity of a law of a State, by reason of the operation of the Constitution, is liable to be struck out unless there is attempted enforcement of the State law against the citizen, indicates the interdependence of the notions of "standing" and of "matter".

That view accords with the doctrine of the Supreme Court of the United States with respect to the identification in Art III of the Constitution of the United States of judicial power with "cases" and "controversies". In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd[27], Mason J described the formulation of "matter" in In re Judiciary and Navigation Acts as not departing from the American concept of "cases" and "controversies"[28].

In FW/PBS, Inc v Dallas[29], standing was said to be perhaps the most important of the jurisdictional doctrines affecting the scope of the judicial power of the United States. Subsequently, in delivering the Opinion of the Court in Lujan v Defenders of Wildlife[30], Scalia J spoke of the "core component of standing" as "an essential and unchanging part of the case-or-controversy requirement of Article III"[31].

Accordingly, in the course of reasons, it will be necessary to advert to issues perhaps better sub-classified as going to standing, when dealing with those heads of the summons which the State still presses.

"Administration of the law"

Central to the submissions for the State is the interpretation placed by the Solicitor-General upon a passage in the joint judgment of five members of the Court in In re Judiciary and Navigation Acts. The passage is said to support the proposition that there can be no "matter", for lack of the necessary right or duty of any body or person, where, as here, the plaintiffs assert the invalidity of the law of a State, by reason of the operation of s 109 of the Constitution, and that assertion is made independently of, and divorced from, any attempt by the Executive Government to "administer" that law. The submission continues that in the present situation, where the State law imposes a norm of conduct attended by criminal sanctions, nothing short of Executive invocation of the legal process by such a step as the issue of a warrant or summons or the filing of an indictment will give rise to a "matter". The Solicitor-General accepts that it is open to an Attorney-General, whether of a State or of the Commonwealth, to seek declaratory relief in this Court as to the validity of the laws of the other polity. Nevertheless, he submits that there is no "matter" which may be instituted by a citizen to challenge the same issue, unless the rights, duties or liabilities of that citizen are in issue in litigation which is at least pending in the above sense.

The passage from In re Judiciary and Navigation Acts upon which the State relies is as follows[32]:

"[W]e do not think that the word 'matter' in s 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. ... [A] matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. The adjudication of the Court may be sought in proceedings inter partes or ex parte, or, if Courts had the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics. But we can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved." (emphasis added)

The final sentence of the above passage directs attention to the particular provisions of the Judiciary Act with which the Court was concerned. The Governor-General in Council, acting in pursuance of Pt XII of the Judiciary Act, had referred to the Court a question as to the validity of certain sections of the Navigation Act 1912-1920 (Cth) which had been enacted but not yet proclaimed. Part XII (ss 88-94) had been added by s 3 of the Judiciary Act 1910 (Cth)[33]. Sections 88 and 93 provided:

"88. Whenever the Governor-General refers to the High Court for hearing and determination any question of law as to the validity of any Act or enactment of the Parliament the High Court shall have jurisdiction to hear and determine the matter.

...

93. The determination of the Court upon the matter shall be final and conclusive and not subject to any appeal."

The purported legislative foundation provided by these provisions may be compared with the foundation which supported the later action against the Commonwealth by the Victorian Attorney-General in which he claimed declarations that certain provisions in Pt VI of the Marriage Act 1961 (Cth) were invalid[34]. Part VI was proclaimed to commence on 1 September 1963, more than a year after the delivery of judgment by this Court. The action comprised a matter in which the Commonwealth was a party (Constitution, s 75(iii)) and a matter arising under the Constitution or involving its interpretation (Constitution, s 76(i); Judiciary Act, s 30(a)).

The passage from the joint judgment in In re Judiciary and Navigation Acts upon which the State relies has been referred to in this Court on a number of occasions. Particular reference was made to the joint judgment of five members of the Court in Mellifont v Attorney-General (Q)[35]. The issue there was whether the answers of the Queensland Court of Criminal Appeal to questions which had arisen at trial and had been referred to it by the Attorney-General under s 669A of the Criminal Code (Q), answered the description of a judgment, decree or order within the meaning of s 73 of the Constitution. In the course of deciding that s 73 did apply, reference was made by their Honours[36] to the statement in In re Judiciary and Navigation Acts[37] that the Parliament of the Commonwealth "cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law". Mason CJ, Deane, Dawson, Gaudron and McHugh JJ went on to hold that answers given to questions reserved in the course of proceedings in a "matter" pending in a court do not constitute an advisory opinion or abstract declaration of the kind dealt with in In re Judiciary and Navigation Acts[38].

