Davis v Commonwealth [1986] HCA 66; (1986) 68 ALR 18; (1986) 61 ALJR 32 (13 November 1986)

HIGH COURT OF AUSTRALIA

LOUIS EDWARD DAVIS AND OTHERS v. THE COMMONWEALTH OF AUSTRALIA AND ANOTHER
S86/004

High Court of Australia
Gibbs C.J.(1)

CATCHWORDS

HEARING

Canberra
13:11:1986
Solicitor for the Applicants: D.J. Colquhoun-Kerr
Solicitor for the Respondents: Australian Government Solicitor

DECISION

GIBBS C.J.: The present application was brought before me by way of summons seeking an order pursuant to O.26 r.18 of the High Court Rules, or alternatively O.20 r.29 of those Rules, that the statement of claim filed in these proceedings be struck out and that judgment be entered for the defendants. The applicants are the Commonwealth of Australia and the Australian Bicentennial Authority ("the Authority"), the defendants in the action, and the respondents to the summons are Messrs Davis, Santo and Creighton, who are the plaintiffs in the action. At the hearing of the application Mr Gummow, for the applicants, did not seek an order as wide as that claimed in the summons. He sought instead an order under O.20 r.29 striking out certain paragraphs only of the statement of claim, namely pars.5-18, 29, 40, 41, 47 and 48. As will be seen those paragraphs (with the exception of pars.47 and 48) allege matters which are said to be relevant to the plaintiffs' standing to bring the action.

2. By the statement of claim the plaintiffs seek a declaration that ss.6-18, 22, 23 and 25 of the Australian Bicentennial Authority Act 1980 (Cth), as amended ("the Act"), are beyond the legislative power of the Commonwealth and are void and of no effect. The Act, as its name suggests, is a law with respect to the Authority, which is a company by that name registered under the Companies Ordinance 1962 (A.C.T.). The Act says nothing as to the functions of the Authority but cl.3 of the Memorandum of Association of the Authority, which is set out in par.20 of the statement of claim, provides, inter alia:

"The primary object for which the Authority is
established is to formulate, to plan, to develop,
to promote, to co-ordinate and to implement,
consistently with applicable legislation of the
Parliament of the Commonwealth, a national
programme of celebrations and activities ("the
programme") to commemorate the bicentenary in 1988
of the first European settlement in Australia ..."

3. It is unnecessary for present purposes to set out in full the provisions of the Act whose validity is challenged. By s.6 the Authority is required to promote its objects and exercise its powers in accordance with such directions (if any) with respect to the policies to be followed by it as may from time to time be given to its Board of Directors by the Minister in writing. Section 7, inter alia, gives power to the Prime Minister to terminate the appointment of the Chairman of the Authority in certain circumstances. Section 8 provides that the appointment of certain of the senior officers of the Authority is subject to the approval of the Chairman and s.9 provides that the office of Chairman and the offices of the other directors of the Authority are public offices for the purposes of Pt.II of the Remuneration Tribunals Act 1973 (Cth), as amended. Section 10 provides:

"(1) There are payable to the Authority such moneys
as are appropriated by the Parliament for the
purposes of the Authority.

(2) The Minister for Finance may give directions
as to the amounts in which, and the times at which,
moneys referred to in sub-section (1) are to be
paid to the Authority."

It is alleged in the statement of claim (pars.27 and 28) that the Parliament of the Commonwealth has appropriated, inter alia, the sum of $17,952,000 for the purposes of the Authority and that pursuant to s.10(2) the Minister for Finance has effected the payment of that sum to the Authority. Section 11 provides for the preparation of estimates, and provides that moneys of the Authority shall not be expended otherwise than in accordance with estimates approved by the Minister. Sections 12-14 limit the purposes for which and the manner in which moneys of the Authority may be applied, invested or borrowed. Section 15 enables the Authority to appoint officers and employees and provides that the terms and conditions of service of employment of persons so appointed or engaged are such as are determined by the Authority after consultation with the Public Service Board. By ss.16, 17 and 18 respectively the Authority is deemed to be an intergovernmental body to which the Public Accounts Committee Act 1951 (Cth) applies, a Commonwealth authority for the purposes of Pt.IV of the Public Service Act 1922 (Cth) and an approved authority for the purposes of the Superannuation Act 1976 (Cth). Section 22(1) of the Act provides as follows:

