ALBERT LANGER v. AUSTRALIAN ELECTORAL COMMISSION No. VG 96 of 1996 FED No. 143/96 Procedure - Jurisdiction - Contempt - Appeals COURT IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY GENERAL DIVISION BLACK CJ, LOCKHART AND BEAUMONT JJ HRNG MELBOURNE, 7 March 1996 #DATE 7:3:1996 #ADD 27:3:1996 The appellant appeared in person. Counsel for the respondent: Dr P Buchanan QC and Mr R Webster Solicitors for the respondent: Australian Government Solicitor Mr G T Pagone appeared as amicus curiae ORDER THE COURT ORDERS THAT: 1. The appeal against the sentence imposed by the Supreme Court on 14 February 1996 be allowed. 2. The order of the Supreme Court made on 14 February 1996 be varied by substituting as the term of imprisonment a term expiring on the rising of this Court on this day, 7 March 1996. 3. The appeal be otherwise dismissed. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules. JUDGE1 REASONS FOR JUDGMENT (No. 2) INTRODUCTION BLACK CJ, LOCKHART AND BEAUMONT JJ The background to this aspect of the appeal, as mentioned in our reasons for judgment published on 1 March 1996, is that Mr. Langer had foreshadowed an application for leave to amend his notice of appeal so as to include an appeal against the contempt order made by Beach J on 14 February 1996. Under that order, Mr. Langer was sentenced to be imprisoned until 30 April 1996. In accordance with directions given on 1 March by the Chief Justice, Mr. Langer has now filed a supplementary notice of appeal seeking to challenge this order. Further, it will be recalled that in our order dismissing Mr. Langer's appeal against the injunction, it was stated that the dismissal did not extend to the present question. JURISDICTION OF THE FEDERAL COURT TO ENTERTAIN THIS ASPECT OF THE APPEAL 2. As we noted in our previous reasons, s.383(8) of the Electoral Act 1918 invests a "prescribed court" (in this instance the Supreme Court of Victoria) with federal jurisdiction to hear and determine an application under s.383(1) for the grant of an injunction restraining a person from engaging in the conduct there described. 3. Section 383(8) relevantly provides: "383. ... (8) A prescribed court (being a court of a State) is invested with federal jurisdiction ... with respect to all matters arising under this section." 4. By s.383(10) it is provided: "383. ... (10) The powers conferred on a prescribed court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise." 5. As we also noted in our earlier reasons, appellate jurisdiction in matters arising under s.383 is conferred upon the Federal Court by s.383(9), by providing: "383. ... (9) An appeal lies to the Federal Court of Australia from a judgment or order of a prescribed court exercising jurisdiction under this section." 6. Although a question emerges for our consideration as to whether the present aspect of the appeal is part of the "matter" arising under s.383, it is clear that the Federal Court's appellate jurisdiction extends to all orders, whether final or interlocutory, made in such a matter, although, of course, in the case of an interlocutory order, s.24(1A) of the Federal Court of Australia Act requires the grant of leave to appeal. We have already granted that leave in this appeal. 7. In determining whether the present aspect of the appeal was, for the purposes of the federal jurisdiction, vested by s.383 in the Supreme Court in the first instance, and, on appeal, vested in this Court, it is first necessary to have regard to the circumstances in which the order was made by Beach J on 14 February. Those circumstances were described by his Honour as follows: "Immediately following the delivery of my reasons for judgment (on 8 February) the defendant stated that he did not propose to comply with the order, whereupon I warned him of the possible consequences of his behaviour in that regard. Despite that warning the defendant left the court and shortly thereafter held a press conference in the street outside the court. During that press conference the defendant distributed leaflets (described in the reasons dated 8 February) designed to encourage electors to fill in their ballot papers at the forthcoming election otherwise than in accordance with s.240 of the Act. ... In my opinion, it would be difficult to imagine a clearer or more blatant contempt of court. The defendant now contends that this Court had no jurisdiction to make the order I did on 8 February. In my opinion, such an argument cannot be sustained. This Court is given express power to grant injunctive relief of the nature of the relief in question by s.383 of the Act. It is clear to me that the defendant does not appreciate that one of the paramount features of a democracy is that its citizens obey the rule of law. If a citizen in our society wishes to challenge the validity of the law passed by the Parliament, and there have been many instances in this country where such challenges have been successful, then there is ample opportunity for him to do so. But until such time as a law has been declared to be invalid by a court having jurisdiction to make such a declaration it is the duty of all citizens to obey that law and it is the duty of the courts to enforce the law. In the present case the defendant challenged the validity of s.329A of the Act before the High Court. On 7 February last the High Court dismissed his challenge and declared that s.329A was a valid enactment of the Parliament of the Commonwealth. It is clear to me that not only has the defendant breached the order I made on 8 February but that if he is not prevented from doing so he will continue to breach the order. In that situation the defendant leaves me with no alternative but to sentence him to a term of imprisonment." Beach J then imposed the sentence. 