In his judgment in Mellifont[39], Brennan J dealt more directly with the point of present concern. His Honour set out the passage from In re Judiciary and Navigation Acts upon which the State now relies and continued[40]:

"As I read these passages, they deny that a court, exercising jurisdiction in a matter, is authorized to make declarations of the law 'unless there is some immediate right, duty or liability to be established by the determination of the Court'. It is only in applying the law in the determination of a 'matter' that the law is judicially administered. In Fencott v Muller[41], a majority of this Court (Mason, Murphy, Brennan and Deane JJ) used the term 'judicial administration of the federal law' to mean the correct application of federal law in resolving a particular claim."

It is here that there is to be found the plainest answer to the submission of the State in the present case.

There is nothing in the references in In re Judiciary and Navigation Acts to the administration of the law which provides any foundation for the submissions of the State in this case. The administration referred to is that of the courts in dispensing justice. The concern of the Court in In re Judiciary and Navigation Acts was to establish that Ch III is an exhaustive statement of that judicial power which may be conferred for the exercise of federal jurisdiction. A determination of questions of law on a reference by the Executive Government to the High Court could only be made, if at all, in exercise of the judicial power of the Commonwealth. A determination of such questions, if they do not arise in a legal proceeding where there is some immediate right, duty or liability to be established by the determination of the Court, does not fall within that judicial power which may be exercised under Ch III. This accords with the analysis given by Jacobs J in The Commonwealth v Queensland[42] of the reasoning in In re Judiciary and Navigation Acts.

Their Honours in In re Judiciary and Navigation Acts are not to be taken as lending support to the notion that, where the law of a State imposes a duty upon the citizen attended by liability to prosecution and punishment under the criminal law, and the citizen asserts that, by operation of s 109 of the Constitution, the law of the State is invalid, there can be no immediate right, duty or liability to be established by determination of this Court, in an action for declaratory relief by the citizen against the State, unless the Executive Government of the State has, at least, invoked legal process against the particular citizen to enforce the criminal law.

Declaratory relief

In Toowoomba Foundry Pty Ltd v The Commonwealth[43], in which the plaintiff sought a declaration that a provision of the Women's Employment Regulations was beyond the powers of the Parliament of the Commonwealth or, alternatively, those of the Governor-General under the Women's Employment Act 1942 (Cth), Latham CJ said:

"The plaintiff has relied upon the practice of the Court in allowing the constitutional validity of statutes and regulations and orders made thereunder to be challenged by interested persons in actions claiming only declarations of invalidity: See, eg, Attorney-General for NSW v Brewery Employés Union of NSW[44]; Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth[45]. More recently, see Victorian Chamber of Manufactures v The Commonwealth (Prices Regulations)[46] and Victorian Chamber of Manufactures v The Commonwealth (Women's Employment Regulations)[47]. It is now, I think, too late to contend that a person who is, or in the immediate future probably will be, affected in his person or property by Commonwealth legislation alleged to be unconstitutional has not a cause of action in this Court for a declaration that the legislation is invalid."

The Solicitor-General sought to distinguish the authorities referred to by Latham CJ as applicable only to proceedings in which the attack was on the validity of laws of the Commonwealth. There is no reason in logic for such a confinement of those authorities to exclude a proceeding in which declaratory relief is sought as to the invalidity of the law of a State. Particularly is this so where the plaintiff is a citizen seeking to establish that s 109 of the Constitution has operated relevantly to remove the requirement of observance of the State criminal law. In the present case, the provisions of the Code affect the plaintiffs in their person by imposing duties which require the observance of particular norms of conduct and attach liability to prosecution and subsequent punishment for disobedience.