"Subject to sub-section (4), a person who,
without the consent in writing of the Authority -

(a) uses the name, or an abbreviation of the

name, of the Authority, a prescribed
symbol or a prescribed expression in
connection with a business, trade,
profession or occupation;

(b) sells, offers for sale, exposes for sale,

hires or lets for hire or otherwise has
in his possession for sale or hire, goods
to which the name, or an abbreviation of
the name, of the Authority, a prescribed
symbol or a prescribed expression has
been applied;

(c) uses the name, or an abbreviation of the

name, of the Authority, a prescribed
symbol or a prescribed expression in
relation to goods or to the promotion, by
any means, of the supply or use of goods;
or

(d) imports into Australia for sale, or for

use for the purposes of any trade or
business, any article to which the name,
or an abbreviation of the name, of the
Authority, a prescribed symbol or a
prescribed expression has been applied,
outside Australia, without the consent in
writing of the Authority,

is guilty of an offence against this section."

Sub-section (3) of s.22 provides, inter alia, that a person (other than a body corporate) who is guilty of an offence against the section is punishable, upon conviction, by a fine not exceeding $2,000. By s.23, all articles or goods by means of which, or in relation to which, an offence against s.22(1) is committed shall be forfeited to the Commonwealth. Section 25 imposes on the Board of the Authority an obligation to submit annual reports accompanied by accounts to (amongst others) the Minister and requires the Minister to cause a copy of the report and accompanying accounts to be laid before the Parliament.

4. The statement of claim reveals that the plaintiffs claim to have standing to bring the action on three separate grounds. One of those grounds is that the plaintiffs have a direct pecuniary interest in the matter. It is alleged in pars.2, 42, 43, 44 and 45 of the statement of claim that the first plaintiff conducts a business in the course of which he has designed and printed for sale certain clothing bearing the name of the Authority and certain symbols and expressions which are prescribed symbols and expressions within s.22 of the Act and that the Authority has refused to consent to the use of that name and those symbols and expressions upon such clothing. It is further alleged by par.46 that the first plaintiff intends to sell such clothing by wholesale to, inter alios, the second and third plaintiffs, who intend to distribute and retail that clothing. The defendants do not seek to strike out these paragraphs, and do not dispute that the plaintiffs have standing to challenge ss.22 and 23 of the Act.

5. The next ground on which the plaintiffs claim standing is that they are Aborigines and as such have a special interest in the subject-matter of the action. Paragraph 6 of the statement of claim is as follows:

"Each of the Plaintiffs is a descendant of
those indigenous people of Australia whose
descendants are now known as Aborigines and Torres
Strait Islanders (hereinafter referred to as
'Aborigines')."

Paragraphs 7-18 then set out facts intended to support the claim that Aborigines have a special interest to challenge the celebration of the 200th anniversary of white settlement in Australia. Paragraphs 7 and 8 refer to the proclamation of sovereignty by Captain Cook and the landing at Sydney Cove by Captain Phillip and the fact that he claimed possession of Eastern Australia on behalf of the Crown of the United Kingdom. Paragraph 9 alleges that the establishment of a settlement by Captain Phillip and others subject to his command in the vicinity of Sydney Cove dispossessed the indigenous Aboriginal people of that region of their traditional land. Paragraph 10 alleges that prior to the commencement of the twentieth century all the remaining parts of the continent were claimed and occupied for and on behalf of the Crown of the United Kingdom and par.11 refers to the establishment of the Commonwealth and asserts that the Commonwealth continues to claim sovereignty over the continent as successor in title to the rights and interests of the United Kingdom. Paragraphs 12 and 13 are as follows:

"12. From time immemorial until the events pleaded
in paragraphs 7 and 8 hereof occurred, the
Aborigines of Australia were in actual possession
of the entire nation of Australia.