8. In traditional terms, both as a matter of form and of substance, this was a proceeding for civil, rather than criminal, contempt. But in a recent decision, Witham v Holloway (1995) 131 ALR 401, the High Court has seriously questioned the validity of the distinction between civil and criminal contempt. Brennan, Deane, Toohey and Gaudron JJ said (at 407-8): "... proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown ... their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri ... that punitive and remedial objects are, in the words of Salmon LJ 'inextricably intermixed'. Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as 'punitive' and others as 'remedial or coercive'. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory." 9. The main question in Witham was whether a charge of "civil" contempt must be proved beyond reasonable doubt. But, in coming to the conclusion that all charges of contempt, including "civil" ones, must be so proved, their Honours proceeded, as the passage cited indicates, upon the basis that, even in proceedings alleging breach of an order, as happened in the present case, the punitive and remedial objects are "inextricably intermixed". 10. In our opinion, it follows from a consideration of the circumstances in which the order was made by Beach J on 14 February and from its mixed object, that important elements in the decision to make that order were the validity and correctness of the decision to grant the injunction made on 8 February, and consequently, upholding the injunction as an exercise of judicial power. It further follows, in our view, that the presence of these elements may be seen as sufficiently close to the application for the injunction itself to warrant the characterisation of the proceedings for contempt as part of the same "matter". That is to say, we are of the opinion that the investment of federal jurisdiction under s.383, both at first instance and on appeal, carries with it, not only the jurisdiction to hear and determine the application for injunction, but also, as an incident of that grant of jurisdiction, and as part of the same "matter", the power to deal with a charge of contempt for breach of an order made in that connection. This conclusion flows, we think, from the settled principles which establish the existence of this Court's accrued jurisdiction, notwithstanding the dismissal of the appeal from the grant of the injunction (see, e.g., Burgundy Royale Investments Pty. Ltd. v Westpac Banking Corporation (1987) 18 FCR 212 at 219). 11. Put differently, we are of the view that the decision at first instance both to grant the injunction and to enforce it by the sentence imposed were, in truth, part of the same "matter". It must follow, we think, that the position on any appeal, in terms of jurisdiction, must be the same, and that absent a frivolous or colourable claim, accrued or pendent jurisdiction on the appeal does not depend upon the success of the federal claim (see also s.22 of the Federal Court of Australia Act; cf. Pitfield v Franki (1970) 123 CLR 448 at 459; The Queen v Cook; Ex parte Twigg (1980) 147 CLR 15 at 29. See further the discussion of the analogous American cases in Wright, Law of Federal Courts, 5th ed., at 98-9, 113). 12. If it be needed, we are also of the view that the "associated" jurisdiction conferred by s.32 of the Federal Court of Australia Act would be available to entertain the present aspect of the appeal. To borrow the language of Davies J in International Currency Trading Corporation Pty. Ltd. v Deutsche Bank AG 94 ATC 4,475 (at 4,483), the claims being the appeal against the injunction and the appeal against the order of sentence enforcing the injunction are "intermingled" so as to attract the Court's associated jurisdiction for present purposes. 13. In our view, this Court does have jurisdiction to deal with the aspect of the appeal now before us. The contrary is not now suggested by counsel for the Commission. Counsel sought leave to intervene on behalf of the Human Rights and Equal Opportunity Commission, as noted in our earlier judgment, but we heard him as amicus curiae. He submitted that the Court has jurisdiction to deal with this aspect of the appeal. But it is of course necessary for the Court itself to be satisfied that it has jurisdiction. 14. In the circumstances, it is not necessary that we consider whether the cross-vesting legislation was also applicable here (cf. Rommelag AG v Delta West Pty Ltd (1995) 57 FCR 112). 