Observations by Dixon J in British Medical Association v The Commonwealth[48] are in point. The issue there was whether s 7A of the Pharmaceutical Benefits Act 1947-1949 (Cth) was invalid as imposing a form of civil conscription within the meaning of s 51(xxiiiA) of the Constitution. Section 7A provided that a medical practitioner was not to write prescriptions otherwise than on a prescription form supplied by the Commonwealth. A penalty for non-compliance was imposed. The first plaintiff was a body corporate, the Federal Council of the British Medical Association in Australia, one of the objects of which was to advance the general interests of the medical profession. Dixon J[49] doubted if a corporate body had a title to maintain the suit, it lacking a sufficient material interest which would be prejudiced by the operation of the statute. However, his Honour continued:

"But the point is of no importance, because there are six other plaintiffs all of whom practise medicine or surgery. The interest which they have is enough to enable them to complain, if the legislation is invalid as a whole or if severable provisions are invalid which would directly affect the practice of medicine or surgery."

There was no suggestion that it was necessary for the plaintiffs to show that there already had been set in motion against them the punitive provisions of the legislation. It was significant enough that the plaintiffs "faced possible criminal prosecution"[50].

Conclusion

The conduct by the plaintiffs of their personal lives in significant respects is overshadowed by the presence of ss 122 and 123 of the Code. The policy of the law which animates the operation of the Australian legal system includes the encouragement, and indeed the requirement, of observance of the law. That particularly is so of the norms of conduct required or forbidden by the criminal law. Breach thereof is attended by risk of prosecution and punishment and also may have consequences for the broader civil legal order as it applies to the individual. Thus, doctrines turning upon illegality play a significant part in the operation of the law of tort and contract. The covenant in the lease taken by the second plaintiff is an example, no doubt repeated in the daily lives of many citizens.

The Constitution may deny to the law in question, wholly or in part, validity as an operative part of the legal order. Section 109 may achieve that result in respect of the law of a State. Where it is established, in the exercise of the judicial power of the Commonwealth, that s 109 does so operate, there is met by the Constitution a call of great importance to the ordinary citizen. Such a person is, to continue with terms used by Gibbs CJ[51], "entitled to know" whether there continues a requirement to observe that State law.

In the circumstances of this case, the claim to declaratory relief is not to be denied at the threshold on the ground that relief is sought prematurely and to establish the legal character of a state of affairs not yet come to pass. If s 109 operates here, as the plaintiffs seek to establish at the trial or other final disposition of their action, it presently operates upon the provisions of the Code and has done so since the commencement of the Act.

Moreover, as we have sought to indicate, the plaintiffs have a "real interest" and do not seek to raise a question which is abstract or hypothetical[52]. The State, by the DPP, has not prosecuted but, even if it were open for it to do so, it has not disabled itself from prosecuting hereafter. The DPP does not take the position that no offences have been committed nor that the offences do not continue.

The application by the State which has been referred into the Full Court should be dismissed with costs.

[1] Article 17 appears in Sched 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

[2] The Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298 at 325.

[3] Fencott v Muller (1983) 152 CLR 570 at 608.

[4] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265-266; Fencott v Muller (1983) 152 CLR 570 at 591, 603; Crouch v Commissioner for Railways (Q) [1985] HCA 69; (1985) 159 CLR 22 at 37.

[5] [1921] HCA 20; (1921) 29 CLR 257 at 265-266. See also Fencott v Muller (1983) 152 CLR 570 at 591, 603; Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289 at 303, 316, 321-322; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582.

[6] [1991] HCA 53; (1991) 173 CLR 289 at 303.

[7] [1945] HCA 15; (1945) 71 CLR 545 at 570; see also at 584 per Williams J.

[8] [1908] HCA 94; (1908) 6 CLR 469.

[9] [1912] HCA 94; (1912) 15 CLR 182.

[10] [1943] HCA 19; (1943) 67 CLR 335.

[11] [1943] HCA 21; (1943) 67 CLR 347.

[12] [1927] HCA 32; (1927) 40 CLR 1 at 40.

[13] [1949] HCA 44; (1949) 79 CLR 201 at 257; see also Victorian Chamber of Manufactures v The Commonwealth (Women's Employment Regulations) [1943] HCA 21; (1943) 67 CLR 347 at 375, 382.