13. The claims of Captain Cook, Captain Phillip
and others as aforesaid on behalf of the Crown of
the United Kingdom of Great Britain and Ireland
were contrary to the rights, privileges, interests,
claims and entitlements of the Aborigines both
individually and of the Aboriginal community as a
whole."

Paragraphs 14 and 15 allege that since 1788 there has been a continuing influx of non-Aboriginal persons into the continent and that there are now in Australia approximately 15! million persons of non-Aboriginal descent and approximately 200,000 persons who identify themselves as Aborigines. Paragraphs 16-18 should be set out in full:

"16. On and after the 26th day of January 1788 when
Captain Arthur Phillip R.N. landed at Sydney Cove,
servants and agents of the United Kingdom of Great
Britain and Ireland and of its colonies and, from
the date of establishment of the First Defendant,
servants and agents of the First Defendant and the
various States established pursuant to the said
Australian Constitution Act 1900, and persons
claiming through and under the aforesaid, have
dispossessed Aborigines from their lands and have
prevented many Aborigines from entering into
possession of their lands and from hunting and
fishing and enjoyment of usufructuary rights in
respect of their lands and have thereby destroyed
the culture of the Aborigines, their religious
customs, language and their way of life that they
would otherwise have enjoyed.

17. On or after the 26th day of January 1788 when
Captain Arthur Phillip R.N. landed at Sydney Cove
servants and agents of the United Kingdom of Great
Britain and Ireland and of its colonies and, from
the date of establishment of the First Defendant,
servants and agents of the First Defendant and the
various States established pursuant to the said
Australian Constitution Act 1900 and persons
claiming through or under the aforesaid, have
mistreated the Aborigines by, inter alia, the
genocide and extermination of all full blooded
Aborigines in Tasmania and the attempted genocide
of Aborigines in other parts of Australia, the
negligent or wilful introduction of diseases for
which the Aborigines lacked immunity, the
establishment of racially segregated reserves, the
forced abandonment of traditional customs,
practices and religious ceremonies, the forced
taking of children from Aboriginal families to be
trained as servants for the non-indigenous
settlers, and many other indignities and
deprivations.

18. As a consequence of the several matters
pleaded above Aborigines remain an oppressed and
deprived minority within their own nation, who
suffer higher rates of unemployment, lower levels
of educational attainment, poorer health, higher
mortality and in particular higher infant
mortality, who receive substantially lower average
incomes, and who benefit from less adequate housing
than do non-Aboriginal Australians."

Paragraph 40 alleges, inter alia, that the plaintiffs are disturbed at the passage of the Act, the celebration of the 200th anniversary and the expenditure of public money thereon "because they believe, and the fact is, that the arrival and settlement of non-indigenous persons as aforesaid led directly to the occurrence of matters pleaded in paragraphs 16 to 18 hereof". Paragraph 41 is as follows:

"The Plaintiffs are members of a defined class
of persons, the Aborigines, who have a special
interest in challenging the validity of laws going
towards the purpose of celebrating the events as
aforesaid."

6. The further ground on which the plaintiffs claim to be entitled to standing is that they are taxpayers. Paragraph 5 of the statement of claim is in the following terms:

"Each of the Plaintiffs are individual
taxpayers and are liable to pay, inter alia, income
tax to the First Defendant pursuant to the terms of
the Income Tax Assessment Act 1936 as amended and
in force from time to time."

Mr Gummow objected that this paragraph does not make it clear whether the plaintiffs pay or are liable to pay tax in any particular year. An objection of that kind is not appropriate on an application to strike out a part of a pleading but in any case I do not accept that an allegation that the plaintiffs are taxpayers lacks meaning or clarity. Paragraph 29 of the statement of claim goes on to state that by reason of the expenditure pleaded in pars.26-28, the Commonwealth has been or will be likely to be obliged to increase the burden of revenue collection upon the taxpayers of Australia.