15. On the hearing of the contempt application, Mr Langer appeared without legal representation. He made it clear to Beach J, as his Honour noted in the reasons on sentence, that he asserted that the Court had no power to grant the injunction ordered on 8 February. That became the major issue in the argument on the contempt application. 16. We have set out above his Honour's reasons on sentence. As has been seen, Beach J first addressed the question of the power to grant the injunction. That can no longer be an issue for present purposes. His Honour next found that Mr Langer breached the order and that, if he were not prevented from doing so, he would continue to breach it. Beach J then concluded that this left the Court with no alternative but to sentence Mr Langer to a term of imprisonment and imposed a term amounting to ten weeks. 17. On this appeal, Mr Langer contended that the evidence before the Supreme Court, although not contested as to its factual accuracy, was insufficient to support the inference that he had the requisite intent. We do not accept that argument. To the contrary, we consider that the finding of intent was fully justified. Accordingly, we would dismiss the appeal against the conviction for contempt of court. 18. We turn now to the appeal against sentence. 19. The general principles dealing with imprisonment for "civil" contempt are stated in Halsbury's Laws of Australia, Vol. 5 at 105-505. As Halsbury noted, committal to prison for non-compliance with an order is only to be ordered in serious cases. Moreover, in some situations it will be appropriate to suspend the execution of an order for imprisonment on the condition that the contemnor comply with specified terms; and even upon a breach of a condition of suspension the court would have a discretion whether to order imprisonment. 20. The general principles with respect to the power of an appellate court to interfere in the exercise of the judicial discretion of a sentencing judge are well settled. They were stated by Dixon, Evatt and McTiernan JJ in the following well known passage in House v The King (1936) 55 CLR 499 at 504-505. "But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow ((1908) 1 Cr App R 28, at p 29). Lord Reading LCJ said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff ((1914) 10 Cr App R 107)). Lord Hewart LCJ has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar (((1928) 21 Cr App R 19 at p 20))." 21. On the hearing of the appeal, the Commission informed the Court that "its interest is limited to the due conduct of elections, and its interests are not served by the imprisonment of the appellant after the date of the election." This statement is not, of course, by any means determinative of the present question. 22. Assuming that it was proper to order immediate imprisonment, it does not appear from the reasons given by his Honour why a term of as much as ten weeks was thought to be appropriate in the circumstances. As we have said, any term of imprisonment, particularly a term of ten weeks, should be imposed only in a serious case. In our view, a term of that length is, on its face, too long and it is appropriate that an appellate court should now intervene. 23. We are further of the view that it is appropriate that this Court now address the exercise of the sentencing discretion. In this connection, we note that none of the relevant facts could seriously be disputed. In exercising our discretion, we take into account the attitude of Mr Langer in his rejection of the authority of the judicial system to grant the present injunction which, however, stems from a belief he holds that the laws sought to be enforced against him are not valid and are destructive of true freedom of electoral choice. We have concluded that, in all the circumstances, a term of imprisonment is the appropriate sentence. This would, we think, reflect the gravity of the contempt, given the public importance of compliance with the laws made by the Parliament for the conduct of elections. The imposition of a fine would not adequately reflect this. The question remains of the term of that imprisonment. 24. We have referred earlier to the attitude of the Commission on sentence, but, in our opinion, it is proper that a broader view be taken of the whole matter. Although the Commission's responsibilities may be seen to be limited to the period expiring at 6 pm on 2 March, there are other considerations to be taken into account. In particular, as we have said, an important element in the contempt is the attempt by Mr Langer to challenge the authority of the court system to grant the injunction in the enforcement of a law made by the Parliament for the conduct of elections. This should be reflected in the term of imprisonment. In our view, a term of imprisonment in the order of 21 days is proper. 25. We would vary the order of the Supreme Court accordingly. Since Mr Langer has already served a term of that period, we propose to order his release forthwith. COSTS 1. We vacate the order for costs made on 1 March. 2. We now order that there be no order for the costs of any aspect of the appeal, that is (a) the aspect of the appeal dealt with on 1 March; and (b) the aspect dealt with today.