[14] [1970] AC 403 at 433 cited with approval in Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353 at 381 and in Re Tooth & Co Ltd [1978] FCA 9; (1978) 31 FLR 314 at 331; [1978] FCA 10; 19 ALR 191 at 206-207.

[15] Re Tooth & Co Ltd [1978] FCA 9; (1978) 31 FLR 314 at 331; [1978] FCA 10; 19 ALR 191 at 207.

.

[16] The Code is set out in Sched 1 to the Criminal Code Act 1924 (Tas).

[17] The date of the Royal Assent. Section 2 of the Act provided for its commencement on the day on which it received the Royal Assent.

[18] [1984] HCA 74; (1984) 158 CLR 447 at 457-458. See also at 476-477 per Deane J.

[19] [1961] HCA 32; (1961) 106 CLR 268 at 282.

[20] Judiciary Act, s 32.

[21] cf s 39 of the Judiciary Act as to the courts of the States.

[22] High Court Rules, O 39 r 1.

[23] [1986] HCA 66; (1986) 61 ALJR 32; 68 ALR 18.

[24] [1986] HCA 66; (1986) 61 ALJR 32 at 35; [1986] HCA 66; 68 ALR 18 at 23.

[25] [1992] HCA 10; (1992) 175 CLR 564 at 581-582.

[26] [1921] HCA 20; (1921) 29 CLR 257.

[27] (1981) 148 CLR 457 at 508.

[28] See also Fencott v Muller (1983) 152 CLR 570 at 607-608.

[29] [1990] USSC 3; (1990) 493 US 215 at 231. See also Singleton v Wulff [1976] USSC 161; (1976) 428 US 106 at 112.

[30] [1992] USSC 78; (1992) 119 L Ed (2d) 351 at 364.

[31] See also United States v Hays [1995] USSC 82; (1995) 132 L Ed (2d) 635 at 642.

[32] [1921] HCA 20; (1921) 29 CLR 257 at 265-267.

[33] Part XII was repealed by the Statute Law Revision Act 1934 (Cth).

[34] Attorney-General (Vict) v The Commonwealth [1962] HCA 37; (1962) 107 CLR 529.

[35] [1991] HCA 53; (1991) 173 CLR 289.

[36] [1991] HCA 53; (1991) 173 CLR 289 at 303.

[37] [1921] HCA 20; (1921) 29 CLR 257 at 266.

[38] [1991] HCA 53; (1991) 173 CLR 289 at 303.

[39] This was a dissenting judgment, but nothing turns upon this for present purposes.

[40] [1991] HCA 53; (1991) 173 CLR 289 at 316-317.

[41] (1983) 152 CLR 570 at 609.

[42] [1975] HCA 43; (1975) 134 CLR 298 at 325.

[43] [1945] HCA 15; (1945) 71 CLR 545 at 570.

[44] [1908] HCA 94; (1908) 6 CLR 469.

[45] [1912] HCA 94; (1912) 15 CLR 182.

[46] [1943] HCA 19; (1943) 67 CLR 335.

[47] [1943] HCA 21; (1943) 67 CLR 347.

[48] [1949] HCA 44; (1949) 79 CLR 201 at 257.

[49] [1949] HCA 44; (1949) 79 CLR 201 at 257.

[50] The phrase used in Diamond v Charles [1986] USSC 90; (1986) 476 US 54 at 64. See also at 65, and see further Doe v Bolton [1973] USSC 40; (1973) 410 US 179 at 188; Planned Parenthood of Missouri v Danforth [1976] USSC 160; (1976) 428 US 52 at 62; Hardwick v Bowers [1985] USCA11 746; (1985) 760 F 2d 1202 at 1204-1206 (rev on other grounds: [1986] USSC 194; (1986) 478 US 186); Compassion In Dying v State of Washington [1996] USCA9 1537; (1996) 79 F 3d 790 at 795-796, 841-842, 843-844; Quill v Vacco [1996] USCA2 257; (1996) 80 F 3d 716 at 722-723.

[51] University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 at 457-458.

[52] cf Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582; Oil Basins Ltd v The Commonwealth [1993] HCA 60; (1993) 178 CLR 643 at 649.