7. By O.20 r.29 the Court or a Justice is given power, at any stage of the proceedings, to order to be struck out or amended any matter in an endorsement or pleading which is unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the action. Allegations of fact which are truly relevant to an arguable case which the party pleading wishes to put will not answer the description contained in the rule. Further, it is well settled that under a rule of that kind an order striking out a pleading or part of a pleading will only be made in a plain and obvious case: see, for example, Hubbuck & Sons v. Wilkinson, Heywood & Clark (1899) 1 QB 86, at p 91; Nagle v. Feilden (1966) 2 QB 633, at pp 648, 651. The Court will not ordinarily decide a debatable question of law on an application made under the rule.

8. The question that then arises is whether it is at least arguable that the fact that the plaintiffs are Aborigines, or are taxpayers, if proved, will be sufficient to give them standing to challenge the validity of the Act. The traditional view is that a member of the public has standing to bring an action challenging the validity of an Act of Parliament only if he establishes that the statute affects his private rights or interests or, on a rather more liberal view of the matter, only if he establishes that he is more particularly affected than other people. A recent discussion of the question is to be found in Robinson v. Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283, at pp 292, 301-302, 315, 327, 344-345. An analogous question, what interest is sufficient to enable a plaintiff to bring an action to prevent the violation of a public right or to enforce the performance of a public duty, was more recently considered in Australian Conservation Foundation v. The Commonwealth (1980) 146 CLR 493 and Onus v. Alcoa of Australia Ltd. [1981] HCA 50; (1981) 149 CLR 27. The view of the majority in each of those cases was that a person has standing to bring an action of that kind if he has a special interest in the subject-matter of the action, but that a mere intellectual or emotional concern would not suffice to give locus standi: Australian Conservation Foundation v. The Commonwealth, at pp 526-531, 537-540, 547-552; Onus v. Alcoa of Australia Ltd., at pp 35-38, 41-43, 43, 44, 60-62, 72-74; cf. at pp 49-56. A strong belief on the part of the plaintiffs that the Act is offensive and undesirable as well as unconstitutional would not in itself give them standing to challenge its validity. However it was submitted on behalf of the plaintiffs that as Aborigines, descendants of the indigenous inhabitants of this country, they have a special interest in objecting to a statute which is designed to assist the celebration of the settlement and occupation of Australia by peoples who were not indigenous to this continent. It was further submitted that this interest goes beyond a mere emotional or intellectual concern, and that the cultural and civic interests of the plaintiffs are affected. As at present advised, although I agree that the plaintiffs, as Aborigines, are members of a class which may have a special interest in challenging the validity of the Act, I find difficulty in accepting that the interest is other than emotional or intellectual. Having regard to the principles which govern applications of this kind it is not necessary for me to express any concluded view whether the plaintiffs have an interest sufficient to give them standing; it is enough to say that it seems to me that the plaintiffs' argument cannot be dismissed as frivolous or hopeless - opinions may differ upon its acceptability and it is not plain and beyond debate that it must fail. It would therefore be wrong to strike out pars.6 and 41 of the statement of claim.

9. Paragraphs 7-18 and par.40 seem to me to stand in a different position. Paragraph 40 asserts no interest other than an emotional concern generated in part by the matters alleged in pars.16-18. Paragraphs 7-15 are introductory to pars.16-18 and pars.7-18 stand or fall together. Paragraphs 16-18 include allegations of past wrongs done to the Aboriginal people with the result, so it is pleaded, that Aborigines have become an oppressed and deprived minority. Allegations of that kind are not relevant to the question whether the plaintiffs have standing to challenge the Act. It is not pleaded that the alleged wrongs were done to the plaintiffs or that the plaintiffs individually have suffered the consequences of them; rather it is said that wrongs done to their race have caused the plaintiffs to be offended and distressed. Further the provisions of the Act do not have any direct connexion with those alleged wrongs or their effect. The allegations now in question may explain the plaintiffs' feelings, but do not give them any special interest additional to that which may exist simply because they are Aborigines. Moreover, although some of the matters of history alleged might be regarded as matters of notoriety, other allegations in pars.7-18 would, if contested, give rise to issues of fact, which might result in a very lengthy trial. Indeed, the trial of the issues raised, particularly by pars.9, 13, 16, 17 and 18, would be likely to take very much longer than the determination of the substantial issue in the action. The fair trial of the action would in my opinion be prejudiced if the issue of standing were allowed to dominate the proceedings and overshadow the substantial question of validity. The allegations in pars.7-18 and par.40 would in my opinion tend to prejudice, embarrass or delay the fair trial of the action within O.20 r.29 and should for that reason be struck out.

10. On behalf of the plaintiffs it was submitted that it would be inappropriate to deal with the issue of standing at this stage. Questions of standing are decided not in the abstract, but in relation to the nature of the statute whose validity is in question. In some cases therefore it will be convenient to defer the question of standing until the merits of the case are considered: see Robinson v. Western Australian Museum, at pp 302-303; Onus v. Alcoa of Australia Ltd., at pp 38-39 and Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1981] UKHL 2; (1982) AC 617, at pp 630, 636. Whether the question of standing should be determined in advance of the merits or not lies within the discretion of the court. In the present case, I am not determining whether the plaintiffs have standing but whether the allegations in pars.7-18 and 40 are material to that issue. In my opinion the balance of convenience strongly favours dealing with that question now, and, as I have indicated, I hold that they are not material.

11. The final ground on which the plaintiffs base their standing to sue is that they are taxpayers. In Attorney-General (Vict.); Ex rel. Black v. The Commonwealth [1981] HCA 2; (1981) 146 CLR 559, at pp 588-590 I left open the question whether the fact that the plaintiffs in that case were taxpayers, and in some instances parents of children at government schools, gave them a special interest to challenge a law under which financial aid was given to the educational activities of church schools. Murphy J., on the other hand, at p.634, expressed the wide view that "Any one of the people of the Commonwealth has the standing to proceed in the courts to secure the observance of constitutional guarantees". As Mr Colquhoun-Kerr pointed out in his helpful address on behalf of the plaintiffs, there has in recent years been a marked relaxation of the rules regarding standing in both England and Canada. In Reg. v. H.M. Treasury, Ex parte Smedley (1985) QB 657 it seems to have been accepted that an interest as a taxpayer and an elector is enough to give standing to challenge delegated legislation under which public moneys would be disbursed. That case, and Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd., turned on the meaning of the words "sufficient interest" in O.53 r.3 of the Rules of the Supreme Court (U.K.), although that does not mean that they are of no assistance in deciding the present question. In Canada the majority of the Supreme Court has taken the view that a person who is not directly affected by legislation may nevertheless have standing to challenge it if he has a genuine interest as a citizen in its validity and if there is no other reasonable and effective manner in which the issue may be brought before the court: Minister of Justice of Canada v. Borowski (1981) 130 DLR (3d) 588. On the other hand, the tendency in the United States seems to be towards restricting rather than relaxing rules as to standing: see Valley Forge College v. Americans United [1982] USSC 16; (1982) 454 US 464 (70 L Ed 2d 700). It would not be right for me on this application to decide whether the fact that the plaintiffs are taxpayers gives them standing to challenge the validity of the Act under which public moneys have been and will be disbursed. The question is arguable and that is enough. I shall not strike out pars.5 and 29 which are material to this question.

12. Finally, and rather as an afterthought, the defendants complained that pars.47 and 48 of the statement of claim are embarrassing. Those paragraphs read as follows:

"47. The several provisions of the Act referred to
above, are incapable of being sustained under any
head of legislative power granted to the First
Defendant by the Australian Constitution.

48. In the premises the provisions of the Act and
more particularly Sections 6, 7, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 22, 23 and 25 are ultra
vires and beyond the legislative powers of the
First Defendant."

The submission was that although a declaration is sought only in respect of some sections of the Act the paragraphs plead that the whole of the Act is invalid. Those paragraphs in my opinion are not embarrassing or otherwise within the scope of O.20 r.29. I can see no reason why plaintiffs who claim that particular sections of an Act are invalid should not plead, if it is their case, that the Act as a whole is invalid - the invalidity of the whole would involve the invalidity of the parts.

13. For the reasons I have given I order as follows:

Order that pars.7-18 and 40 be struck out of the

statement of claim.

14. No order as to the costs of this application.

ORDER

Order that pars.7-18 and 40 be struck out of the statement of claim.

No order as to the costs of this application.